i iii. imiimmn\in\m\miunm\iimmmuiiinmuw\' Lb^W DOok>5- I )a.r\cron' lAikitf\ey VompATvy Sar. Franc iscoi THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW yl LV 06 SOUTH iWOADWAY A TREATISE ON THE LAW OF Personal Property BY JAMES SCHOULER, LL.D. Ex-Professor in the Boston University Law School, and Author of Treatises on " Wills, Executors and Administrators," "The Domestic Relations," "Bailments, including Carriers" FIFTH EDITION ALBANY, N. Y. MATTHEW BENDER & COMPANY INCORPORATED 1918 CopraiGHT, 1873, 1884. 1896 and 1901 By JAMES SCHOULER COPTKIGHT, 1918 By MATTHEW BENDER & COMPANY, Incorporated T COMMnv t PREFACE TO THE FIFTH EDITION Foe the present edition this volume has been re-enlarged, to conform with the original work, and the development of the whole subject, with the latest cases, English and American, has been brought down to the present date. Arthur W. Elakemore, Esq., of the Boston Bar, has aided in the annotation and collection of cases for this volume; and other competent assistance has been given in preparing the citations, index and tables. But the author has personally edited and revised the entire volume with care, and he submits it as his own responsible work. Jx\MES SCHOl'LER. January 10, 1918. (iii) 643/ PREFACE TO THE FIRST EDITION " OuE law-books," observes one of America's ripest professional scholars, — Mr. Bishop, — " do not, to any great extent, treat of personal property under a separate head, the same as they do of real estate. A treatise which shall do this well is really a desider- atum in legal literature." Chancing to read this passage some years ago, I was much im- pressed by its force and originality. Subsequent study sensed to convince me more fully that Mr. Bishop's remark was a just one; and the favor with which my former treatise on the Domestic Relations was received by the professional public induced me to seek to supply this desideratum by my own efforts. Such is my explanation for venturing to appear as a text-writer once more — and probably for the last time — with a work which I hope will be found to cover new ground, and to rank among the original as well as useful law-books of the day. There are treatises, and good ones too, which deal with special branches of Personal Property law; but other topics have almost utterly escaped critical attention; nor am I aware of any modern writer who has before sought to map out the law of this vast subject so as to present an^-thing like an orderly and comprehensive sketch of principles. Mr. Williams's compact little volume on Personal Property enjoys, it is time, a well-deserved popularity ; but in scope and subject-matter that work differs essentially from the present ; and notwithstanding the care- ful annotations of American editors, it is likely to reuuiin, what the author designed it should be, a manual for English students in conveyancing, rather than a text-book suited to the more general wants of law-students and practising lawyers, and especially those of our o^vn land. Chancellor Kent devotes but little space in his Commentaries to the general characteristics of chattel law; and indeed some of its most interesting doctrines had hardly begun to (v) VI PRKi-ACE TO I'IKST Kl>lTIOX. nnfold when his busy pen was laid aside. I need hardly add that niackstone, living in a day when real predominated largely over personal wealth, furnishes little for our instruction. Property jurisprudence now reveals itself in two grand and independent divisions, American courts often shaping the rules and leading the way ; and there is room in the lawyer's library for a work on Per- sonal Property, elementary in its character, to serve as the com- panion of our many valuable treatises on Real Estate law. In one particular I desire to anticipate criticism. A work like this, which is made up in great part from the copious materials of some twenty volumes of the same size, deals necessarily with principles and not details; and it would be found impossible to cite or comment upon decided cases with anything like freedom or fulness, when discussing some of the larger topics. Leading cases, properly so called, have generally been referred to ; specimen cases are chosen where the field was too vast for minute selection ; and I have taken pains to refer accurately, at all times, to such works on special topics of Personal Property as would best supply all the precedents which I had omitted. But, besides, I have freely used materials of my owoi gathering throughout this book, especially as concerns the latest decisions ; while in chapters on the less familiar topics, such as Joint and Common Owners, Interest and Usury, Money, and Chattel Mortgages, the compilation of cases is entirely my own.* Seeking to dev elope an extensive subject in a natural order of progression, I have found myself unable to treat of the " Title to Personal Property " within the present limits. A second volume, devoted to that subject, and covering especially the important topics of Gift and Sale, would be required to complete the present work according to the original plan. But whether that volume shall over be Avritten, is doubtful ; nor am I unmindful that the legal profession is already supplied with good works on those topics, which may suiSce for their wants. At all events this volume gathers the matter most needed, and will be found complete in *NoTE (1017). The same may be said as to such topics treated here as Animals, Assignment, Emblements, and Liens. PEEFACE TO I'lEST EDITION. vii itself; and such as it is, I submit the work to an indulgent pro- fessional public, in the hope that it may prove useful, and hence successful. JAMES SCHOULER. Washington, D. C, February 21, 1873. TABLE OF CONTENTS PART I. INTRODUCTORY, PAGE § 1. General Division of the Subject 1 PART II. NATURE AND GENERAL INCIDENTS OF PERSONAL PROPERTY. CHAPTER I. PilRSONAL PROPERTi' IX GENERAL. § 2. Personal Property at the Common Law defined 2 § 3. Mobilit}^ the Leading Essential Quality of Personal Property. ... 3 § 4. Division of Things into Movables and Immovables ; Changes from the One Kind to the Other by Severance or Incorporation with Soil ' 3 § 5. Things Movable are Animate or Inanimate 5 § 6. Duration of Enjoyment considered: Peculiar Distinction at Com- mon Law between Freehold and Chattel 5 § 7. Personal Property or Chattels in our Law the Residuum of the Freehold 7 § 8. Wliat is a Chattel at the Common Law 7 § 9. Chattels Real and Chattels Personal 8 § 10. Fixtures, Heirlooms, and Emblements 9 § 11. Choses in Possession and Choses in Action 9 § 12. The Same Subject ; Better Classification would be into Corporeal and Incorporeal Chattels 12 § 13. The vSame Subject; Rights of Dominion affected by Title 14 § 14. The Same Subject; how Things Incorporeal become Corporeal. etc 14 § 15. The Same Subject; General Conclusion as to Corporeal and Incor- poreal Personal Property In § 16. Meaning of the Terms '* Goods," " Effects," " Things," etc 17 (ix) X TAliJ.i; OF OOiN'TKNTS, PAGE § 17. Application of "Estate" to Things Real, and "Property" to Tilings Personal 19 § 18. Classification into Ileal and Personal affected by Modern Legisla- tion 21 § 19. Chattels Real, Chattels Personal, and Chattels of a Mixed De- scription, to be considered in Order 21 CHAPTER II. CHATTELS REAL § 20. Chattels Real defined 23 § 21. Term of Years the only Important Chattel Real; Attendant Terms and Leases distinguished 23 § 22. Leases in General; their History, etc 24 § 23. When a Lease begins 26 § 24. Term of a Lease 27 § 25. Term of Lease as affected by Statute of Frauds; Written Lease required, etc 28 § 26. The Same Subject; whether a Seal is Essential; Efl'ect of Term not within Statute 31 § 27. Form of Lease 32 § 27a. Lease and Agreement for Lease distinguished 33 § 28. Rent or Recompense under a Lease 34 § 29. Covenants of a Lease 35 § 30. Covenants usual on the Les.sor's Part 36 §§ 31-33. Covenants usual on the Lessee's Part 40, 41, 44 § 34. Assignment of Lease ; Act of Parties 44 § 35. Assignment of Lease ; Operation of Law 46 § 36. Underletting distinguished from Assignment 48 § 37. Modes of terminating a Tenancy 49 § 38. The Same Subject; Lapse of Time; Merger; Surrender 49 § 39. The Same Subject : Forfeiture 51 § 40. The Same Subject ; Notice to Quit: Modes 52 § 41. Contingent Modes of terminating a Tenancy 55" § 42. Mutual Rights of Lessor and Lessee; Distress, Ejectment, etc. . . . 5.1 § 42a. Lea.ses follow General Rules of Contract 56 § 426. Leases of Offices' or Apartments 57 § 43. Terms of Years in English Sense of Trust Arrangements; Mort- gage of Terms 58 § 44. Whether Mortgages are Chattels Real 60 CHAPTER III. CHATTELS PERSONAL. § 45. What are Chattels Personal 62 § 46. Significance of the Word " Personal " in this Connection 63 TABLE OF co^■T::^•Ts. xi PAGE § 47. Corporeal Chattels first to be considered; next Chattels In- corporeal 63 §§ 48-50. Corporeal Chattels; Animals, Tame and Wild 64, 66, 69 § 51. Offspring of Domestic Animals; how owned 72 § 52. Property in a Person or Corpse 73 § 53. Vegetables, Minerals, etc.; Severance or Annexation 74 § 54. Money a Corporeal Chattel Personal 76 § 55. Ships and Vessels are Corporeal Chattels Personal 78 § 56. Miscellaneous Corporeal Chattels Personal 78 § 57. Civil-Law Distinctions among Movable Things 79 § 58. Incorporeal Chattels Personal, or Rights in Action, to be con- sidered 79 § 59. Debts, Claims, Demands, etc 79 § 60. Debts upon Security 80 § 61. Bank Deposits considered; General or Special Deposit 80 § 62, Various Instances of Incorporeal Chattels Personal 81 § 63. Legacies and Distributive Shares 82 § 64. Patent Rights and Copyrights 83 § 65. Insurance Policies 84 § 66. Annuities, Pensions, Salaries, etc 84 § 67. Incorporeal Personal Chattel; Right to ha distinguished from Evidence of Right 85 § 68. Stocks and Shares 85 § 69. Bills and Notes, Checks, etc 88 § 70. Bonds and Other Instruments for the Payment of Money 89 CILAPTER IV. PERSONAL CHATTELS CORPOEEAL AND INCORPOREAL CONTRASTED. § 71. Leading Distinctions between Corporeal and Incorporeal Chattels Perirenal 91 As to Assignment and Transfer; Early Doctrine 91 Assignment; the Subject continued; Old Rule of Law 92 Assignment; the Subject continued ; Rule of Equity 93 Assignment; the Subject continued; Modern Fusion of Equity and Common-Law Doctrines 96 The Same Subject; what may now be assigned 99 The Subject continued ; what Constitutes an Assignment 104 The Subject continued; Notice of Assignment to Debtor, etc 107 The Subject continued ; what an Assignment confers 109 The Subject continued; Disputing Consideration, etc., of Assign- ment ^1^ T1ie Subject continued; Assisnee's Rights and Remedies 112 Subject of Assignment as regulated by Statute 117 Negotiable Instruments excepted from the Old Rule of Assign- ment 118 § 72. § 73. § 74. § 75. § 76. § 77. § 78. § 79. § 80. s 81. § 82. § 83, •Xll TABLE OF CONTENTS. PAGE § 84. Indorsement as distinguished from Assignment 122 § 85. Various Classes of Negotiable Instruments considered 123 § 86. General Conclusion as to Assignment, etc.; Civil-Law Rule 124 § 87. As to Delivery; Chattels Corporeal and Incorporeal 125 § 88. Eule as to Transfer of a Ship or Vessel 126 § 89. As to Seizure and Attachment; Chattels Corporeal and Incorporeal 127 § 90. As to Larceny; Chattels Corporeal and Incorporeal 128 § 91. As to Husband's Marital Rights; Chattels Corporeal and In- corporeal 128 § 92. As to Survival of Remedies 129 § 93. As to Effect of Time upon Title; Statutes of Limitation 130 CHAPTER V. HEIELOOilS AND EMBLEMENTS. § 94. Border Line between Real and Personal; Heirlooms, Emble- ments, and Fixtures 132 §§ 9-5, 96. Heirlooms, their Nature and Incidents 132, 134 § 97. Heirlooms; Doctrine as to Wild Animals 135 § 98. Heirlooms; Doctrine as to Ttitle-Deeds, Keys, etc 136 § 99. Heirlooms; Final Observations 137 § 100. Emblements ; Rule as to Chattels Vegetable 139 § 101. Diverse Ownership of (Soil and Products; Statute of Frauds applied to Chattels Vegetable 141 § 102. Emblements; Title in Chattels Vegetable transmissible by Death 142 § 103. Emblements ; A.nnual Crops fit for Harvest 143 § 104. Doctrine of Emblements strictly so called 143 § 105. Doctrine of Emblements; Labor upon Crop required 145 § 106. Doctrine of Emblements; Unexpected Termination of Tenancy without Fault 146 § 107. Doctrine of Emblements; Right of taking, how exercised, etc... 150 § 108. " Away-going Crops " of Tenants for Years 150 § 109. Emblements, etc.. as concerns Mortgagees and Lien Claimants . . . 152 § 110. Emblements in the Civil Law 153 CHAPTER VI. FIXTURES. § 111. Fixtures the most Important of Exceptional Classes 154 § 112. Origin of Fixtures ; Definitions 154 § 113. Character of tlie Annexation to Land 156 § 114. Modern Tests with Reference to Fixtures 161 § 115. Slight or Constructive Annexation 162 § 115a. Purposes of Improvement: Pecuniary Considerations, etc 163 § 116. Assent to the Annexation ; Act of Severance 163 TABLE OF CONTENTS. Xlll PAGE § 117. General Conclusion as to determining the Eight to take away. . . 165 § 118. Situation of Contending Parties; Various Classes 166 § 119. Right to remove fixtures as between Heir and Executor 166 § 120. Right to remove Fixtures as between Life-Tenant and Remainder- Man, etc 169 §§ 121, 122. Right to remove Fixtures as between Landlord and Tenant 169, 173 Right to remove Fixtures as between Vendor and Vendee 177 Right to remove Fixtures as between Mortgagor and Mortgagee.. 178 Secret Arrangement*. ; Subsequent Parties without Notice 180 Right of Fixtures as between Personal Representative and Devisee 181 Eight of Fixtures in Miscellaneous Instances 182 Latest Test of Fixtures; General Conclusion 183 Time within which Fixtures should be removed 185 Liability to repair Damages caused by removing Fixtures 187 Rights of Action, etc., in General 188 Transfer of Fixtures ; Various Incidents 188 Various Examples as to Things which might appear Real or Personal ; Turpentine, Sap, Peat, etc 189 Various Examples continued ; Buildings on Another's Lands 190 Various Examples continued; Pews, Organs, Church Furniture, etc 191 § 133. Character of Property as Real or Personal; Doctrine of Equita- ble Conversion 192 CHAPTER VII. PERSONAL PBOPEETY IN EXPECTANCY. § 134. Time of Enjoyment of Personal Property to be considered 194 § 135. General Doctrine of Interests; Immediate or Expectant 194 § 136. How far this Doctrine applies to Personal Property 195 § 137. As to Personal Property; Interests, Immediate or Expectant. . . . 196 § 138. Expectant Interests in Per.-onaltj' under a Will 197 § 139. Expectant Interests created in Personalty by Deed of Trust, etc.. 199 § 140. Exception as to Perishable Chattels 200 § 141. Use by the Party in Immediate Interest 202 § 142. Rule applied to Animals 203 §§ 143, 143o. Rule applied to Stock and Bonds; Dividends, Interest Coupons, etc 203, 205 § 144. Income and Capital ; Life-Tenant and Remainder-Man 207 § 145. Rule of Apportionment applied 208 § 146. Rule against Perpetuities 209 § 147. Limits to Accumulations of Income ; Thelluason Act 212 § 148. Real and Personal compared ; as to Estates Tail 215 § 149. Real and Personal compared; as to Contingent Remainders 217 § 123. § 124. § 124a, § 125. § 126. § 126a. § 127. § 128. § 128a. § 129. § 130. § 131. § 132. XIV TAlil.K OF CONTKNTS. PAGE § 150. Roal and Personal comparted; as to Reversionary Interests 218 § 151. Real and Personal compared; as to Conditional Devise or Beque.st 21!) § 152. Equity aids Parties in Expectancy; Security from Life Bene- ficiary, etc 220 § 153. Deatli of Life Beneficiary; Presumptions 221 CHAPTER VIII. JOINT AND COMMON OWNEUIS. § 154. Number and Connection of Owner.s of Personal Property 222 § 155. Owners in Severalty ; Joint and Common Owners 222 § 156. Joint Ownership of Personal Property; its Nature and Creation. 223 § 157. Joint Ownership under a Will 227 § 158. Joint Executors, Trustees, etc 228 § 159. Joint Ownership ; how construed, etc 229 § 160. Severance of Joint Ownership 229 § 161. Owner-ship in Common ; its Nature and Creation 230 § 162. The Same Subject; Special Exceptions 233 § 163. Incidents of Joint and Common Ownership; as to Third Persons. 233 § 164. Remedies of Joint and Common Owners against Third Persons. . 23(> § 165. Rights and Remedies of Co-owners among themselves 23S § 166. The Same Subject; Contribution, Partition, etc 242 § 166o. The Same Subject ; Partition in Equity 245 § 167. Disadvantages of Joint or Common Ownership 246 § 167o. Joint Adventures and Adventurers 247 CHAPTER IX. PARTNERS. § 168. The Partnership Relation, for the Ownership of Personal Property 248 § 169. Division of Subjects in the Present Chapter 249 § 170. Nature, Creation, and Purposes of Partnership 249 § 171. The Same Subject; Competency of Parties to become Partners. . . 252 § 172. The Same Subject; Purposes and Scope of Partnership 254 § 173. The Same Subject; Essentials of a Partnership as to the Parties; Community of Profits, etc 256 § 173a. Community in Profits and Losses; latest ca.ses 258 § 174. Conclusion as to Nature and Creation of Partnership 259 § 175. Creation of Partnership as to the Public; Partnership Liability, how incurred 260 § 176. Partnership as to the Public; Ostensible, Nominal, Silent, Secret, etc.. Partners 261 §§ 177, 178. Secret Partnership; Liability of Actual Partner to the Public 262, 26.-. §§ 179, 180. Ostensible Partnership; Nominal Partner's Liability. .267, 270 TABLE OF CONTENTS. XV PAGE § 181. Modem Legislation affecting Partnership Liability to the Public. 27(t § 182. Liability of Partners to Third Parties affected by Notice of Stipulations, etc 271 § 183. Articles of Copartnership 272 § 184. Time when a Partnership begins 273 § 185. Rights and Duties of Partners; Rights in Partnersliip Property. 273 § 186. The Same Subject; Rights in Real Estate 27t» § 187. Right of Partner to bind the Firm as to the Public 277 §§ 188, 189. The Same Subject; Instances considered 27!t, 283 § 190. Liability of Firm for Fraud, etc., of Partner 2S.'» § 191. Riglits and Duties of Partners as between themselves 2S.') § 192. Dissolution and Change of a Partner.ship ; how elfected 288 § 193. Consecjuenccs of Dis.-.olution as to the Parties and the Public. . . . 289 § 193tt. Disfribution of Firm and Individual Assets in Bankruptcy 293 § 194. Di-ssolution by Death : Surviving Partner, etc 294 § 195. General Conclusions as to tlie Ownership of Personal Property as Partners 29(1 CILAPTEU X. MEMBERS OF UMJTED I'.VRTNERSlllPS, AM) OF JOTNTSTOCK COMPANIES, AND SIUP-OWiNERS. §§ 196, 197. Limited Partnerships; their Origin and Nature 298, 299 § 198. Limited Partnership; Prelimijiaries; Certilicates. etc 301 § 199. Limited Partnership : Business, how conducted 303 § 200. Limited Partncrshij) : Dissolution and its Consequences 304 §§ 201, 202. Joint-Stock Companies; Nature and Origin; English Statutes 305, 30 Same Subject: Time as an Essential; Demurrage 482 ■iAULK OF COXTENTS. XIX PAGE § 326. Charter-Parties, liow modified ; how construed 484 § 327. Marine Torts and I'erils 485 § 328. The Same Subject ; Colli.-^iori 485 § 328a. Limitation of Liability 487 §§ 329, 330. The Same Subject: Salvage 489, 492 §§ 331, 332. Average in Maritime Losses 494, 496 § 333. Captures, Privateering, Piracy, etc 498 § 334. Jurisdiction of Courts of Admiralty 500 CPL\PTER TI. MONKY. Money defined : its Nature and Uses 502 The Same Subject ; Coinage of Money 503 Copper, etc.. Coins, and their Uses 504 Advantages of (lold and Silver for Purpose.s of Money 504 Moncj- as a Standard of Value; its Circulation limited 505 Money with Reference to Sale, Barter, etc 506 " Lawful Money," as contrasted with Bullion, etc.; Legal Tender. 506 Distinction between Corporeal and Incorporeal Personalty with Respect to Sloney 507 Coinage by Covernment ; l^nglish Monej' 508 The Same Subject ; American Money 509 " Legal Tender " Notes, whetlicr American Money 511 Effect of " Confederate " Currency 515 Specie and Currency distinguished 516 Counterfeiting, Forgery, and Kindred Crimes 517 Bills of Credit ; Prohibition upon States 518 National Banks and their Currency 519 Bank Notes, etc. ; How far a Legal Tender 523 '■ Money," *' Cash," etc., in Testamentary Trusts, and Colloi]uial Use 524 CH.XPTKU iir. DEIiTS IN GKNER.VI,. § 353. Cliattels to be hereafter coii.-idered ar(> Incorporeal 526 i? 354. Simple Chattel Incorporeal ; Debt defined, etc 526 ^ 355. "Obligation" distinguislied from Debt: a Word of Larger Scope. 527 § 356. Classification of Debts : Priority 528 §§ 357, 358. Debts of Record, etc .IJ!). 532 § 359. Same Subject ; Priority of Debts of Record 532 §§ 360, 361. Specialty Dehts; Covenants, Bonds, etc 53:J. 534 § 362. Simple-Contract Debts 537 § 363. Priority of Debts depends sometimes upon the Parties concerned 537 § 364. Rule as to Preferences among Creditors 538 § 335. § 336, s 337. s .338. § 339. § 340. § 341. § 342. s 343. § 344. § 345. § 346. § 347. § 348. § 349. § 350. § 351. ^ 352. XX TABLE OF CONTENTS. PAGE § 365. How a Debt is discharged 53!) § 366. Tlie Same Subject ; Effect of Paying Smaller Sum, etc .541 § 367. Effect of Debtor's Note or Cheek by Way of Discharge of Debt. . . .544 § 368. The Same Subject ; Effect of giving a Higher Security, etc 540 § 369. General Rule as to accepting Note or Obligation of Third Per- son, etc., in Payment 547 § 370. Effect of designating a Place of Payment 540 § 370a. Accord and Satisfaction ; Account Stated, etc .540 § 371. Application of a Partial Payment 550 § 371a. Conditional Payment in a Dispute 553 § 372. Composition or Extension Agreement 553 § 373. Demands and Claims 555 § 374. Rules of Set-Off; Recoupment, etc., in Modern Practice 555 CHAPTER IV. DEBTS SECURED BY LIEN. § 375. Various Securities for Debt enumerated .556 § 376. What is a Lien 556 § 377. Various Kinds of Liens stated 557 § 378. Common-Law Lien; Particular and General Lien 558 §§ 379, 380. Who may be entitled to a Particular Lien 558, 561 § 381. Whether a Particular Lien may exist, irrespective of Contract. . . 563 § 382. General Lien ; who may acquire 565 § 383. General Lien of Attorneys and Factors 566 § 384. General Lien by Express Agreement 569 § 385. Lien, how made and kept sure; Possession necessary 571 § 386. Waiver, Extinguishment, or Exclusion of Lien 573 § 387. Method of enforcing a Lien 575 § 388. Right of Owner of Goods to discharge Lien, etc 578 § 389. Equitable Liens considered 578 § 390. Statutory Liens ; Mechanic's Lien Laws, etc 580 §§ 391, 391o, 392. Maritime Liens considered 581, 582. 584 § 393. Broad Significance of " Lien " in Judicial Language 585 § 393a. Lien Statutes Constitutional 586 CHAPTER V. DEBTS SECURED BY PLEDGE; COLLATERAL SECURITY. § 394. What is a Pledge or Pawn ; Collateral Security 587 §§ 395, 396. What Things may be the Subject of Pledge 589, 591 § 397. The Debt or Engagement to be secured 592 § 398. Who may pledge or receive in Pledge 593 § 398«. Trading in Stocks on Margin 595 §§ 399, 400. Delivery in Pledge; Retention of Possession 596. 598 § 401. Duty of Pledgee as to taking Care of the Pledge, etc 601 TABX£ OF CONTENTS. X51 PAGE § 402. Whether Pledgee may use the Pledge 604 §§ 403, 404. Right of Pledgee to sue Third Parties, Assign, Transfer, etc 605, 607 § 405. Pledgor'.? Right to transfer his Own Interest, etc 608 § 406. True Owner's Rights where the Pledge was wrongful 608 § 407. Remedies of Pledgee on Default of Pledgor 609 § 408. Effect of Legislation and Special Contract 612 § 409. How Notes and Various Other Securities should be realized ; Col- lection, etc 613 § 410. Miscellaneous Points as to realizing the Security 615 § 411. Pledgee may sue the Pledgor instead of enforcing the Security. . . 617 § 411a. Pledgor's General Right to redeem 618 § 412. How the Contract of Pledge becomes extinguished; Extension, etc 618 § 413. Business of Pawnbrokers, etc 619 CHAPTEPw VI. DEBTS SECURED BY MORTGAGE; CHATTEL MORTGAGES. § 414. Debt on Mortgage Security to be considered; Mortgages in Gen- eral 620 As to what constitutes a Chattel Mortgage 621 The Same Subject ; Mortgage distinguished from Lien or Pledge . 622 The Same Subject; Mortgage distinguished from Sale, etc.; Essen- tial Test 623 Form of Chattel Mortgage ; Parol Mortgage, etc 626 Matters of Description in a Mortgage 627 What does a Chattel Mortgage give in iSecurity 629 Tlu> Same Subject ; Rule as to Future-Acquired Property 629 Wliat does a Chattel Mortgage secure 632 Mortgages made under a Qualified Title, etc 634 Mortgage should conform to Legislative Policy, etc 635 Rules of Delivery, Registry, etc. ; Local Statutes require Registry. 636 The Same Subject; Effect of Unrecorded Mortgage 639 Delivery and Possession, etc., without Registry, etc 642 Want of Delivery as a Badge of Fraud 644 Priority among Chattel Mortgages 64(! Rights, etc., of Mortgagor and Mortgagee; Right of Possession. . 646 Sale, Transfer, etc., by Mortgagor; Mortgagor's Interest 649 Mortgagee's Rights and Liabilities 651 Mortgagee's Assignment of the Mortgage 652 Foreclosure and Redemption of Chattel Mortgages; Mortgagee's Common-Law Rights on Default 653 Modern Rule favors ^lortgagor more liberally; Equitable Doc- trine as to Default 6.V) Mortgagee may foreclose in Equity 656 § 415. § 416. § 417. § 418. § 419. § 420. § 421. § 422. § 423. § 424. § 425. § 426. § 427. § 428. § 429. § 430. § 431. § 432. § 433. § 434. § 435. § 436. XXU TABLE OF COXTKiNTS. PAGE g 4;57. Modern Statutes reflating Forecloaure and lltdemption: Special Agreements of Parties, etc 6rjt) § 438. Mortgagee may pursue Personal Remedies against Mortgagor on Default 658 § 439. Mortgagor's Equity of Redemption 659 § 440. Payment, Satisfaction, etc., of Mortgage Debt 660 § 441. Mortgage of a Ship or Vessel 661 g 442. Hypothecation of a Ship; Bottomry and Respondentia Bonds. . . . 661 CHAPTER VII. BILLS AND XOTKS. § 443. History of Bills and Notes 663 § 443o. The Negotiable Instruments Law 664 § 444. Bills of Exchange and Promissory Notes defined 665 §§ 445, 446. Leading Essentials of Bilk and Notes 666. 668 § 447. Principal Parties, etc., compared in Bills and Notes 671 §§ 448, 449. Acceptance of a Bill of Exchange 671, 673 § 450. Riglits and Duties of the Holder of Negotiable Paper on its Maturity 675 § 451. Presentment and Demand; how and where made 675 § 452. Presentment and Demand, when made; Days of Grace, etc 679 §§ 453, 454. Proceeding.? on Dishonor of the Bill or Note: Notice to Secondary Parties, etc 681, 683 § 455. Strict Presentment and Notice, when excused 685 §§ 456, 457. Negotiability; Transfer by Indorsement 688, 691 § 458. Effect of Transfer by Mere Delivery; Title of Bona Fide Holder for Value 692 § 459. Rules applicable to Accommodation Paper 695 § 460. Discharge of Drawer or Indorser from Liability 697 § 461. Failure of Consideration as between Original Parties 698 § 462. Questions relative to Forged or Altered Paper 699 CHAPTER VIII. MISCELLANEOrS NEGOTIABLE AND QUASI-NEGOTIABLE INSTKUMENTS. § 463. Miscellaneous Instruments More or Less Negotiable 702 § 464. Checks and their Characteristics 702 §§ 465, 466. Checks distinguished from Bill.^ of Exchange. Drafts, etc 703. 705 § 467. Eflfect of certifying a Check 708 § 468. Payment of Checks ; Duties of Banker, etc 711 § 469. Points of Resemblance between Check and Bill of Exchange: Effect of Indorsement, etc 712 § 470. Effect of paying a Forged or Altered Check 713 § 470o. Memorandum Cheeks 714 TAB1.K t)l' CONTENTS. XXlll PAGE § 471. Bills of Lading; liow fur Negotiable 7iri § 472. Warehouse Receipts ; wlu-ther Negotiable 719 § 473. Letter.s of Credit. Circular Notes, Certificates of Deposit, etc. . . . 719 §§ 474, 475. Coupon Bonds and their Negotiable Qualities; fCuglish Rule 721, 72;i §§ 476, 477. Coupon Bonds and their Negotiable Qualities: American Rule 724. 72r» ?! 477a. Negotiable Bonds in general 727 § 478. Government Loan.s; Notes, Bonds, etc 730 § 479. Registered Bonds distinguislied from Coupon Bonds 732 CHAPTER IX. SHARES OF STOCK. § 480. Shares in Joint-Stock or Business Corporations; Division of Present Chapter; Capital is largely invested in Business Cor- porations 734 S 481. Nature of Stock considered; Capital Stock 735 § 482. The Same Subject: .Sliares are Incorporeal Personal Property. .. '736 S 4S;J. Dividends ujion Stock ; their Nature 738 ii 484. Stock, as distinguislied from the Corporate Property 739 <» 485. Over-issue of Stock; Partially paid-in Capital, etc 740 <> 486. Right of a Corporation to deal in its Own Stock 741 § 487. Risks of Investment in Stock ; whether Trust Funds may be thus invested 742 § 488. Metliods by wliich One becomes a Stockholder; Subscription and Tran.sfer 744 §§ 489-491. Subscription for Shares 745. 746, 748 § 492. Promoters : Preliminary Subscribers, etc 749 § 493. Subscribers to New Stock; New Shareholders, etc 750 § 494. The Contract of Membership, and Subscription in General 751 §S 495, 496. Transfer of Stock; General Mode considered 751. 753 §§ 497, 498. Informal Transfer of Stock; Equitable Rights of Buyer.753, 754 § 499. Whether a Stock Certificate may be deemed Negotiable 757 >^ 500. Transfer of Stock in Special Instances 758 § 501. Lien of Corporation on Stock for Unpaid Dues 760 § 502. Transfers made under a ForgiKl Power: Careless Transfers 761 S^ 503. 504. Contracts for Stock; Stock Si)eculations 762, 763 § 505. The Same Subject ; Sale.s through Brokers 764 § 506. False Representations by Directors inducing Sale of Stock 766 !^ 507. Transfer of Stock on Execution Sale, etc 766 5 508. Preference Shares or Preferred Stock; Scrip. "' Rights." etc 767 § 509. Riglits of a Stockliolder : Membership. Voting, etc 768 § 509rt. Voting Trusts 770 § 510. Stockholder's Right to Dividends 771 S 511. Lial>?Tities of a Stoekiioldi-r ; how far liable for Corporate Debts. 774 XXIV TABLE OF CONTJEiS'TS. PAGE § 512. The Same Subject; Rule of Equity 776 §§ 513, 514. The Same Subject; Modern Legislative Policy 777, 779 § 515. Liability of Stockholders for Torts of a Corporation 780 §§ 516, 517. Liability of Stockholders for Calls, Assessments, etc.. 780, 782 § 517a.. Rights of Stockholders on Dissolution 783 CHAPTER X. PATENTS AND COPYBIGHTS. § 518. General Policy of Patent and Copyright Laws 784 § 519. Patents first to be considered; Subjects patentable 785 § 520. Novelty and Utility essential to the Invention or Discovery 786 § 521. No Public Use for Two Years prior to the Claim 790 § 522. Patent of a Foreign Invention 791 § 523. Abandonment or Public Dedication of One's Invention 791 § 524. Priority among Conflicting Claimants of a Patent 793 § 525. Proceedings for procuring a Patent 793 § 526. The Same Subject ; Specifications 794 § 527. Patents; how issued ; their Tenor 797 §528. Legal Title to Letters-Patent ; Heirs, Assignees, and Licensees. . . 797 § 529. Caveat, Surrender, Reissue, and Disclaimer 800 § 530. Rule as to Extension of Patents 802 § 531. Appellate Proceedings for obtaining a Patent 803 §§ 532, 533. Infringement of Patents; Remedies, etc 804, 806 § 534. Miscellaneous Points as to Patent Suits 807 § 534a. The Effect of the Anti-Trust Laws on Commerce in Patented Articles 808 § 5346. Controlling Price of Patented Articles 809 § 535. Copyright : Statute Protection, etc 809 § 536. The Same Subject ; Legal Principles 810 § 537. Length of Copyright Term 813 § 538. How Copyright is procured 814 § 539. Assignment of Copyright 814 § 540. Infringement of Copyright ; Remedies, etc 815 § 541. English and Foreign Patent and Copyright Laws 816 § 541, note. International Copyright 816 CHAPTER XL ANNUITIES, PEKSIONS. AND INSUKANCE POLICIES. §§ 542, 543. Annuities; their Nature and Incidents 818, 819 § 543a. Pensions. Salaries. Wages, etc 820 § 544. Life Insurance ; Modern Development as a Business 822 § 545. Contract of Life Insurance; Various Forms of Policy 823 § 546. Insurable Interest in a Life 824 § 547. Assignment of Life Insurance Policies 826 TABLE OF CO:XTENTS. XXV PAGE §§ 548, 549. Contract of Life Insurance; Preliminary Questions; Medi- cal Examination 829, 831 § 550. Conditions Subsequent vitiating the Policy 833 § 551. The Same Subject ; Manner of Death 835 § 552. When the Insurance Risk commences 837 § 553. Forfeiture through Non-Payment of Premiums 838 § 554. Re-Insurance, Double Insurance, etc 840 § 555. Time and Mode of obtaining Payment 841 § 556. Insurance against Accidents 843 §§ 557, 558. Insurance on Property- ; Fire and Marine Insurance . . . 846, 847 § 559. Miscellaneous Kinds of Insurance ; Guarantee, etc. ; Final Ob- servations 849 S 559a. Insurance Regulation under Local Statutes 850 § 5596. Liability Insurance 851 CHAPTER XII. LEGACIES AND DISTRIBUTIVE SHAKES. § 560. Legacies and Distributive Shares in General 853 § 561 . Legacy defined 853 § 562. General and Specific Legacies; Demonstrative Legacies 854 § 563. Residuary Bequest or Legacy 855 § 564. Distributive Shares considered 856 § 565. The Same Subject; Method of Distribution 857 Table op Cases cited xxvii Index 859 TABLE OF CASES (refekexces are to sections) A. SECTION SECTION Abbctt r. Frederick 401 Aetna Nat. Bank v. Fourtli Nat. Abb«»v Re 264 Bank 466 AbboUford, The 328 Agawam Co. r. Jordan 523, , 530. 534 Abbott r. jNIerriam 226 Agnew V. John-son 165 V. Wilmot 253 V. McElhare 287 Abby r. Billups 233 A. Co. 553 Agricultural Bank v. Burr 488. 497 Abeiidroth r. Van Dolsen 197 Ahrend v. Odiorne 361 Able V. Shields 77 Akerblom v. Price 329 Abraham r. Carter 165 Albert r. Savin. Morgan 477 Belknap V. Wendell 418, 424 Bell v. Banks 368 V. Day 271 V. Morrison 189. 193 V. Nesmith 146 V. Pitman 370a V, Sav. Union 259 Belden Co. v. Corn Planter Co. 520 Belford V. Scribner 540 Belknap V. National Bank 462 Bellamy V. Marjoribanks 466 Bellevue Mills v. Baltimore Trust Co. 254 Bellows V. Hallowell Bank 246 t\ Wells 395 Bellows Falls Co. v. Common- wealth 482 Bellnme V. Wallace 431 Belmont Branch Bank v^ Hoge 272 Benedict v. Dakin 299a V. Howard 165 t\ Thompson 188 Benedum v. Bank 473 Benefactor, The 328 Bengough v. Eldridge 146 Benjamin v. Stremple 165, 403 Bennecke v. Conn. Life Ins. Co. 550 Benner Line v. Pendleton 326 Bennet v. Bullock 166 V. Fowler 527 Bennett Vi Atherton 30 V. Bennett 138 V. Davis 139 V. Federal Coal Co. 254 V. Treniont Co. 452, 457 Bennett's Case 193 Benoir v. Paquin 409 Benson V. Benson 361 i\ Thompson 212 Bentley v. Brossard 173« V. Whittemore 299 Benton V. Chamberlin 193 Benz Re 35 Beran v. Tradesmen's Bank 78 Berkshire Bank rj Jones 455 Berkshire Woollen Co. V. Proctor 379 Berliner v. Waterloo 477 Berni v. Bover 41 Bernitt v. Powers Co. 167a Berry v. Chase 82 V. Colburn 167a SECTION Berry v. Gibbons 397 Berthold v. Goldsmith 178 Bertrand v. Taylor 165 Bethulia, The 313 Bettis V. Tampa A&s'n 285 Betty i\ Moore 139 Beularig, The 329 Bevans i\ Bolton 425 r. Briscoe 106 Bevin r. Conn. Mut. Life Ins. Co. 550 Bewick v. Fletcher 123 V. W^hitfield 53 Bickford r. First Nat. Bank 467 Bier V. McGehee 478 Big Bend Land Co. r. Hutchings 82 Bigelow r. Berkshire Life Ins. Co. 551 V. Cong. Society 512 V. Elliot 178 V. Heaton 385,386 V. State Assurance Ass'n 553 Bigler V. Waller 345 Bill r. Cureton 139 Billing V. Devaux 465 Billingsley v. Dean 271 Bine V. Kennedy 173a Bing V. Schmit't 170 Bingham v. Rushing 507 Birckhead v. Brown 473 Bird V. Bird 161 v. Cromwell 313 V. Davis 435 Bird of Paradise, The 385 Birmingham R. R. Co. V. White 489 Birnel v. Boyd Co. 165 Birtwhistle 'v. Vardill 295, 296 BischofF V. W^ethered 534 Bishop V. Bishop 116,204 V. Brainerd 245 V. Elliott 122 r., Halconib 78 V. Welsh 367 Bissel V. Price 379 Bissell V. Heyward 346 V. Foss 204 V. Pearce 431 Bither v. Bnswell 425 Bittinger r. Baker 109 Bivens V. Hull 481 Bjornson v. Rostad 100 Black V. Bogert 400 r. Delaware Canal Co. 240 Vi Ward 445 V. Zacharie 77,298,497,498 Matter of 82 Blackburn r. Ormsby 366 Blaekman v. Pierce 385 TABLE OF CASES. XXXI 11 SECTION Blackstone v. Allemania F. Ins. Co. 554 V. Miller 69 Blackston Bank r. Hill 371,410 Blaekwell, The 329 Blackwell v. Harrelson 82 Blackwood v. Brown 397 Blades v. Higgs 48,49 Blaine v. The Carter 442 Blair v. Forehand 50 Blake r. Corbett 417 V. Nicholson 380, 385 r. Third Nat. Bank 191 V. Williamsi 296 Blakely Ice Co. v. Clarke 82 Blakemore v. Blakemore 166a i\ Taber 436 Blanchard v. Putnam 534 r. Spraguo 519, 526 Blanchard's Factory v. Warner 231 Blancke r. Rogers 124 Bledsoe v. Nixon 263 Blethen r. Towle 113, 116 Blight r. Blight 542 Blin r. Pierce 72, 77, 81 Bliss V. American Bible Society 235 V. Ropes " 312 V. Schwarts 366 Block v. State 287 Blodgett V. Gardiner 258 Blohm V. Hannan 267 Bloomer v. McQuewan 528, 530 V. Mill.inger 528,530 Blossom r. Dodd 471 Blue V. Gunn 115 Blue Jacket, The 328 Blue Jacket v. Tacoma Mill Co. 328 Blundcll V. Winsor 202 Blunt r. Walker 232, 233 Blymire r. Boistlo 75 Boardman v. Lake Shore R. 510 V. Lorentzen 502 Board of Education v. State Board 82 Boatmen's Bank v. Fritzlen 425 Bobe r. Stickney 371 Bodenhammer v. Newsom 400 Bodley V. Goodrich 237 Boeseh v. Graff 77 Boffinger v. Tuyea 366 Boggs I'. Martin 386 Bogle V. Gassert 477 Bohl V. Linn 435 Bohr V. Anderson 366 Boldt Co. V. Nivision Weiskoff Co. 520 Bolton i\ Senis 367 Bornbolaski r. Bank 446 Bond V. Pittard 173 V. Taylor 167a SECTION Bond V. Worley 281 Bondurant r. Commercial Bank 266 Bondy v. Hardina 371 Bonewell v. No. Am. Ine. Co. 548 Boobier v. Boobier 163 Books i\ Williams 186 Boon r. Moss 62 Booraem v. Wood 124a Boot t\ Franklin 451 Booth V. Campbell 369 V. Kennard 420 V. Oliver 122 Boqua v. Marshall 167a Borden v. Boardman 77 Born V. Bank of Chicago 467 V. First Nat. Bank 467 Boston Ice Co. v. B. & M. R. 559a P. Potter 76 Boston Safe Deposit Co. v. Adams 143 Boston Steel Co. v. Steyer 458 Boston Trust Co. v. Adams 508 Boswell V. Savings Bank 465 Botsford V. Van Riper 167a Bouch i\ Sproule 143 Boughton r. James 146 Boulton, Ex parte 399,498 V. Bull 519 Bourne v. Freeth 180 V. Goodyear 530 Bouton V. Am. M. L. Ins. Co. 553 Bovill V. Hammond 174 BoAV V. Ry. Ins. Co. 556 BoAvden i\ Johnson 514 Bowdoin v. Hammond 272 Bowen i\ Argall 198 V. Peters 208,212,214 V. Preston 163 r. Stoddard 211 V. Warren 206 Bower r. Mar r is 371 Bowker V. Burdekin 188 V. Childs 366 V. Harris 369 i\ Smith 186 Bowles r. Eddy 288 Bowl in r. Furman 16 Bowling V. Harrison 453 Bowman v. Blanton Co. 173a r. Miller 2SS V. Neely 256,269 V. Wood 407 Bow^'er v. Anderson 172 Boyce r. Brady 173 r. Edwards 448 Boyd V. Emmerson 468 i\ Lockport 77 V. Moses 326 XXX IV TABU-; OF CASES. Boyd V. N. Y. & H. Tl. V. Shorrock Boyer v. Nesbitt Boyle r. Levings Boyleiii V. Leonard Boylstoii Ins. Co. v. Davis Boynton v. Payrow Braekett v. Bullard Bradbury V. Smith Bradford v. Bennett Bradford Banking Co. r. Cure Bradley v. Bailey 1'. Chamberlin V. Duniface V. Holdswortli V. McDonald r. Mut. Ben. Life Ins. Co. V. Redmond Bradley Re Bradt v. Benedict Brady v. Ins. Co. V. State 78 Bragg V. Geddes 192 Brainerd i\ Champlain Trans. Co. 253 Braithwaite v. Gardiner 457 V. Skinner 63 Branch v. Jesuip 232 V. Morrison 130 Brandao v. Barnett 382, 478 Brander r. Brander 143 V. Phillips 383 Brandon Iron Co. v. Gleason 242 Brandt v. Bowlby 321 Brannon v. Vaughan 123 Branson v. Heckler 406 Branton v. Griffits 103, 106 Bratton r. Clawson 113 Bray r. Bates 368 Braynard v. Hoppock 274 Breard v. New York Ins. Co. 547 Breasted v. Farmers^ Loan & Trust Co. 551 Brenham r. German American Bank 477 Brent v. Bank of Washington 363 Brent v. Bank of Washington 501 V. Kimball 50 Brestle v. Mehaffie 277 Brewer v. Brown 82 V. Knapp 371 Brewing Co. v. Gehl 02 Brewster r. Hartley 416.417,509 V. McCardel ' 458 Brewster r. Wakefield 255 Brick r. Freehold Co. 397 Bridge r. Kedon 82 SECTIOiV SECTIOKT 482, 486 Bridgeport Bank v. New York 122 &c. R. R. Co. 496 500a Bridgeport Co. ?;. Osborne 486 165 Bridges v. First National Bank 509a 79 Brig Nestor, The 391 161,163 Briggs V. Boston, &c. R. R. Co. 379 409 V. Boston R. 381 430 V. Boynton 167a 198 V. Chase 27 0,38 156 V. Dorr 77 194 1). McCullough 545 10'5, 106 V. Oliver 436 183 i\ Sholes 267 321 V. Steel 271 482 Brigham v. LaUy 369 254 V. Mead 499 0. 551 V. Myers 271 434 V. Potter 424 42a V. Weaver 425 242 Bright i\ Jam. Butchers' Bank 456 r. Cambridge .366 r. Coombs 383 V. Duchesne 530 i\ Dunckel 368 V. First Nat. Bank 254 V. Graham 163 V. Iron Co. 242 V. Jones 275 V. Kiefer 422 V. Leckie 467 V. Mcintosh 280 V. Linn Co. 33 V. London 474 V. Lull 315 V. McCrau 387 V. McHugh 445 V. Nevitt 266, 274 ,286 V. Phelps 505 V. Phillips 434 V. Railway Passenger Ass. Co. 556 V. Simimons 259 V. Smith 311 V. Southern Ry. Co. 82 V. SpoflFord 372 V. Swann 282 V. Tanner 79 V. Tarkington 458 V. Vandyke 266 ,269 V. Wall is 121 V. Ward 409 V. Warren 399 V. Webb 426 ,428 V. Wellington 161 Browne r. Savage 150 I'. Sharkey Co. 254 Brownell r. Hawkins 403 Browning r. Grady 365 t\ Parker 82 Bruce r. Osgood 166 Brufett r. Great Western R 242 Bruff r. Mali 485 Bruley r. Rose 400 BrunsAvick Co. v. LTnivcrsity Co. 289 Bryan v. Aiken 143 ,481 V. Child 357 V. Collins 147 V. Fox 366 V. Robert 436 V. Spruill 560 V. Thompson 167a V. Twigg 161 Bryant v. Auchmiuty ' V. Clifford r. Craig V. Pal lard Bryce r. Brooks Brydges r. Branfill Brync r. Dorey Buchanan i\ Currey V. Taylor Buck v. Buck V. Ingersoll f<. Pike Buck Co. r. Tietge Buckingiiam v. McLrfsan Buckland r. Butterfield Buckley r. Buckley Buckman i'. Davi.s Buck master v. Ciruiidy t'. Needham Buckout r. Swift Budd V. Heiler Budge r. Mott Buffalo R. r. Dudley Building and Engineering Co Bank Bulkeley v. Welch Bulkley r. Barber V. Devine r. Marks Bull V. Kasson Nat. Bank i\ Rice Bullard v. Raynor Bullenk r. Sharp Bullock r. Narrott Bulwer r. Bulwer Burck r. Taylor Burdict r. Murray Burditt r. Hunt Bureau of Literature v Bureau r. Sells Burgete V. Taliaferro Burk V. Baxter r. Ilollis Burke, Matter of t\ Lechmore r. McKay V. Smith V. Trabue Burkhalter r. Second Bank Burlington Loan Association Ilcider Burlington R. R. Co. Burmester v. Norris Burnett r. Snydor Burnham r. Best Burns V. Anderson r. Bryan SECTION 42fe 163 260 440 383 190 82 188 78 422 411,438 32 254 270 121, 122 114 258 257 163 109 106 313 494 Sells r. 459 407 206 27 198 464 273 278 173,178 428 106 6,75,82 380 419 536 540 166 113 127 259 492 453 225 250 466 279 r. Boi>stler 490 225 173 259 255 156, 159 113 XXXVl TABLE OF CASES. SECTION Burns v. Meyer 531 V. Permeil 506 Burnes v. Fertilizer Co. 461 Burnside V. Turchell 124 v. Weightman 106 Burr V. Becker 446 i\ Commonwealth 254 V. Duryee 519, 529 Burrill v. Boardman 234 r. Nahant Bank 224 Burriss V. Starr 446 Burrough V. Moss 458 Burt i\ Evory 520 v. Haslett 122 Burtis V. Dodge 261 Burton v. Willin 78 Burton's Appeal 236,406 Burwell v. Mandeville 194 Busby V. Chenault 194 V. Finn 266.268,282 Busch-Everett Co. v. Oil Co. 24 Busch V. Nester 165 V. Tel. Mfg. Co. 82 Busfield V. Wheeler 385, 386 Bush V. Lathrop 81 V. Schooner Alonzo 315 Bush Co, V. Becker Bros. 526 Business Men's League v. Tragow 446 Buster V. Holland 371 V. Newkirk 49 Butchart v. Dresser 193 Butler V. Cornwall Iron Co. 225 V. Dubois 477 V. Miller 368 V. Murray 307 t\ Eoberson 559a V. Tot Co. 171 t\ Wildman 332 William S., Re 227 Butlers V. Olds 288 Butterworth v. McKinly 307 Button V. Hoffman 484 Butts V. Wood 225 Bvng V. Bvng 95 Byram v. Gordon 422,426 Byrne v. Grayson 271 V. Schiller 319 Cable V. McCune Cabot Bank i\ Warner Cadell V. Palmer Cadwallader v. Kroesen Cadwell r. Pray Cahill, E. F., The Cahoon v. Morgan Cain V. Gimon 354 453 146 187 431 213 78 278 SECTION Cain I'. Robertson 140 Cairo R. i\ Fackney 387 Cairo v. Jane 477 Caldwell v. Bridal 50 V. Lieber 172 V. Perry 76 V. Pierce 254 V. Van Vlissingen 519, 532 Calkins v. Lockwood 74 Call V. Gray 421,425,426 Callaghan v. Myers 536, 538 Callahan V. Goldman 426 Callahan Co. v. Michael 38 CallaAvay Co. v. Clark 231 Calye's Case 90 Camanche, The 320,330 Cambridge Water Works V. Som- erville Dyeing, &c. Co. 513 Camden r. Allen 354 Cameron v. Blackman 188, 189 V. 111. Steel Co. 82 Cameron Co. r. Knoxville 530 Campau r. Campau 161 Campbell r. Birch 433 V. Campbell 157 V. Int. Life Ass. Co. 553 V. Iron Co. 417 v. Kenosha 477 V. McHarg 267 V. N. E. Mut. Life Ins. Co. 546, 549 V. Prescott 16 V. Raven 491 Campbell's Gas Co. v. Hammer 167a Campbell Re 173a, 191 Canal Boat Dan Brown 391 Canal Co. v. Fulton Bank 245 r. Railroad Co. 240 Canale r. Pauly Co. 299a Candee v. Webster 258 Candor's Appeal 361 Canfield V. Mangor 77 Canfield Re 281 Canning i\ Owen 113 Cantey v. Blair 278 Cape Sable Company's Case 235, 236. 482 Capehart v. Foster 114,122 Caphart V. Dodd. 238 Capp V. Lacey 199 Caravia r. Levy 371o Card V. Hope 210 Cardinell i: O'Dowd 371 Carew r. Duckworth 468, 469 Carev r. Dennis 77 Cargo ex Capella 329 Carleton v. Leighton 420 TABLE OF CASES. XXXVH SECTION Carlin r. Ritler 122 Carlisle i\ Bindley 286 V. Norris 498,499 V. Quattlebaum 379 Carlton v. Bokee 526,529 Carmichael f. Arms 384 Carnegie V. ilorrison 473 Carney r. Mosher 106 Carpenter v. Black HaAvk Min- ing Co. 237 V. Carpenter 100 V. Cumniings 433 V. Marshall 208 V. Northfield Bank 345 V. Snelling 417,427 V. Walker 124 V. Welch 263 Carr v. Carr 61 V. Le Fevre 489 t\ National Security Bank 448 Carrington v. Roots 101 v. Ward 400 Carroll, The 328 Carsey r. Swan 457 Carson v. Alexander 253 V. Russell 448 Carter v. Burr is 417 V. Dennison 278 I'. Greenhow 346 v. John Hancock Life Ins. Co. 553 V. Whalley 193 r. White 445, 448 V. Wilmerding 398 Cartwright r. Wilmerding 399 Carty v. Fenstemaker 439 Cary V. White 369 Carviel V. Mirror Films 77 Case V. Bank 382 V. Brown 519 V. Henderson 466 V. Jewett 425 V. Woleben 423 Case Co. r. Barney 434 V. Tonilin 288 Case Mfg. Co. r. Garven 124o Casey v. Carver 253 V. Caveroe 400 V. March 383 Cashman r. Harrison 77 Casler v. Conn. Mat. Life Ins. Co. 550 Casner V. Hoskins 286 Casper V. Mfg. Co. 220a Castle V. Bui lard 190 Castling v. Aubert 382 Casualty Co. v. Beattie 254 Caswell V. Keith 417 SECTION Catawissa R. R. Co. r. Titus 164 Cate V. Merrill 255,434 Cattlemen's Co. r. Turner 482 Catoir v. American Life Ins. & Trust Co. 553 Cator V. Burke 81 Caunt r. Thompson 453, 455 Causey v. Yeate-s 398 CauSler v. Wharton 186 Cave L\ Cave 119 Cayuga County Bank r. Hunt 452 Caze V. Baltimore Ins. Co. 319, 320 Cazenove v. British Ins. Co. 549 Ceas r. Bramley " 418 Cecil Bank V. Watsontown 501 Cedar Falls v. Wallace 455 Celesti State Bank r. Puekett 387 Celt, The 328 Central Am. Co. V. Pacific Mail Co. 326 Central Bank r. Hume 546 r. St. John 272 Central Branch R. V. Fritz 113, 124 Central Business Co. V. Ruther- ford 42a Central Co. v. Stuber 82 Central PI. R. Co. r. Clemens 490 Central R. r. Brunswick R. 75 Central Trans. Co. r. Pullman Co. 237.245 Central Trust Co. v. Lueders 393a Central Trust Co. Re 390 Ce.scinsky r. Routledge 533 ChadSev r. Lewis 77 Chadwi'ck v. Covell 64 Chaffee r. Atlas Co. 422,437 V. Boston Belting Co. 528 Chaffee County r. Potter 477 Chaflin V. Cummings 279 Ciiaffraix v. Harper 383 Challoner r. Davies 38 Chalmers r. Turnipseed 368 Chamberlain r. Des Moines 254 V. Masterson 379 V. Merritt 177 Chambers v. Goldwsni 81 r. Howell ' 194 r. Keene 81 Chambersburg Ins. Co. r. Smith 394, 498 Chamblis.s v. Robertson 256 Champion r. Bostwick 178, 185 r. Gordon 466 Chandler v. Hart 23,27a i\ Spragne 321 V. Tluirston 106 Chandless t'. Price 148 XXXV HI TABLE OF CASES. SECTION Ohannon r. Lusk 165 Chapin v. Blue School 371a I'. Cram 425 V. Fell owes 547 Chapman r. Black 462 V. Brooks 79 V. Brown 146 V. Chapman 547 V. Clough 438 i\ Durant 212 V. Haley 81 V. Hunt 431,434 l\ Robertson 297 V. Tanner 389 i\ Weimer 421 V. White 466 Chappel r. Brockway 32 Chappell r. Cliappeli 173a V. Fields 536,541 V. State 50 Chappell's Case 245 Charles r. Marsden 459 Charlotte, The 330 Charman r. Henshaw 179 Charter v. Stevens 434 Chase r. Breed 77 V. Dow 288 r. Ingalls 423 V. Nat. Trust Co. 279, 286 'V. Phoenix Ins. Co. 553 v. W&stmore 384 Chase Co. v. Nat. Trust Co. 285 Chasemore v. Richards 53 Chase Nat. Bank r. Faurot 269 Chasteauneuf r. Caperyon 305 Chauncy v. Arnold 27 Chautauqua School v. National School 536, 540 Chemical Nat. Bank r. Arm- strong 401 Cheney r. Campbell 279 v. Libby 260 Cherry v. Frost 400. 400, 499 Chesley t: Welch 106 Chester v. Dickinson 172 V. Dorr 459 V. Jumel 81 Chester Co. v. Securities Co. 477fl Chew's Appeal 148 Chicago r. Gage 361 Chicago Citv Bank r. Bremer 271 Chicago Co.' r. National Co. 498 Chicago R. v. Chicago Bank 517a V. James 227 V. Merchants' Bank 446 V. Third Nat. Bank 245 Chicago, &c. R R. Co. v. Ames 257 SECTION Chicago Terminal v. Barrett 38 Chicago Title Co. v. Kemblcr Co. 23 Chick V. Pillsbury 454 Chicopee Bank v. Philadelphia Bank 451 Child V. Baylie 138, 139 Chilton V. Carrington 388 Chipman' v. Farmer.s' Nat. Bank 275 Chippendale V. Bank 156, 161 Chippendale, Ex parte 239 Chouteau v. Alleiu 408 V. Boughton 75 Chouteaux v. Leech 313 Christ Church Hospital v. Fuechsel 345 Christhilf v. Bollman 42a Christie t'. Gosling 148 Christmas v. Russell 77 Chubb r. Upton 485 Church r. Brown 32 V. Wells 132 Church. &c. r. Grant 146 Churchill v. Cole 279 Chynoweth i\ Tenney 421 Cicero V. Clifford ' 477 Cincinnati i\ Morgan 390 Cincinnati Co. v. Rosnagle 344 Cincinnati R. R. Co. ?■. Clarkson 489 Cincinnati Traction Co. v. Pope 520 Cissna Loan Co. r. Gawley 271 Citizens' Bank r. Dowse 411 Citizens' Bank v. McKinley 425 Citizens' Ins. Co. v. Ligon 194 Citizens' Nat. Bank v. Mitchell 173a City r. Lamson 477 City Bank, Ex parte 474 V. Bruce 486 r. Hocke 27o City Fire Ins. Co. r. Olmsted 399, 498 City Hotel V. Dickinson 490 City of Memphis v. Bethel 275 Civilta, The, v. Restless, The 328 Claffin r. Boorum 275,279,283 ('. Carpenter 101 Claiborne r. Creditors 192 Clandy r. Royal League 559a Clara,' The " 328 Clark V. Banks 108 V. Barnes 24 V. Barnwell 320 V. Bowen 366 V. Boyd 77 V. City of Janesville 85 V. Clark 140 V. Continental Ins. Co. 493 t\ Farrington 489 V. Fell 386 V. Harvey 108 TABLE OF CASES. XXX IX SECTION Clark V. Hjraan 189 V. Iowa City 476 V. Janesville 476,477 V. La nam 82 V. Leach 183 V. Lowell, &C.R. 381 V. Sidway 172 i\ Sisson 279 v. Spencer 281 V. Wilson 441 V. Woollen, &c. Co. 229 Clark Co. r. Shelton 126a V. Willimantic Co. 521 Clarke v. Rowland 127 V. Lord Abingdon 361 V. Lord Onnonde 99 V. Russel 449 V. Seton 361 V. Thompson 77, 81 V. White 364, 372 Clarkshury v. Davis 491 Clarkson r. Stevens 307 Clay V. Field 194 Clayton Town-Site Co. v. Eh-iig Co. 452 Clearwater v. Meredith 232 Clemens v. Caldwell 260 Clementson v. Blessing 171 Cleveland v. Lodor 273 V. Martin 77 V. Richardson 372 Cleveland Nat. Bank r. Amos 371 Clifton f. Mutual Ins. Co. 553 Climio V. Wood 113,124 Clinchfield Co. v. Lundv 193 Cline v. Libby 430 Clodfetter v. Cox 78 Close V. Gravel Co. 82 V. Waterhouse 380 Clough r. French 360 Cluff r. Mut. Ben. Life Ins. Co. 551 Cobb V. BusAvell 297 V. Hartenslein 287 V. Howard 471 V. Illinois Central R. 189 V. Morgan 268 Cobe r. Cuyer 267, 271, 275 Co burn r. Page 166 Cochran r. Flint 110 r. Green 75 V. Retberg 325 Cochrane r. Advertising Agency 124o Cockaj'ne r. Harrison 140 Cockburn v. Kingsley 299fl Coddington r. Ideel 191 Codman v. Brooks 75 V. Freeman 421 SECTION Codrington v. Johnstone 109 Codwise v. Gelston 364 Coe V. Columbus R. 237, 426 Coifield Co. r. Howe Co. 520 (^offman v. Sammons 26 Coggs r. Bernard 395, 401, 402, 416 Cohen v. Life Ins. Co. 171 V. Todd 34 Cohn. V. Arkin 371a V. Lunn 446 Col. Bank v. Boettcher 466 Colburn v. Gould 369 Colcuitt V. Stultz 409 Cole V. Gushing 456 Colegrave v. Dios Santos 119, 123, 125 Colehour v. Savings Institution 269 Coleman r. Coleman 562 V. Columbia Oil Co. 486 V. Pearce 190 V. Stearns Mfg. C). 124 Coler V. Cleburne 477 Coles V. Clark 426, 430, 431 Colgate r. U. S. Leather Co. 245 Collenberg, The 313 Collier r. Barr 274 V. Imp. Films Co. 536 Collins V. Bradbury 446 Collins Co. r. Goes 529 CoUinson r. Wier 49 Colorado v. Giacominini 30 Colson v. Arnot 462, 477 Colt r. Ives 498 Columbia Land Co. v. Daly 199 Columbia Metal Co. v. Halper 520 Columbian Ins. Co. v. Ashbv 332 Colvard r. Waugh ' 417 Comanche Co. v. Lewis 477 Comins r. Newton 421 Commercial Bank r. Burch 78 V. Kortwright 497 V. N. O. Man. Co. 239 V. Pfeiffer 471 1-. State of Mississippi 243 Com. Mut. Ins. Co. v. Union Mut. Ins. Co. 552 Commonwealth v. Butler 543o r. Chace 50 V. Commercial Bank 243 v. Commissioners 477 V. Cullen 220 v. Essex Co. 242 V. Gill 223 V. Love 458 V. Smith 237 V. St. ]\Iarv's Church 224 V. Thornton 50 V. I'nion, Fire. &p. Co. 241 V. Vandegrift 228 xl TABLE OF CASES. SECTION CommonAvealth v. Worcester 228 Ck)mmonwealth Trust Co. V. Salem Co, 425, 436 Compania-Bilbania V. Spanish- American Co. 324, 326 Compania Mexicana v. Waite 38 Compton V. Collins 285 V. Jones 75 V. State 38? Comstock V. Buchanan 188 V. Comstock 395 Conard V. Atlantic Ins. Co. 416, 420, 428, 442 Conchnian t". Wright 418 Conderman v. Smim 421 Condon v. Pearce 457 Confidence, The 313 Congregational Society v. Flem- ing 132 V. Stark 132 Congress Spring Co. v. Edgar 50 Conkling V. Shelley 419, 424 Conn. Life Insurance Co. i\ Dins- comb 244 Connally v. Spragins 419 Oonneaut Lake Co. v. Quigley 42a Connecticut, The 328 Connecticut V. Johnson 264 Connecticut Life Ins. Co. v. Akens 551 V. Schaefer 546 Connecticut Mut. Life Ins. Co. V. Burroughs 547 V. Luchs 546 Connecticut, &c. R. R. Co. v. Bailey 490 Conner v. Carpenter 430 Connor v. Donnell 269 V. Myers 285 c. Squiers 113, 123 Conners r. Sullivan 459 Connors V. Old Forge Banlc 470 Conover v. Earl 156, 163 Conrad v. Saginaw Co. 121 Consolidated Tank Co. v. Collier 62 Constant v. Klompus 391a Continental Co. v. Madden 424 Continental Gin Co. v. Arnold 370a Continental Nat. Bank v. Flem- ing 271, 275 Conway v. Cutting 77 Cook V. Barnes 286 V. Bell 81 V. Black 389 V. Com. Ins. Co. 311 V. Cook 133 V. Curtis 316 V. Fowler 255 V. Guerra 34 SECTIOX Cook V. Jennings 320 V. Lillo 34ii V. Lister :?7i V. Satterlee 445, 446 V. Warren 453 V. W^hiting 113 Cookendorfer v. Preston 452 Cool r. Stone 360 Coolidge V. Payson 448 Coon V. Swan 267, 284 Coope V. Eyre 172, 196 Cooper V. Bailey 164 V. Brock 417 V. Ciutis 237, 238, 243, 244 V. Eastern Co. 328 V. Frederick 512 V. James 536 V. Johnson 121, 122 V. Kennedy 100 V, Mass. Mut. Life Ins. Co. 551 V. Parker 366 V. Ray 400 V. Vallev Co. 482 V. Willomatt 406 V. Woolfitt 106 Cooney f. English 52 Coons V. McKees Borough 82 Cope V. Cordova 320 V. Dry Dock -Co. 329 Copeland V. Fairview 53 V. Stein 383 i\ Stephens 35 Coppin f. Greenlees 232 Corbett v. Clark 446 V. Lewis 165 V. Underwood 398, 409 Corbin V. Eagle Co. 529 Corcoran V. Powers 275, 286 V. Webster 117 Cordova Shop Re 217 Cork R. R. Co. v. Paterson 490 Corlies f. Estes 271 Cornell V. W^oolley 561 Corn ell- Andrews Co. f. Boston & P. R. 126a Cornins" V. Burden 519 • r. McCuUough 489. 513 Corsica, The 32S Corven's Case 96 Corwin Town v. Moorhead 113 Costello V. Crowell 446 Cot a r. Buck 446 Cotton, Ex parte 126 i: Beattv 231 Coty V. Barnes 416, 417. 427 Coulter r. Robertson 267 Countess of Durham. The 328 County of Bates v. W'inters 477 TABLE OF CASES. xli SECTION County of Clay v. Savings 477 County of Henry V. Nicolay 477 County of Rollo V. Douglas 477 Coursin's Appeal 161, 163, 166 Court v. Myers 426 Covell V. Loud 409 Covert V. Rhodes 77 Cowart V. Co wart 113 V. Singletary 82 Cowdin V. Huff 543a V. Perry 157 Cowell V. Simpson 386 Cower r. Tatum 456 Cewgiel v. Jones 255 Cowing r. Altman 469 Cowles v. McVickar 269 CoW'ling V. Cowling 563 Oowper V. Green 386 Cox V. Hickman 173, 176, 178 V. National Bank 455 r. Title Guarantee Co. 39 Coyne v. Caples 209 Craddock v. Riddlesburger 103 Craft f. Russell 422 Craig V. Craig 542 V. Dimock 425 V. Leslie 133 V. Missouri 70, 349 V. Parkis 79 f. Pleiss 266 v. Sibbett 458 V. Stewart 452 V. Warner 191 Craig Co. Re 126a Ci-ain V. Paine 77, 440 Cramer v. Bachmann 191 i: Lepper 263, 279 Cramp v. Playfoot 146 Crandall Investment Co. r. Ulyatt 122 Crane v. Brigliam ll3, 124 V. Freese 54 r. Gough 77 Cranston V. West Coast Ins. Co. 367 a-aven v. Atlantic R. 2.39 Cravcr v. Mossbach 164 Crawford v. Bank of Wilmington 256 V. Brooke 80 V. Johnson 266 Crawford Brothers, The 329 Crawshay v. Collins 183f, 185, 192, 194 Craycraft V. National Loan Ass'n 244 Crease v. Babcock 244, 513 Creed v. Creed 562 f. Lancaster Bank 78 V. People 161 Cregler v. Durham 193 Crim V. Starkweather 455 Crippen i. Morrison 117 Criscoe r. Hambrick CVisfield f. Storr Crisniond r. Jones Crocker r. Carson SECTION 166a 149 546 156, 165 Crocker-Wheeler Co. v. Recrea- tion Co. 126a V. Whitney 75 Croly V. Weld 543 Cromelien r. Mauger 75 Crompton v. Prati 423 Cromwell v. Sac County 477 Crosby r. Baker 421 V. Mason 253 Crosier r. Crosier 446 Cross I-. Beard 325 V. Burlington Bank 170 V. Hcpner 271 V. Mann 267, 284 V. Page Co. 82 V. Weare Co. 124a i: Wilkins 379 Crossfield r. Such 156 Crotty V. Union Life Ins. Co. 546 Ci-oughton V. Forrest 182 Crow V. Oxford 477 Crowel r. Bark Radaraa 328 Crowell v. Jones 126o, 272 Crowfoot r. Gurney 77 Crownfield v. Phillips 191 Crowther r. Bell 482 Crozier r. Krupp 532 Cruess v. Fessler 185 Ci'uikshank r. Corny ns 254 Cruse I". Paine 505 Crutchly r. Mann 445 Cruttwell V. Lye 185 Ci-ystal Ice Co. r. Gas Co. 53 Cu'bbins r. Avres 122 Cuddy r. Horn 322 Cudworth r. Scott 432 Cullen r. Armstrong 100 Culliford r. Vinet 325 Culling V. Tuffnell 113 Cullwick V. Swindell 124 Cumber v. Wane 366, 372 Cummer c. Atlas Co. 533 Cummings V. Fullam 81 Cumniins V. W^ire 274 Cunningham V. Hall 3r09 /•. Irwin 371 Cupples V. Level 34 Curd r. Wnnder 430, 431 Curling r. Long 319 Curnui r. Smith 115 r. State of Arkansas 242, 244, 349 Currie r. Misa 307 Currier r. Barker 40 V. Howard 77 I xlii TABLE OF CASES. Currier v. Knapp V. Lockwood Curry v. Scott Curson v. Monteiro Curtis V. Butler V. Davidson V. Ins. Co. V. Leavitt V. New York Ins. Co. Curtiss r. Martin Cushier v. Adams Cushing v. Breed Cushman r. Haynes V. U. S. Ins. Co. Cutchen V. Coleman Cuthbert v. Dobbin V. Haley V. Wolfe Cuthbertson v. Bank Cutler V. Reynolds V. Thomas Cutting V. Damerel Cynthia, The D. Dable Co. V. Flint Dabney v. Cottrell Dagall V. Mann Daggett V. Pratt Daland i". Williams Dalby v. India, &e. Life Dale V. Hamilton f. Kimpton Dale Tire Co. V. Hyatt Daley v. Minn Loan Co. Dalton Mach. Co. i>. Corp. Daly r. Proetz Dalzeil v. Dueber Dame f. Dame V. Hadlock V. Wood Damon v. Granby Dana v. Fieidler V. Sawyer V. Third Nat. Bank Dana, The Dana Co., Matter of D-.nforth v. Streeter Daniel v. Gracie V. Streely V. Sinclair Daniels v. Hatch V. Henderson V. Kyle V. Pond Dansey f. Richardson Danville v. Pace SECTION SECTIOIT 423 Da Prato Co. v. Giuliani Co. 536 44.1 D-arby v. Callaghan 27 485, 489 Darcey i'. Hospital 52 36S D'Arcy v. Tamar R. R. Co. 226, 229 477 Darden t". Schuesslcr 281 457 Darling i'. Idarcli 193 r)4(; Darracott f . Pennington 173 398 Darragh f. Elliotte 400 545 Darrington v. Bank of Alabama 349 360 Dartmouth College v. Woodward 42b 215, 216, 241, 242, 243 161 Daskam V. Ullman 81 84 Davenport v. MeChesney 422 549 Davenport v. Palmer 467 279 David v. Conard 253 357 Davidson r. Almeda Co. 502 279 t\ Cooper 27 80 i\ Kelly 369 285 V. Lanier 459 372 Davies Re 162 170 Davies v. Bowes 535, , 53"6 514 V. Maryland Casualty Co 5595 314 v. Vernon 98 Davies' Policy Trusts Re 156 Daviess v. Newton 81 518 Davis, The 330 352 V. Anable 368 31 V. Barr 81 256 v. Bigler 385 143 V. Bowsher 382 Ass. Co. V. Bradley 383 545, 546 V. Brig Seneca 209 172 V. Cook 189 78 V. Converse 280 534 V. Eyton 108 271 V. Funk 407 Com'n 241a V. Johnston 208 431 V. Keyes 193 524 V. McCready 458 113 V. McFarlane 103 212 V. Morris 36 254 V. Moss 114, , 127 229 V. Patrick 173 257 V. Rider 267 452 r. Smith 161, 188 382 V. Walker 253 307 Davis Co. i\ Whitmore 502 156 Davis's Appeal 487 74 Davison f>. Holden 201 28 Day V. Holmes 496, , 505 126a V. McLea 367 263 V. Noble 311 366, 372 t\ Swift 400, 426 437 V. Vinson 74 466 Dayton r. Moore 271 121 V. People's Savings Bank 427 379 Deady V. Nicholl 40 289 Deal V. Palmer 113 TABLE OF CASES. xliii SECTION Dean v. Allalley 119, 121 V. Am. Mut. Life Ins. Co. 551 V. Conkey 370a V. Ilerrick 269, 274 V. Texas 202 V. Williams 264 Deane v. Caldwell 35 Dearing v. Hockersmith 468 Dearie v. Hall 78 De Barry v. Withers 81 De Bekker v. Stokes Co. 536 Debow V. Colfax 106 Debs Re 241a Decker v. Adams 81 V. Smith 533 De Courcey v. Colling 429 V. Little 425 Dederick v. Leman 366 Dedham Bank v. Chickering 224 Deeks v. Strutt 63 Defreese v. Lake 560 De Gendre v. Kent 143 Degraffenreid v. Scruggs 113 De Groff v. Linen Thread Co. 23G De Haven's Estate Re 173a, 547 Deisch v. Worten Co, 369 De la Chaumette v. Bank of Eng- land 351 Delancy v. Van Aulen 543 Delano v. Butler 485 V. Montague 25 Delta Land Co. V. Sherwood 257 Delval V. Gazuon 82 Demi i\ Bossier 108 De Moltke-Huitfeldt V. Garner 271 Dennett v. Cutts 383 V. Hopkinson 106 Denison v. Tyson 445 Dennistoun v. Stewart 453 Denny v. Cabot 173, 178 V. Cleveland R. 477 V. Van Dusen 437 Denton i\ Peters 456 Denver v. Roane 191 De Peyster v. Clendining 152 Deposit Ass. Co. v. Ayseougli 491 Depuy f>. Clark 407 Des Moines Bank v. Arthur 458 Des Moines Co. v. Uncaphor 430 Detroit Co. v. Mine Supply Co. 533 Detroit Service Co. v. Schermack 82 Detroit Steel Co. v. Sisterville Co. 126a Devaynes v. Noble 371 Devers t\ May 104 Devine v. Edwards 257 Devlin v. Le Tourneau 34 Devon v. Ham 372 Dewar v. Mowinckel 471 SBXTIO.X Dewees v. Middle States Co. 457 V. States Co. 452 Dewey v. Bow-man 395 Dewing v. Perdicaries 502 r. Sears 445 Dewitt V. Brisbane 75 I". Keystone Nat. Bank 254 De Wolf V. Johnson 267 D'Eyneourt r. Gregory 116, 120 Dibert r. D'Arey 59 Dickenson v. Edwards 288 Dickerman r. Day 267, , 275 Dickey v. Brown 271 Dickinson v. Burr 81 r. Dickinson 193 v. Kline 491 V. Seaver 75 V. Tyson 77 Diederich t'. Rose 42a Dies V. Wilson County Bank 446 Dieterich v. Fargo 60 Dietrick v. O'Brien 40 Dillingham f. Bolt 425 V. Snow 219 Dillon V. Barnard 389 Dingley f. Dingley 149 Dingman f. Kelly 27 Divoll V. Atwood 285 Dix V. Coal Co. 49 V. \ an Wyck 279 Dixon v. Buell 81 V. Stansfield 383 t;. Yates 389 Doak r. Bank of State 416 ■V. Brubaker 427 Doane v. Garretson 438 f. Russell 376 Dobscheutz v. Holliday 113, 121 Dodd V. Watson 165 Doddington v. Hallett 208, 209 Dodge r. Brown 458 V. Emerson 368 V. Pond 146, 147 V. Tulleys 260 Dodge Co. V. Construction Infor- mation Co. 535 Dodgson r. Bell 91 Dodson f. Corey 100 Doe r. 40 V. Batoman 30 V. Bird 32 V. Byron 36 V. Carter 32 V. Clarke 32 V. Gold win 40 V. Gunnis 100 V. Hawke 32 V. Humphreys 40 xliv TABLE OF CASES. Doe V. Jackson V. Jones V. Keightley V, Lawrence V. Lock V. Marchetti V. Moflfatt V. Palmer V. Peck V. Price r. Turner V. Watkins V. Watts V. Wells V. Woodbridge V. Woodman Dolman v. Cook i\ Pricliard SECTION 40 39 40 28 28 38 26 40 32 25 25, 106 40 25 39 39 40 279 180 Domestic Sewing Machine Co. i\ Watters 3'81 Donahoe v. KetteU 323 Donald V. Hewitt 417 V. Suckling 395, 403, 404, 407 Donnelly v. District 369 V. People 241 Donner v. Quarterman 166a Doolittle V. IMcCullougli 80 Dorr V. Waldron 307 Dorriel v. Eaton 408 Dorsey v. Wayman 371 Doty V. Bates 188 Dougal I'. Cowles 448 Dougherty v. Van Nostrand 185 Doughty V. Savage 372 V. Weston 82 Douglas V. Knickei'bocker Life Ins. Co. 550 V. Shumway 101 Dovey's Appeal 79 Dow V. Gould 298 V. Moore 202 Dowling V. Bank 188 V. Eggemann 383 V. Exchange Bank 186 Downes v. Church 444 Downey v. Hicks 367 V. Savage 176 Downie v. ^^^lite 490 Downing V. Farmers' Ins. Co. 548 V. Marshall 233 V. Potts 223 Downs V. Collins 194 V. Planters' Bank 454 Dows V. Nat. Exchange Bank 399 Doyle V. Bush 165 V. Mizner 220 V. Scott 36 V. Stevens 427 SECTION Drake v. Hall 173a V. Lux 285 V. Thyng 189 V. White 408 V. Wells 101 Draper v. Hitt 367 V. Pierce 366 V. Springfort 477 Dray V. Dray 166 Driesbach v. Wilkesbarre Bank 272 DriscoU V. West Bradley Co. 501 Drohan v. Norton 179 Drucklieb v. Harris 227 Drucklier V. Harris 217 Druid, The 311 Drummond v. Griffin 431 Drury v. Cross 257 V. Morse 268 V. Wolfe 269 Dry v. Boswell 178 Drybutter v. Bartholomew 482 Dry Dock Bank v. American, &c. Co. 275 Dryfus V. Byrnes 271 Dublin V. Attorney-General 222 Dubois V. Kelley 127 Dubose V. Parker 271 Duckett V. Satterfield 326 Dudley v. Barrett 368 Dudley v. Price 512 V. Warde 112, 119, 120 Duer V. Corbin Co. 520 Dueringer V. Klocke 560 Duffield V. Elwes 77 Dugan V. United States 458 Duke V. Cahawba Nav. Co. 497 Duke of Beaufort r. Neeld 81 Duke of Newcastle v. Lincoln 99 Dumergue V. Rumsey 122 Dunavan v. Flynn 449 Dunavant v. fields 126a Duncan V. Brennan 397, 410 V. Hill 505 V. Magette 256 V. McCullough 451 Duncklee V. Webber 30 Duncomb V. N. Y. &c. R. 236, 239 Duncuft V. Albrecht 503 Dunklin i\ Wilkins 75 Dunlap i\ Moore 38 V. Watson 193 Dunn V. Keyle 226 V. Meserve 400 Dunning f. Crowfutt 49 V. Stearns 417, 419 Dtmton Re 421 Diipee V. Boston Water Power Co. 232, 236 TABLE OF CASES. xlv SECTION" 43G Co. 53(5 35 275 505 435 156 50 270 77 238, 446 179 366 548 428 263 194 76 309 31 16fi Dupuy V. Gibson Dii Puj' V. Post Telegram Diirand r. Howard Durant r. Banta V. Burt Durfee v. Grinnell Durfee's Estate Re Durgan r. Davles Durkee v. City Bank Durst r. Swift Dutton v. Marsh V. Woodman Duval V. McLoskey Duvall V. National Ins, Co. D'Wolf V. Harris Dyar v. Slingerland I^er r. Clark V. Homer V. Lewis I*. Wightnian V. Wilbur E. Eadie r. Slimmon 547 Eager v. Crawford 173 Eagle, The 334 Eagle Bank r. Kignev 270 Earl of Stafford v. Buckley 542 Earle r. Carson 517 V. Grant 408 V, Keelv 126a, 127 V. \\Tiiting 255 Early v. Burtis 124 V. Reed 188 V. Rogers 368 Earp's Appeal 143, 145 East Kingston r. Towle 50 East Lincoln v. Davenport 477 East River Bank v. Hoyt 272 Eastabrook v. Union Mut. Life Ins. Co. 551 Easter r. Virginian Ry. 257 Easterlin r. Rylander 273 Eastern Plank Road Co. v. Vaughan 220 Eastern R. i'. Boston & Maine R. 240 Eastman r. Commonwealth 351 V. Dunn 38, 170 r. Perkins 23 r. Wright 78 Easton r. Strother 191 Bates V. Montgomery Bank 272, 283 Baton V. Aspinwall 513 V. Lyon 30 Eaves v. Estea 116, 124 Eddy, The 39 la Edelstein v. Mecklowitz 275 Edghill r. Mankey 106 SECTION 446 Edis V. Bury Edison V. Allis-Chalmers Co. Edison Electric Co. v. Blount r. De Mott Edmonds v. Mutual' Life Ins. Co. Edmiston v. Wright Edson V. Newell Edwards v. Cottrell V. Countess of Warwick V. Elliott V. Hall V. Ice Co. V. Johnson V. Mayes V. Peterson Effinger v. Kenny Egbert v. Lippmann Ege V. Kille Eggleston v. Mundy Ehrensperger v. Anderson Ebrics r. De Mill Eichelbcrger v. Bamitss V. Mann Eidmon v. Baldwin Eiler's Music V. Reine Eisenhart V. Slaymaker Elder v. Rouse Eldredge v. Bell Elgin r. Gross-Keely Co. Elizabeth* r. Pavement Co Elliot r. Davis Elliott V. Bishop r. Chesnut V. Edwards V. First Bank Ellis ?;. Branin V. Dunham V. Paige Ellston v. Deacon Elmore Cotton Mill Re Elswick V. Ramey Elwell V. Skiddy Ehves r. Briggs Gas Co. V. Maw 112, 113, 118, 120, 121, 127 Ely r. Carnley 434 Emanuel r. Misicki 283 Emerick r. Coakley 547 Emerson r. Y>odge 528 r. Heeiis 103 Emery r. Hobson 469 V. Himtington 332 r. Irving Nat. Bank 471 Emlcn r. Lehigh Coal Co. 256 Emmerson r. Claywoll 81 Empire State Co', r. Cohen 82 Em])ire Trust Co. v. Coleman 287 r. Manhatan Co. 453 523 462 447 548 188 425 437 145 307 482 446 167a 393a 74 346 523 113 432 351 446 140 370o, 494 20 173a 164 407 32 82 522, 533 188 112 456 307 467 284 81 38 188 271 299a 321, 325 53 xlvi TABLE OF CASES. SECTION Emrich r. Ireland 113 Endicott-Joliiison Co. r. Simpson 369 Endsor v. Simpson 209 Engineering^ Co. r. Beam 370a Englaiui, Tlie 214 V. Curling 183 V. Dearborn 484 English V. MeElroy 395, 409 Ennis r. Hutchinson 161, 166 Enslava v. Crampton 267 Kpstein v. Dunbar 426 Equitable Co. r. Harger 458 Equitable Soc. r. Union Pac. R. 508 Equitable Trust Co. r. Christ 119 V. Fowler 269 Erickson v. Jones 127 V. Nesmith 517 Erie Bank v. Smith 401 Erie Dispatch v. Compress Co. 472 Ernest v. Nicholls 554 Erwin v. Downs 451 Eslava r. Crampton 266 Essex I". Essex 186 Essex Co. V. Pacific Mills 345 Estabrook v. vSmith 456 Esterly r. Cole 253 Etheridge v. Binney 177, 188, 191 V. Ladd 451 Ettinger V. Christian Schuck 27o Ettlinger r. Kruger 34 Eunson t\ Dodge 530 Eureka Company v. Bailey Com- pany 229. 529, 534 Evans r. Beekwith 253 V. Eaton 526 V. Evans 194 V. Hardy 105 V. Herring 426 V. Inglehart 105, 106, 140 V. Powis 366 V. Roberts 101, 103, 105 V. United States Life Ins. Co. 550 Evarts v. Killingsworth Man. Co. 242 Everett v. Hall 423 V. Ingram 286 Everman v. Robb 100 Evertson v. Nat. Bank 476. 477, 479 Ewald V. Louisville 244 Ewing V. Howard 281 Excelsior, The 329 Excelsior Co. v. Smith 126a Exchange Bank v. MeLoon 77 i;. Rice 448 Exchange Nat. Bank r. Little 446 F. SECTION- Factors' Ins. Co. )■. Marine Co. 400 Fairbanks v. VVarrum 53 Fairburn v. Eastwood 122 Fairchild v. Fairchild 186 Fairlee v. Denton 77 Faith V. East India Co. 324 Falconer v. Campbell 219 Falk V. Moebs 446 Fall River Co. v. Borden 172 Fallon V. O'Brien 50 Fannie, The 328 Fant V. Fant 81 Farewell v. Coker 382 Farmer v. Francis 148 Farmers' Bank v. Bell 422 V. Burchard 272 V. Butchers' Bank 467 r. Rathbone 459 V. Wasson 495, 501 Farmers', &c. Bank v. Dearing 219 Farmers' Loan, &c. Co. v. Com- mercial Bank 113, 421 V. Hendrickson 113, 426 Farnsworth v. Allen 452 V. Boardman 199 Farnum v. Hefner 108 Farr v. Grand Lodge 156 V. Johnson 185 V. Lodge 162 V. Pearce 185 V. Semple 253 Farragut. The 328 Farrant v. Thompson 123 Farrar r. Beswiek 207 r. Chanflfecete 126 ;•. Pillsbury 370a r. Stackpoie 123 Farrell r. Bean 419 V. Passaic Water Co. 502 Farwell v. Jacobs 63 Faulkner v. Hill 410 Faull V. Tinaman 81 Faunce r. State Mut. Life Ass. Co. 552 Fay 15. Muzzey 113, 119, 121 V. Noble ■ 172, 236 Fearns r. Young 140 Fcigenspan r. McDonnell 191 Felcher v. McMillan 122 Feigner r. Slingluff 259 Fellows r. Johnson 127 V. Stevens 372 Fenn r. Bittleston 430 v. Harrison 456 Fennings v. Grenville 165 Ferguson r. Clifford 430 r. O'Brien 126a Ferris r. Bond 445 V. Boxell 366 TABLE OF CASES. xl Vll SECTIOX Ferry v. Ferry 263 Fessenden v. Coolidge 440 Fidelity Co. v. Stafford 82 Field V. Burnam 254 V. Farrinfrton 387 V. Holland 371 V. LaiHsont Co. 508,510 V. Magaw 75, 77, 78 V. Xew Voi-k 78 Fielder Lumber Co. r. Smith 82 Fi field r. Farm^ers' Bank 113. 115a, 124a r. Nat'l Bank 124a Figlia Maggiore, The 471 Fikes r. Manclie-ter 430 Filburn c. Aquanim Co. 50 Findlay v. Corn Ex. Nat. Bank 82 Finley v. Transport Co. 52 Finney v. Watkins 121 Fire Ins. A.s Folsom f. Marsh 536 Fontain*' r. Tyler 562 Foot V. Berkley 27 r. Sabin 189 Foote, Appellant 562 r. Blanchard 253 V. Colvin 106 v. Gooeh 115a r. Salem 477 Forbes r. Alabama Machinery Co. " 126a r. Am. Mut. Life Ins. Co. 550 7\ Marshal! 222 r. Gorman 42a. Force r. Elizabeth 477 Ford V. Cobb llfi t\ Cotosworth 325 xlviii TABLE OF CASES. SECTION Ford r. Dallam 455 V. Garner 77 V. Guano Co. 436 V. Hancock 275 V. Peering V. Tirrell 98 254 V. Tynte V. Vandyke Forman v. Proctor 97 263 421,423 Forney v. Adams Forster v. Mackreth 188, 189 188 Forsyth V. Beveridge Fort V. Barnett 383 369 Fort Madison Bank v. Alden 481 Fort Worth Co. r. Bridge Co. 233 Fort Worth v. Fair Assoe'ii 42o Forth r. Simpson 380 Forster r. Wandlass 257 Foss r. Marr 109 Foster, Ex parte 393 V. Blackstone 79 V. Busteed 307 V. Colby 324 v. Jul i en 451 i\ MeKinnon 456 v.. Perkins 427 V. Prentiss 129 t\ United States Ins. Co. 188 Fourth Nat'l Bank v. Mills Co. 383 Fourth Nat. Bank v. Willingham 426 Fourth Street Bank V. Yardley 77 Fowkes V. Manchester, &c. Asso- ciation 549 Fowler v. Bott 31 V. Brantly 458 V. Bush 367 V. Bushby 367 V. Davenport 257 V. Fowler 146,383 V. Howell Co. 526 V. Ludwig 367 V. Merrill 425 V. Rathbones 331,332 V. Stoneum 417 Fox V. Clifton 180, 184 v. McGregor 387 v.. State of Ohio 348 Fraker v. Reeve 409 Frank i'. Haldeman 53 v. Miner 425 V. Morris 281 Franklin r. Meyer 422 v. Neate 405 Franklin Bank r. Freeman 470a V. L\Tich 448 V. Pratt 440 Franklin Fire Ins. Co. v. Hart 494 SECTION Franklin Glass C». v. Alexander 516 Franklin Ins. Co. l". Lord 442 Frans v. Young 163 Franzen Re 35 Frazer v. Cuthbertson 208,212,214 Frazier v. Trow 466 Freeborn v. Smith 170 Freedom, The 321 Freeman i\ Baldwin 417 V. Freeman 430,435,436,439 V. Newton 75 V. Specialty Co. 170 V. United Fruit Co. 322 Freese v. Arnold 165 V. Brownell 279 Fremont Mfg. Co. v. Thomsen 232 French v. Fuller 511 V. Harding 499 V. Haskins 433 Freshfield Trusts 78 Fretz r. Stover 346 Freund r. Importers' Bank 467 Fridley r. Bowen 397 Friedlander v. Tex. R. 471 Frisbee r. Langworthy 427 Fritts V. Palmer 233 Fritz's Estate 75 Frog Co. V. Haven 509 Froman r. Fitch 536 Fromme t\ Jones 426 Frost t\ Clarkson 503 V. Frostburg Coal Co. 223 V. Mott 427 V. Shaw 396 Frothingham v. Everton 387 Fry V. Bank of India 324 V. Coleman 267 v. Ford 108 V. Jones 28 V. Kilborn 34 V. Lexington, &a R. R. Co. 489 V. Miller 427 V. Sanders 189 Fuentis v. Montis 398 Fugitt V. Nixon 455 Fuller V. Bilz 82 V. Ferguson 172 V. Fuller 166 V. McLeod 431 V. Parrish 417 V. Smith 370a V. Tabor 113 V. Taylor 113 V. Van Geesen 236 r. Webster 299 Fullerton's Appeal 357 Fulton, Ex parte 361 TABLE OF CASES. xlix SECTION Furlong v. Bartlett 207 V. Pearce 280 Furness v. Randall 320 Furniiss V. Ferguson 81 Furnival v. Crew 30 G. Gabell v. Shevell 31 Gabriel v. Evill 170 Gaffield v. Haj^ood 127 Gafford v. Stearns 161 Gage V. Maryland Coal Co. 325 V. Morse 325 r. Whittier 431 Gager r. Babcock 214, 311,313 Galigher v. Jones 505 Gallagher v. Shipley 121 Galland Re 383 Galpin v. Chicago 254 Galton V. Hancock 361 Galveston City Co. v. Sibley 499 Galveston R. V. Cowdry 113 Galway v. FuUerton 77 Gamble V. Dawson 482 i\ Loffler 167a Gammon v. Huse 193 Gannett V. Cunningham 79 Gansevoort r. Williams 188 Gardiner v. Childs 184 Gardner i\ Adams 75 V. Barnett 256 V. Cleveland 166 V. McEwen 421, 428 V. North Ins. Co. 548 V. Smith 77 V. Watson 370a Garland, Ex parte 194 Garlick v.. James 407 Garnsi'v c Gardner 77 Garrard r. Haddan 462 r. Moody 386 Garrick Theater Co. r. Gimbel 38 Garrison v. Howe 513 Garrity i\ Cripp 273 Gas Co. V. Thurber 122 Gasser v. Wall 167a Gate City Bank r. Thrall 275 Gaters v. Maddeley 69 Gates i\ Andrews 365 n. Beech er 451 V. Hackenthal 274 Gaty i\ Holliday 402 Gatzcrt r. Lucey 82 Gaul r. Willis 269 Gault V. Thurmond 271 Gavin v. Walker 177 SECTION Gawan v. Barclay 124 Gay I". Gardiner 254 V. Rooke 256 Gayler v. Wilder 75, 521, 528 Gazley v. Williams 35 Gazzanx v. Armstrong 449 Geach r. Ingall 549 Gebhart v. Sorrels 269 Geiser v. Kershner 366 Gelpcke v. Daibuque 476,477 General Smith, The 317,391a Genesee Chief, The 334 Geohegan v. Union R. 254,257 George V. Concord 345 George and Richard, The 328 Georgia Granite R. v. Miller 227 General Electric Co. v. Hoskins Co. 520 General Rubber Co. V. Benedict 509 Gentry r. Fife 370a Geppert a Stone Co. 126a German v. German 140 German Alliance Co. V. Barnes 559a German Ass'n v. Leavens 287 German Bank i\ United States 479 German Ins. Co. v. Kansas 559a German Mining Co. Re 239 German Savings Bank v. Wulfe- kuhler 232 Germania Ins. Co. v. Bouldin 548 Getchell iv Maney 77 Gerrey v. Wliite 418 Gerrish v. S'weetser 80 G. H. R. V. Freeman 62 Gibbons t\ Mahom 143 Gibbons Re 16 Gibson v. Carraker 106 V. Cook 77 V. Goldthwaite 225 Gibson r. Linthieum 42r) V. W'arden 188,418 Giffert v. West 76 Gifford ?v Allen 372 Gilbert v. Bell 34 V. Dennis 453 V. Manchester Iron Co. 223 Gilbert's Case 498 Gilchrist r. Patterson 433,434 Gilchrist Tr. Co. V. Boston Ins. Co. 326 Gilder r. Jater 278 Gile r. Stevens 130 Gilkey v. How 220rt Gill i\ Bartlett 18 V. Cubitt 458 r. De Arman 123 V. Kuhn 180 TABLE OF CASES. SECTION Gill V. Pinney 42f) V. Wells 521) Gill's Appeal 261 Gillan v. Simkin 322 Gillespie v. State 287 Gillet r. Fairchild 50 Gillett r. Balcoin 10!) r. Campbell 77 V. Mason 50 V. Thornton 18:5 Gilley i". Burley 148 Gilliat i\ Lvnch 410 Gilligan Co. v. Casey 222 Gilman v. Brown 386 Gilmore r. Ferguson 273 V. Gale 432 V. Merritt 176, 177 Gilpin 17. Hollingsworth 161 Gilson V. Gwinn 381 V. Martin 397 Gimbel v. Barrett 257 Ginn v. Mortgage Security Co. 271 Girard Fire Ina Co. v. Marr 401 Girard Ins. Co. r. Mut. Ins. Co. 553 Girardy v. Richardson 41 Gittings V. Nelson 395 Given v. Kelly 156, 161, 165 Givin V. Moore 455 Gladhill, Ex parte 357 Gladstone i: Birley 384 Gladwell v. Turner 453 Glasgow V. Lipse 346 Glaze i\ Blake 423 Gleason v. Childs 274 Glegg, Ex parte 122 Glenn v. Liggett 299, 516 V. MarbuTv 516 Glennan v. Rochester Co. 82 Glidden r. Bennett 113 Globe Ass'n r. Brega 426 Globe Marble Mills Co. r. Quinn 123 Globe Mills r. Quinn 116 Glover v. Austin 164 Glue Company v. Upton 520 Glyn V. Baker 474 n East India Dock Co. 321,399,400,471 Goddard r. Chase 126 r. Merchants' Bank 462 V. Pratt 175, 193,511 V. Sawyer 422 ^^ Winchell 53 Godfrey v. Fames 525 r. Hughes 370a V. Leigh 268 V. White 166o, 191 Godin r. London Assurance Co. 386 Godley r. Crandall Godsall V. Boldcrs Goell t\ Mor.se Goesele v. Bimeler SECTION 510 546 161. 163,165 172 Goetz V. Kansas Citv Bank 461, 462 Goetz's Estate ' 510 Coff r. Kilts 50 Goldberg v. West End Co. 259 Golden r. Manning 320 Goldman r. Murray 82 Goldsmidt r. Church Trustees 408. 409 V. First Methodist Church 408 Goldsmith v. Sachs 183 Goldstein r. Hort 398 Golowitz V. Hendlin 371 Gompertz ix Bartlett 458 Goode V. Burton 389 V. Cheeseman 372 r. Harrison' 179 Goodenow v. Dunn 395 Goodhue r. Palmer 278 Goodman v. Harvey 458 r. Oshkosh 371 V. Simonds 458 i: Whitcomb 192 Goodnow i\ Warren 455 Goodrich r. Buzzell 286 V. Jones 113, 116, 121 V. Rogers 273 ir. Stanley 78.369 r. Willard 380,434 Goodridge v. Lord 324 Goodright t'. Cordvvent 40 Goodwin r. Bishop 271 V. Dick 491 V. Hardy 510 V. Robarts 474 V. Mass. Ins. Co. 553 Googins r. Gilmore 421, 422, 430 Gordon, Ex parte 334 Gordon r. Downey 81 i\. Drury 81 V. East India Co. 305 V. James 104 V. Lowell 364 V. Richmond R. 510 r. United States 262 Gore V. Mason 503 Gorgier r. Mieville 478 Gorham r. Summer.s 425 Gorham Co. r. White 541 Gorman i\ Pacific R. R. Co. 219 r. State 358 Gorst V. Lowndes 151 Gosden i\ Dotterill 352 Goshen v. Hurtin 446 Gosman Re 253 TABLE OF CASES. li SECTION Goss r. Emerson 405 r. Helbing 124 Gossett r. Drydale 106 Gott V. Cook 147 r. Dinsmore 202 Gottfried r. Miller 528 Gottlieb r. Hartman 400 Gould v. Emerson 547 r. Rees 532 i\. Sterling 477 Goulet r. Asseler 430 Gowan v. Foster 209 Gower v. Gower 16 V. Moore 455 Graff V. Pittsburgh R. 491 Grafton Co. v. State 510 Gragg V. Martin 76 Graham r. Cooper 284 V. Goudy 81 r. Meyer 190 Grange v. Penm Ins. Co. 548 Granger v. Bassett 145 r. French 82 r. Stewart 326 Granite Bank r. Ayers 451 V. Richardson 407 Granite Brick Co. r. Titus 486 Granite City Bank r. Cross 288 Grannis r. Stevens 281 Grant r. Chambers 462 r. Ellicott 459 V. Grant 361 l\ Hunt 448 V. McLachlin 307 V. Monticelio 369 V. Skinner 417 r. Walker 525 l\ Walter 520 Grapeshot, The 312. .391a Grattan r. Metropolitan Life Ins. Co. 549 Graves v. Berdan 41 V. Dunlap 49 r. Lebanon Xat. Bank 361 r. Ueld 105 Gray r. Bennett 354 'r. Bledsoe 383 r. Brown 279.286 r. Carr 325 r. Coffin 498 1-. Graziani 393ff r. Hemenwav 245. 510 r. Hold.-^hip" 129 V. Portland Bank 493 V. Raper 446 r. Russell 536 Gray /•. Smith f. State Gray Eagle, The Greacen v. Buckley Co. Great Eastern, The SECTIO.N 193 256 328 217 315,323 Great Western Co. r. Loe.wenthal 490 Greddles v. Wallace 183 Green v. Ashby 77 V. Bass 429 r. Crapo 487 V. Farmer 380 V. Graves 218 I'. Jacobs 417 V. Phillips 113, 123 V. Rutherford 241 r. Sevmour 220 a Van Buskirk 298.299 Green Bay Canal Co. r. Paper Co. 38 Greenby r. Wllcocks 73 Greene v. Messick Grocery Co. 27a V. Nash 509a Greenlee v. Young 81 Green ough i\ Smeed 456 Greenville r. Green 222 Greenwood r. Marvin 75 Gregg r. Chamber of Commerce 222 Gregory, The 328 Gregory v. Bewley 274 n. Rosonkrans 56 Grev r. Friar 361 Gribbling r. Boh an 82 Griffin r. City Bank 477 r. New Jersey, &c. Co. 271 r. Ransdell 117 r. Weatherby 446 Griggsbv r. Russell 548 Grill f.'Collier Co. 328 p. Iron Screw. &c. Co. 321 Grim r. Wicker 162, 164, 165 Grimes r. Hagood 254 Grinncll r. Cook .380 Gri.sbv i'. Russell 547 Griswold r. Waddington 171. 192 Gross r. Eiden 381 Groton Man. Co. r. Gardiner 417 Grounds r. Ingram 419 Grove ;". Great Nortlurn Loan Co. 279 Grover r. Grover 81 Groves r. Wright 140 Grovevold r. Federal Co. 477a Grow r. A I bee 285 Grubh r. Brooke 271 Grubhe r. La hay 369 fJiiardian Mut. Life Ins. Co. r. TTogan 546 Guardian Tru.«it Co. f. Straus 550a Guck.rt r. Hacke 220a lii TABLE OF CASES. SECTION Guillon r. Peterson 197 Gunderson v. Bierson 49 Gunn V. Central R. 171 V. Head 263 V. McAden 369 Gunnison v. Gr^g 279 Gunsten V. Green 462 Gurney v. Behrend 471 V. Womersley 456 Gushee i\ Robinson 417 Guthrie n. Weaver 52 Guthrie's Trustees v. Akers 517 Guyman v. Burlingame 446 Guynn v. Daugherty 254 H. Haag* V. Reichert 82 Haak v. Linderman 386 Hackenberry v. Shaw 256 Hackett i\ Amsden 129 V. Martin 78 Haflick r. Stober 127 Hagar r. Clark 323 V. Reclamation District 342, 354, 373 V. Union Nat. Bank 501,510 Hage w. Campbell 427 Hagerman Co. v. McMujry 53 Haggerty v. Foster 198 V. Taylor 200 Haile v. Pierce 446 Hailes v. Albany Co. 529 V. Van Wormer 520 Hakes V. Hotchkisa 372 Hale V. Barrett 386 V. Hale 269 Hall v. Bradbury 451 IX Edson 172 V. Farmers*' Bank 258 V. Flanders 77 V. Glass Co. 82 V. Graham 254 V. Lanning 189 V. Marston 371 V. Newcomb 456 V. Oagett _ 191 V. Robinson 59 V. Sampson 430, 431 V. Scott 256 V. Smith 366 t\. Steel 449 V. Wadsworth 40 Hall-Borchert Co. v. Ellanan Co. 526 Hall's Will, In re 140 Hallett V. Wylie 31 Halliday v. Holgate 375, 405, 407 SECTIOX Halloran v. Whitcomb 81 Hallowell Bank v. Howard 351 Ham V. Kendall 113 V. Van Orden 76 Hambleton V. Central Ohio R. 502 Hamburger v. Settegast 32 Hamilton i\ Baker 391a V. Huntley 124 V. Lycoming Mut. Ins. Co. 558 V. Newcastle R. 238 V. Rogers 421 V. State 54 V. Vought 458 Hamlin v. Mack 50 Hammill v. Hammill 193 Hammond v. Ann. Mut. Life Ins. Co. 553 V. Hastings 499, 501 V. Hopping 267 Hammonds v. Barclay 378, 383 Hammer V. Barker 170 Hamper, Ex parte 178 Hampshire v. Wickens 32 Hampson v. Owens 81 Hampton, The 441 Hamridge V. De La Crou4e 188 Hancock v. Bewley 162 t: Caflfyn 30 V. Franklin Ins. Co. 410 Hancock's Appeal 80 Handley v. Howe 425 V. Stutz 485,512 Haney v. Schooner Rosabelle 307 Haiikey v. Becht 172, 173, 185 Hani^^r. Kempton 279 Han^3;:Jp.'..Phelps 380, 386 Hanmaii& *. N. Y. Typewriting Co. 499 - Hannam V. Dockett 50 .Harmey n. Eve 313 Hannibal r. Fauntleroy 477 Hannis Distilling Co. V. Balti- more 241a Hansen r. Prince 34 Hanson v. Keely 126a V. Millett 51 Hapgood r. Hewitt 528 Harbison Re 255 Hardaway v. Semmes 298 Harden v. Gordon 315 Harding v. Cobuxn 419,421 V. Foxcroft 206 Hardy v. Sprowle 165 Hare'f. Henty 469 t\ Horton 128 V. Waring 503 Hargrave v. Conroy 178 TABLE OF CASES. liii Marker v. Anderson V. Dement Harkness v. Sears Harlan v. Harlan Harmer V. Bell Harms v. Stern Harmon v. Nat. Bank v. Short SECTION 465 403 114, 120 121 391 536 436 430 Harpending v. Dutch Church 231 Harper v. Butler 81 y. Graham 366 V. Phoenix Ins. Co. 551 V. Virginian R. 502 Harpham v. Hajnes 458 Harral v. Wright 163 Harrill v. Davis 170 Harriman v. Harriman 366 Harrington v. Brittan 440 V. Harrington 99, 148 V. Miles 50 V. Price 98 IX Rich 77 V. Samples 422 Harris r. Clanton 446 V. Clark 84,164 V. Frink 106 V. Johnson 1 V. McGregor 220 Harris' E.state i?0 160 Harrison r. Armour 486,513 17. Foster 140 V. Jackson 188 V. Sterry 188 V. Tennant 192 Hart V. Alexander 193 V. Bonton^Bellefontaine R>. 56 V. Boiler 367 V. Eastern Union R. R. Co. 236 V. Goldsmith • 283 V. Marks 161 V. Shaw 319 V. State 50 V. Tomilinson 1!T3 V. Windsor 30, 31 Hartdagcn Re 299a Hartford, &c. Ins. Co. v. Hadden 279 Hartford Life Ins. Co. v. Unsell 553 Hartley v. Case 453 V. Eagle Ins. Co. 271 V. White 189 Hartman V. Greenhow 478 V. Keystone Ins. Co. 549, 551 Hartnett i\ St. Louis Co. 516 Hartshorn v. Day 528 V. Saginaw Co. 523 Hartwell r. Kelly 113 SECTION Harvard College v. Amory 487 Harvey v. Cherry 163 V. Harvey 119 V. Lenville Improvement Co. 509a V. Varney 183 v. Weitzeiikorn 491 Harwood v. Hildretli 357 V. Tucker 77 Hasbrouck i\ Winkler 164 HaScall V. Whitmore 458 Hasey V. White Pigeon Sugar Co. 448 Haskell V. Mitchell 456 Haskins v. Ryan 64 Haslett V. Glenn 106 V. Kunhardt 455 Hatch r. Bates 437 V. Douglas 269 V. Mut. Life Ins. Co. 551 l\. Wallanub Co. 305 Hathaway r. Haynes 395 i\ Trenton M. L. Ins. Co. 550 Hathorn v. Lewis 426 Hatton V. Car Maintenance Co. 380 v. Kansas City R. 126, 126a Haux'hiirst v. Hovey 260 Havelock i\ Gcddes 324 Haven i\ Grand Junction R. 229, 476 V. Haven 98 Hawes v. Humphrey 561 Hawkins r. Co. Com'rs 433 V. Glenn 516 V. Hersey 124a V. McDougal 166a Hawkin's Co. v. Morris 435 Hawkstone Street Re 126o Hawkeye Loan Asa'n v. Black- burn 271 Hawley V. Howell 269 r.' Upton 497,498 H^thorne r. Beckwith 152 IX Calef , 514 Hay V. Palmer 145, 542 Hayden v. Binney l63 Hayes v. Fish 183 V. Taylor 425 t\ Waggener 543o Hayes Merc. Co. r. Bell 161 Hayes Re ?5 Hayford v. Cunningham 391 Hayling v. Okey 107 Haymes r. Cooper 3S9 Haynes v. Nice 371 V. Thorn [xson 81 Hays V. Doane ^ 113 r. Hathorne 458 f. Riddle 400 liv TABLE OF CASES. SECTION Hayvvard v. Andrews 76 r. Le Baron 260,274 i\ Scneenbaugh 290a Haywood P. R. Co. v. Bryan 489 Hazard v. Smith 267 Hazelden v. Hanier 498 Hazeltino v. Railroad Co. 510 Head t\ Goodwin 425 V. Providence Ins. Co. 226 Heald v. Hay 74 Healey v. Tappan 139, 140 Heard r. Eldredge 143 V. Fairbanks 103 Heath v. Cable Co. 299a V. Cook 278 V. Hall 73 V. Page 274,281 V. Waters 191,194 Heaton's Estate Re 143 Hedderich n Smith 129 Hedley v. Steamship Co. 311 Heeler r. Lutz 82 Heidenreich r. Bremner 190 Heilman V. Heilman 148 Heiliger r. Ritter 82 Heilwig r. Nybeck 100 Heisrodt v. Hackett 50 Heitsoh V. Minneapolis 285 Heizer v. Heizer 542 Hellawell r. Eastwood 113 Heller r. Hufsmith 165 Helium '/'. Knechat 214 Hellyer v. Briggs 422 Helme i'. Phil. Life Ins. Co. 553 V. Strater 140 Helmer r. Krolick 446 Hemenway v. Hemenway 140 Hemmenway v. Fisher 258 Hemphill v. Yerkes 77 Hendee V. Pinkerton 229 Henderson v. Cross 148 v. Moore 366 1?. Morgan 425 «. Vaulx 140, 152 Hendry r. Hendry 256 Henkel r. Heyman 198 Henley v. Bush 77 Hennessey i\ Walsh 259 Henry v. Brown 81 r. Cherry 64 V. Dick Co. 534& 17. Great Northern R. 508 V. Philadelpliia Co. 398 V. Milham 80 Henry Re 528 Henry Clay Co. v. Barkley 126a SECTION 207 345 27a 536 78,81 256 Hcnshaw v. Clark Hepbtirn r. Griswold Herb r. Day Herbert v. Fields Hercules In.s. Co., In re llercfordsliire. In re Herkimer Manuf., &c. Co. r. Small 410 Herlakenden's Case 100 Herndon v. Chicago 241a Herrick r. Dean 281 V. Wolverton 452 Herring Vi. First Nat. Bank 82 V. N. Y. R. 242 Ilerskell r. Bus-hnell 28 Hervey r. Fonts 82 Hesketh r. Blanchard 178 Hess V. Werts 202 Hewett r. Buck 214 Hewett Re 160 Hewitt r. Sturdevant 209 ■Heywood v. Pickering 405, 469 Hickman V. Booth 126a V. Cox 178 VI Perrin 427,428 Hicks V. Kelsey 520 Hidden V. Waldo 383 Higgin.5 r. Keuffel 541 ""r. Kasterer 53,56 r. Scott 376 r. Whitney 32 Higg,s 17. Assam Tea Co. 474. 501 Higbtower V. Beall 267 Hill V. Beebe 425,440 V. Bostick 369 V. Frazier 226 V. Hill 98, 161 «. Hunt 260 i\ Mem,phis 477 V. Pine River Bank 501 V. Reiner 161 v. Robbins 371 V. Sewald 113, 124 V. Went worth 116 r. Whalen 536 V. White 32 V. Wooster 520,531 Hill Man. Co. r. Providence Steamship Co. 42, 213, 334 Hillock Vl Traders Ins. Co. 188 Hillsdale Distillery Co. r. Briant 82 Hilsendegen r. Clothing Co. 42« Hilyard's Estate 542 Hinckley t\ Arev 366 V. Wilson Co. 214,313 Hingston v. Wandt 379 Hinneman v. Roscnback Hinsdale r. Miles Hiscoek v. Varick Bank Hitobins i". Kilkenny R. R. ( Hitchman r. Walton Ilite V. Hito Hitt V. Allen Hoagland t". Cincinnati. &o. Co. Iloare r. Dawes V. Parker Hobart v. Stone Hobson V. Marsli Hodgdon r. New York R. Hodges V. Green V. Hurd V. N. E. Screw Co. Hodgkinson, Ex parte Hodgson r. Butts V. Loy r. Temple Hodkinson r. Wyatt Hodsdon v. Life Ins. Co. Hodson V. Ball Tlof i\ Mager Hoffman v. Bank t". Bank of Milwaukee V. Carow i\ Le Fraunik V. Union Ferry Co. Hoge V. Lansing Hogg V. Emerson Holbrook r. Burt V. Cliamberlin V. Ins. Co. V. Oberne Holcombe v. City R. V. Trenton Co. Holden v. Thurber Holder v. Soulby V. Taylor Holderness v. Shackels Tlolladay v. Holladay Holland r. Clianibers r. Mosteller Hollar V. Southern Bell Co. Holliday r. Pegrani llollingsworth r. Hanunond Hollinsworth v. Dow Holman v. Gauz S. S. Line V. Lock Holmes v. Bailey Bell Oerry Holt" Jacques Schmeltz rAr.r.E of cases. Iv SECTIO.N SECTIOX 34r> Holmes V. Sproul 425 451 i\ Tremper 121 408 Holroyd r. Marshall 70 ,395,421 ). 513 Holt V. Crucible Steel Co. 426 123 f. Murray 357 143 Holtzapffel i\ Baker 31 253 Home Ins. Co. v. Green 453 . R. Homer r. Guardian Ins. Co. 553 480 V. Slielton 140. 1.52 173,177 Hood r. Whit well 53,100 141,308 Hook V. Bolton 126a 366 Hooker r. Eagle Bank 76,81 401 Hookham r. Pottage 185 320, 325 Hool r. Groverman 323 132 Hooper v. Bank head 163 427 V. Lusby 188,210 232 V. Mueller 42a 188 Hoopes V. Ferguson 267 212,426 Hoover r. Weber 34 380 Hoover Co", v. Atlantic 126« 170. 175 V. Neill 254 286 Hope r. Hayley 79 553 Hopkins v. Hopkins 149 146 r. Ware 466 425 Hopkins Re 38 461 Hopkinson v. Forster 85. 466 462 Hopkirk r. Page 455 205 Hoppin r. Buffum 500 536 Hopple r. Brown 477 328 Horn V. Baker 113, 126 458 V. Gilpin 20S 526, 532 r. Hansen 256 80 r. Hardware Co. 126a 121, 122 V. Thompson 80 170 Horno v. Rouquette 454 173 Horner i\ Uitsoh 280 4 v. U. S. 475 491.513 Horry v. Glover 142 101 Horton r. Davis 305 370 Horton Mfg. Co. r. White Lily 30 Mfg. Co. 526 206, 200 Hortsman v. Henshaw 449, 462 278 Hosmer r. Sargent 437 281 Hotchin r. Kent 227 260 Hotchkiss i\ Greenwood 520 38 V. Hunt 430 27a V. Nat. Bank 476 254 Hotel Marion r. Waters 38 380 Hough r. Horsey 279 326 Houghton r. Burden 281 423 V. Brantingham 156 400,471 r. First Nat. Bank 468 430 V. Hapgood 133 284 r. Matthews 382 , 383, 385 255 r. Payne 270 445 Hoiilchan r. Kennebec Co. 370a 286 Houle r. Abramson 121 Ivi TABLE OF CASES. SECTION House V. House 119 Houser v. Fayssoux 459 t'. Kemp 395,417 Houston R. V. Van Alstyne 499 Howard v. Brown 361 V. Continental Life Ins. Co. 553 V. Fessenden 113 V. Fletcher 371 ■u. Ives 454 V. Shepherd 471 V. Smith 387 Howard Co. Re 128 Howe V. Boston Carpet Co. 232 V. Carpenter 283 f. Earl of Dartmouth 140, 487 V. National Co. 520,525 V. Starkweather 507 V. Union Ins. Co. 553 Howell i\ Hanforth 145 V. Harvey 192 V. Knickerbocker Life Ins. Co. 555 V. Mclvers 73 V. Price 361 V. Schenck 108, 109 Howkins v. Bennet 266 Howland v. Continental Ins. Co. 553 Hoxie V. Chaney 185 Hoy V. Pittsburgh Ei. 113 Hoyle V. Plattsburgh E. 225 V. P. & M. R. 225 Hoyt V. Bridgewater, &c. Co. 267, 269 V. Holley 185 V. Sprague 194 V. Thom.p.son 298 Hozey n. Buchanan 305 Hubbard v. Callahan 250,255,289 V. Charlestown Branch R. R. Co. 254, 257 Hubbell V. Flint 371 Hudson V. Bradley 212, 367 Hudson Iron Works r. Medart 520 HuflFaker v. National Bank 451 Hugg V. Augusta Ins. Co. 320 V. Baltimore, &o. Mining Co. 332 Hughes V. Young 31 Hughes-Buie Co. v. Mendoza 82 Huguley r. Morris 173 Huiskamp r. Wagon Co. 187 Hull V. Anderson 393a V. Carnley 431 V. Culver 77 V. Hull 147 V. Mass. Bonding Co. 82 Humble v. Mitchell 62, 503 Hummel v. Brown 254 Humphrey Advertising Co. Re 217 SECTIOX Humphrey v. Mut. Ins. Co. 546, 547 V. Tayleur 157, 159 Humphreys i\ Morton 256 V. Reed 386 V. Union Ins. Co. 332 Hunt V. Bay State Iron Co. 113 V. Conrad 75 V. Divine 473 Hunt r. Iron Co. 113 V. Potter 122 V. Rou.«manier 73 V. Smith 258 Hunter, Ex parte 182 Hunter v. Bullock 146 V. Fry 324 Hunterdon County Bank v. Nas- sau Bank 498 Huntington v. Porter 81 V. Savings Bank 483 Huntingdon' Co. r. Park Land Co. 82 Hurd i\ Darling 207 Hurst, In re 77 Hurst r. Craig Furniture Co. 126o Hurt v. Salisbury 220 V. Wilson 79 Husband t'. Linehan 502 Huson V. Pitman 80 Huston V. Clark 124 Hussey V. Winslow 445 Hutchins i\ Byrnes- 226, 229 V. King 100 V. Masterson 114 V. Page 170 t: State Bank 68. 500 v. Turner 188 Hutchin.son v. Ford 100 V. Howard 383 Hutton V. Arnett 419 Huyck V. Meador 445 Hyams v. Calumet Co. 245, 509 Hyams V. Old Dominion Co. 510 Hyatt r. Sewing Machine Co. 361 Hyde v. Finley 274 V. Parrat 138 V. Skinner 30 V. Stone 207 Hyer v. Caro 214 Hyne v. Osborn 82 Hynes v. Stewart 192 I. lage V. Bossieux 81 Ibbottson i\ Rhodes 150 Idalia Realty Co. r. Norman 127 Ideal Goods Co. v. Eastern S. S. Co. 326 TABLE OF CASES. Vll SECTION Igoe v. Hansen 126a Illinois, The 328 Illinois Society V. Winthrop 549 Ilsley r. Jones 448 Imboden v. Hunter 437 Imperial Bldg. Co. v. Board of Trade 220a Imperial Brass Co. v. Nel.son 523 Imperial Land Co. v. Bank 239 Imperial Land Co., In re 85,474,475 Imperial Refining Co. v. Wyman 201 Inbusch r. Farwell 188 Independent Stores v. Earles 254 India & London Life Ass. Co., In re 554 Industria, The 328 Ingersoll v. Barnes 124a V. Gourley 82 Ingraham v. Terry 244 Ingram i\ Smith 148 Insurance Co. v. Kiger 472 V. Wilkinson 549 Interboro Co. v. Doyle 477a International Harvester Co. f. McAdam 2n9a International Co. v. Cramp Co. 533 V. Gaylord 520 r. Sievert 520 International R. r. Anderson Co. 217 Installment Co. v. Skellett 393a Ins. Co. V. Burroughs 556 Interurban Land Co. r. Crawford 38 Investment Co. v. Board of Edu- cation 264 lona. The 328 Irby V. Cage 167a Irion V. Knapp 82 Irvine v. Forbes 172 V. The Hesper 329 Irving Bank r. Wetherald 467 Irwin r. Pittsburgh, &c. R. R. Co. 258 Isaacson r. Harwood 368 Ivens V. Elwes 361 Ivy Press v. McKechnie 222 J. Jack r. Davis 81 Jackson, Ex parte 193 Jackson v. Brownell 28 V. Bull 148 V. Clopton 383 V. Hartwell 235 V. Henry 279 V. Hodges 372 V. Hogan 16 r. Hooper 167a, 1730,222 V. Jackson 157 SECTIOX Jackson r. May 268 V. Newark P. R. Co. 510 V. Packard 267 V. ParkliurSt 38 V. Rounseville 132 V. Schoonmaker 27 Jackson Lumber Co. v. Western Union Co. 82 Jacniel Packet, The 314 Jacobs V. Knapp 380 V. Latour 385 V. Williams 227 Jacobus r. Mantel !o 227 Jacquith v. Worden 414 Jaffrey r. Cornish 367 Jaicks V. Oppenheimer 387 James r. Campbell 518,529 V. May 499 James River, &c. Co. v. Littlejohn 81 Janes r. Paddell 24 Janvrin r. Fogg 416 Jardine, Ex parte 419 Jarechi v. Philharmonic Society 113 Jarratt f. McDaniel 422 Jarvis v. Rogers 398, 404, 410 Jarvis's Appeal 266,271,276 Jason, The 313 Jasper Trust Co. r. Lampkin 370a Jeannie, The 326 Jebson v. Cargo of Hemp 326 Jeffery r. Selwyn 491 Jefferys r. Boosey 535 Jeffrey V. Neale 31 Jeffs V. Day 75 Jenckes v. Goffe 421 Jenkins r. McCurdy 113 V. White 460 Jenkins S. S. Co. r. Preston 313 Jenkinson v. Finance Co. 82 Jcnness i\ Carleton 194 Jennes v. Northwestern Life Ins. Co. 551 Jennings r. Broughton 490 v. bark 170 Jensen r. Wilslep 371 Jermyn v. Moffitt 74 Jerome r. McCarter 395 Jesup V. City Bank 410 Jessie Piano Co. V. Haelberg 31 Jewel's Case 2,S Jewett r. Dockray 78 V. Kecnholts 109 Jewison r. Dioudoune 180 Jocelyn r. Nott 146 Johansen Co. r. Alles 421 Johns V. Clother 491 r. Winters 33 John Hancock Ins. Co. v. Daly 549 Johnson, Tlie ' 328 Iviii TABLE OF CASES. SECTION Johnson v. Helanger 82 V. Campbell 383 r. County 85 I'. Crioliton 189 V. Frisbie 445 r. Ilatliorn 503 r. Iledrick 260. 263 i\ Hill 381 r. Hogau 186 r. Irby 81 r. Jeffries 426 V. Johnson 143 V. McFry 165 V. Mosher 123 V. Newman 62 r. Nortliern Trust Co. 34 r. Smith 79 V. Stark 477 V. Stear 404, 407 V. Underbill 499 r. Wiseman 113 Johnson Co. v. January 477 Johnson Re 96 Johnston i\ Bornhtnm 189 V. Brannan 366 V. Button 191 r. Scott 547 V. Southern Well Co. 528 Johnstone r. Cox 74 Jonau r. Blancbard 199 Jones Re 141 Jones V. Berryhill 459 V. Brinker 322 r. Brown 165 V. Bullitt 366 V. Cable 156 V. Carter 62 V. Chair Co. 124 V. Clark 204 V. Concord & Montreal R. 510 r. Cresote W'orks 82 r. Flint 103 V. Gay 271 V. Gordon 458 V. Gould 170 n. Guaranty Co. 422 V. Huggeford 79,433 V. Johnsoni 368 V. Joyner 278 r. Kirksey 282 r. Kinney 167a r. Leslie 4 r. Mai lory 253,257,2.60 V. McLean 271 V. Moncrief Co. 34 V. Perkins 370 V. Reynolds 75 r. Richardson 421 r. Simmons 140, 152 SECTION Jonvs r. State 48 V. Swayze 427 V. Tarleton 388 V. Thomas 109 V. United States 371 V. Ward we II 453 •*;. Webster 430 Jordan v. Farn.-worth 425 i\ Miller 189 V. Young 311 Jordy r. Llaxwell 371a Josslyn r. McCabe 127 Jouilliard v. (Jrcenman 345 Joy r. Midland Bank 1 Jubilee, The 330 Jnchter r. Boehn 438 .luliana, The 315 Jump r. Bernier 82 Juniata Bank r. Hale 453, 455 Junkin r. Uurpee 123 Jury V. Barker 446 Justice i\ Stonecipher 446 K. Kalm r. Smelting Co. 204 V. Wilhelm' 42a Kalamazoo Trust Co. v. Merrill 191 Kalem Co. r. Harper 536 Kane v. Bloodgood 79 V. Gott 147 Kansas City R. r. Anderson 113 Karnak, The 471 Karr r. Sehade 305 Karrick v. Hannaman 192 Karthans r. Ferrer 188 Kate Heron, The 305 Kater t-. Steinruck 430 Katz v. Miller 34 Kaufmann i'. Kaufmaiin 257 Kavanagh v. Bank of America 477a Kavanaugh r. Day 288 V. Mclntyre " 190 V. Royal League 299a Kaysing v. Huges 419 Kean f. Johnson 237, 245 Keckley i\ Coshocton Co. 547 Keel V. Larkin 367 Keeler v. Keeler 117 r. Salisbury 369 Keelev Co. v. Hargreaves 82 Keene^ r. Beard 465, 469 Keener v. Bank of United States 253 Keith V. Burrows 425 Kelley f. Brooklyn 445 V. Hemmingway 446 KeUogg V. Krauser 78 V. Page 345 V. Ricliards 366 v. Tompson 400 TABLE OF CASES. lix Kelly f. Brewing Co. V. Miller V. Terrell V. Thomas V. Williams SECTION 42b 38 25 299a 42a Kelsey r. Univ. Life Ins. Co. 548, 549 Kelton V. Leonard 188 Kemp V. Derrott 40 V. Westbrook 407, 411 Kempster v. Evans 75 Kendall v. Hamilton 157 V. Kendall 16 V. Robertson 279 V. United States 76, 77 Kendig v. Linn 267 v. Marble 280 Kennard r. Broii2;li 123 Kennebec, &c. iCR. Co. r. .Jar vis 489 Kennebec Co. v. Augusta Ins. (Si- Bank Co. 188 Kennebec R. R. Co. r. Kendall 228 Kennedy v. Boykin 166a V. Gibson V. Hazleton V. Parke V. Steamboat Co. Kennerson f. Tliames Co. Kenney v. Hannibal R. Kenny L\ Union R. Kent V. Quicksilver Co. 228. 239, 508 V. Walton 267 r. Wilson 370a Kentucky M. L. Ins. Co. r. -lenks 553 Keokuk, The 321, 391 Keplinger v. De Young 53'2 Kermac r. Howard 547 Kerr v. Kingsuury 122 V. Trego 245 Kerrick v. Stevens 184 Kershaw r. Kelsey 171 Kessner v. Trigg 281, 283 Ketchum V. Duncan 477 V. Foot 81 V. St. Louis 371 Keuper v. Mette's Heirs 170 Keyser v. Hitz 500 r. ^Morehead 166 Keystone Co. v. Adams 520 Kidd V. Boone 27, 360 Kidder v. Norris 371 Kidney r. Persons 407 Kiernan r. Miisic Co. 42a Kihlholz c. Wolf 271 Kilgore r. Dempsej-^ 270 V. Emmitt 289 Kilgore r. Lvlo 126a Kilholz r. Wolf 271 Kilpatrick r. Tolinson 147 350 r. 525 r. 80 V. 328 r. 334 V. 50 V. 279 Kingr SECTION Kimball, The 191, 392 Kimball v. Huntington 81 r. The Anna Kimball 367 r. Morrison 432 /•. Williams 257 Kimball Co. v. Polakow 132 Kimber v. Barber 505 Kimberlev v. Arms 191, 204 Kimbro v. Bullitt 1S2, 188, 191 Kiml)rougli v. Lukins 269 Kimmel v. Bittner 469 Kincaid's Appeal 132 King, Re 77 King V. Andrews 371 V. Capper 68 V. Central Ga. R. 82 V. Crowell 454 V. Doane 461 /■. Excise Com'rs 241 V. Green 398 V. Grocery Co. 82 r. Holmes 451 Pasmore 246 Paterson R. R. Co. 483, 510 Richards 381 State 289 Strong 563 Talbot 487 Kingman v. Perkins 78 Kingsbury ?;. Burrill 77 Kingsley v. Holbrook 53, 101, 103 Kinman v. Cannefax 367 Kinnersley v. ]\Iussen 357 Kinsell r. Billings 113 Kinsey r. Kinsey 82 Kinscy Co. v. Ilcckermann 126a Kinsley f. Robinson 455 Kinyon v. Stanton 469 Kirby Hall. The 328 Kirch r. Davies 123 Kirk V. Hodgson 191 Kirke r. Crystal 126a Kirkman r. Shawcross 384 Kirkpatrick r. Wherritt 278 Kirwan r. Latour 128 Kitchel V. Schenck 275 Kitchen, In re 62 Kitchens v. Jones 133 Kittrcdge v. Woods 121 Klein v. Life Ins. Co. 553 Kline r. McLain 27 Knapp, hi re 383 r. Alvord 383 r. jMorss 532 Kncass v. Schuvlkill Bank 520 Knecht v. Mut. l>ife Ins. Co. 549 Knevals v. Blauvelt 75 Knickerbocker r. Weitz 547 Ix TABLE OF CASES. SECTION" Knickerbocker Ins. Co. v. Dietz 553 Knickerbocker Life Ins. Co. Re 550 Knight V. Ellis 148 V. Gould 158 Knightlinger t: Egan 50 Knox V. Buffington 182 Knudson v. George 167« Koehler v. Black River, &c. Co. 225, 226, 229 Kohn V. Keeley 285 V. Sacramento R. 477a Kollock V. Jackson 385 Konig V. Bayard 449 Korn V. Birnn 27a Korns v. Shaffer 437 Kortright V. Buffalo Commercial Bank 496 Kosher v. Stuart 227 Kountz V. Kennedy 462 Kreisle V. Wilson 100 Kranert v. Simon 422 Krementz V. Cottle Co. 520 Kreuger Be 193 Kretzer v. Lorshbaugh 82 Kretzinger V. Emering 257 Kugler V. Taylor 81 Kuhn V. Graves 425 V. Powell 254 V. Savings Bank 465 Kuhner r. Butler 281 Kyle V. Laurens R. R. Co. 257 L. La Belle Iron Works v. Savings Bank 502 Lacam v. Mertins 361 Lacey v. Giboney 434 Lacliaise V. Marks 198, 199 Lacombe V. Wain 325 Lacustrine Fertilizer Co. V. Lake Guano Co. 53 Ladow V. Oklahoma Co. 1 Laflin v. Griffiths 427 Lafou f. Chinn 182 La Grange R. V. Rainey 243 Laidley v. Bright 446, 470 Lake V. Gibson 159 Lake Ontario R. R. Co. v. Mason 492, 494 Lamb v. Goodwin 366 V. Parkman 324 Lambard v. Pike 3'86 Lambert's Case 187 Lamberton v. Windom 401, 405, 409 Lampet's Case 138 Lancaster Bank v. Woodward 468 SECTION Lancaster Nat. Bank v. Taylor 445, 462 Landon v. Emmons 430 Lane v. Brainerd 492 V. Cotton 379 V. Dobyns 164 V. Hallum 383 V. King 109 V. Steward 455 Lane County v. Oregon 354, 373 Lanfear v. Blossom 471 Langdon v. Buel 434 V. Paul 368 Lange v. Kennedy 193 Langenberger l\ Kroeger 451 Langford v. Nat. Ins. Co. 546 Langley V. Berry 80 Langston, Ex parte 384 Langton v. Haynes 286 V. Horton 74 Langworthy r. Chadwick 139, 152 V. Little 425 Lanigan v. Bradley Co. 77 Lannes v. Courege 164 Lansden v. McCarthy 75 Lapp-Gifford v. Muscoy Co. 371a Lapham v. Norton 113, 123 Larkey Be 42a Larkin v. Misland 30 Lasher v. Carey 82 Lassell V. Reed 121 Lassman v. Jaeobson 271 Latham V. United States 345 Latta r. Kilbourn 184, 191 r. Miller 106 Laud V. Smith 166a Laughlin V. Fairbanks 80 Laughlin i: O'Reily 163 Laughran v. Ross 127 Lavenson v. Soap Co. 124, 128a Laverone v. Mangianti 50 Law Guarantee Society 554 Lawler V. Vette 281 Lawless v. Hackett 357 Lawrason v. Mason 473 Lawrence V. Cowles 266 f. Evarts 419, 421 V. Fletcher 221 V. Goodstein 38 V. Martin 76 V. McCalmont 401, 405. 409 V. Schmidt 469 V. Tucker 422 Laws v. Rand 46G Lawton v. Lawton 119, 120, 121, 122. 127 V. Salmon 120, 121 Lays V. Hurley 191 TABLE OF CASES. Ixi SECTIOX SECTIOX Lazarus v. Andrade 421 Levy V. Lock 198 Leach v. Cowan 370a V. Reich 435 V. Kimball 416, 430 V. Walker 185 Leader v. Homewood 127 Lewenberg v. Berud 131 Leahi v. Dugdale 81 Lewey's Island R. R. Co. v. Bol- Leake, &c. Orphan House v. Law- rence 257 Leather Goods Co. v. Eastern S. S. Co. 320 Leathers v. Blessin 334 V. Carr 81 Leavitt v. De Lanny 275 V. Maykell 38 V. Morrow 369 V. Putnam 457 Le Breton v. Stanley Co. 82 Leazure v. Hillegas 232 Lee V. Baldwin 408 V. Davis 193 V. Fellowes 278 V. Fisk 508 V, Hill 254 V. Kilburn 417 V. Oppenheimer 369 f. Risdon 100, 105. 127, 129 r. Smith 26 Leeds v. Townsend 173a Leeds Baking Co., In re 453, 454 Leef V. Go Id win 371 Leese v. Martin 382 Le Fe^Te v. Castaguis 173 Legal Tender Cases 337, 341, 345, 350 Legault V. Malader 49 Legg r. Asgill 352 V. Evans 376 Leggett ('. Avery 529 Leggott V. Barrett 185 Lehigh Bridge Co. v. Lehigh Coal Co. 242 Lehman r. Jones 455 Lehmever v. Moses 42a Twitch "r. Wells 499 Leiter r. Poindexter 446 Leland v. Hayden 143 V. Sprague 423 Lemmon v. Whitman 267 Lemont r. Lord 320 Leon V. Galceran 315 Leonard v. Farrington 82 V. Springer 82 r. Wildes 264 Ije Rov V. Globe Ins. Co. 510 t'.' Johnson 179,182,188 r. Tatham 520 Lethbridge r. Adams 196, 202 Tossing r. Grimland 417 Levi, The 316 Levitt V. Brendell 425 ton 516 Lewis V. Berry 77 V. Commissioners 477 V. Gehlew 367 V. Gehlen 367 V. Hoblitzell 81 V. Jones 121 V. Kinney 209 V. McKee 321, 471 V. Mott 404, 407 V. Ocean Co. 127 V. Palmer 426, 433 V. Payne 101 V. Phoenix Life Ins. Co. 546 V. Rosier 53 Lexington Brewing Co. V. Hamon 82 Libby v. Hopkins 371 Liberty Savings Bank V. Campbell 189 Lieey r. Licey 77 Lickbarrow v. Mason 3'78, 383, 458. 470, 471 Liddy v. Kennedy 40 Life Ins. Co. v. Murtagh 540 V. Pike 545 Liford's Case 115 Liggett Co. Re 397 Lill V. Egan 188 T. Gleason 456 Lilley r. Fifty Associates 28 V. Life Ins. Co. 258 Lilly «. Hays 75 Linahan v. Barr 113, 121 Lincoln v. Claflin 258 V. Fitch 244 Lindsay v. Hill 288 V. Parrott 457 Lines v. Atlantic Tran.sport Co. 320 Line weaver r. Slagle 198, 200 Linick r. Nutting 1 Linnehan V. Sampson 50 Linton r. Wilson 113 L'lnvincible 330 Lionborger r. Rouse 350 Lippincott's E.state 16 Lippitt I'. Thames Co. 457 Lipsky V. Borgmann 113 LipsoJm r. Goldstein 439 Little r. Hall 539 V. Harrington 164 V. Phn-nix Bank 465, 466 Littk'ficM r. Perry 528 /". I'inkham 74 Little Rock V. Bank 477 Ixii TABLE OF CASES. SECTION Liverpool, The 3'30 Liverpool Ins. Co. r. Massachu- setts 204, 221 Liverpool Marine Credit Co. v. Hunter 298, 299 Livingston v. Harris 278 V. Littell 458 V. Ralli 183 V. Tremper 211 Lloyd V. Ashby 177 V. Mason 363 I^bdell V. Stowell 166 Lobsitz V. Lissbeger 199 Lochlan v. Reynolds 146 Loch Rannoch, The 313 Locke V. Lewis 187, 188 V. Palmer 417, 437 V. Stearns 190 Lock-port, The 320 Lockwood r. Mitchell 271, 284 V. Mutual Life Ins. Co. 547 V. Slevin 426 V. U. S. Steel Co. 482 Lo€W V. Mclnerney 281 Logan V. McNaugher 202 Logs of Mahogany 323 Lohman r. N. Y. R. 486 Lomas v. Wright 361 London Loan, &c. Co. i\ Drake 129, 432 London, &c. Railway Co., In re 486 London Realty Co. v. IMordan 286 Long t\ Long 437 V. Symonds 499 Long Dock Co. v. Mallery 430 Longbottom v. Berry 113, 124 Longley v. Little 513 Longstaff v. Meagoe 124 Longworth V. Higham 366 Longyear r. Hardman 482 Lonsdale i*. Lafayette Bank 473 Lonsdale's Estate 80 Look V. Comstock 427 Loom Co. V. Higgins 526 Loomis V. Eagle Life, &c. Ins. Co. 546, 555 v. Knox 260 V. Loomis 78, 79 V. Marshall 173, 178 V. O'Neal 161 V. Wainwright 372 Tx)osen v. Schissler 176 Lord V. Brooks 42f, 143 r. Dall 544, 546, 550 Lord Bolton v. Tomlin 27 Lord Dungannon v. Smith 146 Lord Petre v. Heneage 96 Loring v. Salisbury Mills 500 SECTION Lormer v. Allyn 421 Lougher V. Williams 35 Louisiana, The 328 Love V. Blair 420 V. Howard 31 Lovell V. Davis 326 V. Minot 487 Lovett V. Brown 387 Low V. Mumford 211 V. Pew 76 V. Prichard 274, , 278 Lowe V. Milkr 165 V. R. R. Co. 490 V. Schuyler 259, , 263 V. Warbington 32 Lowndes v. City Nat. Bank 255 Loval, The 214 Love V. Payne 193 Lovell V. Boston & Me. R. 299a Lucas V. Bank of Darien 188 V. Pitney 238 V. Spencer 280 Ludford V. Barber 38 Ludlow V. Cooper 172 Ludwig V. Huntzinger 255 Lulu, The 312, 391a Lum V. Robertson 243 , 244 Lunn V. Thornton 421 Lushington v. Sewell 125 Lusk V. Smith 257 Luthy V. Ream 509a Luxton V. Bridge Co. 219 Lyde v. Russell 122 , 127 Lyden v. Spohn-Patrick Co. 173a Lyell V. Walbach 370a Lykens, &c. Co. v. Dock 53 Lyle V. Palmer 113 Lyman V. Boston & Maine R. 166 Lynch v. Dalzell 77. 558 Lynch v. Roller Mills 100 Lynde v. Rowe 124 Lyon V. Byington 258 V. Jones 437 V. Railway Pass. Ass. Co. 556 V. Reed 38 V. Tweddell 192 Lvsaght V. Bryant 454 Lyth V. Ault 193, 365, 366 M. Maas r. Chatfield 269 V. Kansas R. 477 Machine Co. v. Murphy 532 Mackav v. N. Y., N. H. & H. R. 245 V. Roberts 328 Mackie v. Davis 81 Mackintosh v. Trotter 129 TABLE OF CASES. Ixiii SECTION Mackley's Case 485 Mackreth v. Symmons 389 Macomber v. Grape Juice Co. 202 r. Parker 395, 400, 417 Macon Co. r. Richter 486 V. Shores 477 Macungie Bank f. Hottenstein 279 Maddin v. Edmondson 368 Maddox v. Maddox 151 Madison County Bank r. Could 198, 199 JMadison, &c. R. R. Co. v. WTiite- neck 219 Maekotter v. Maekotter 166 Magee r. Catching 417 Maggie Hammond, The 391 Maguire v. Park 124 Mahony v. Ashlin 444 Majot's Estate 156 Makin v. Watkinson 31 r. Wilkinson 30 Malcom f. Lovenilge 423 Maiden Bank v. Baldwin 451 Mallett V. Stone 268 Ma II in v. Wenham 74 Mallory v. Oil Works 171 V. Travellers' Ins. Co. 556 Maloney v. Bruce 198 Maltbie r. Olds 23 f. Northwestern, &c. R. R. Co. 491 Mandeville v. Mandeville 173 r. Welch 77, 466 !Mandlebaum v. McDonell 147 Manfield v. Maitland 319 Manger v. Shipman 50 Mangles v. Dixon 81, 547 Manker v. Tough 167a Mann v. Mann 352 Manning r. Gasharie 172, 202 r. Hollenbeck 385 i;. International Co. 334 V. :Monaghan 430, 431 V. Tvler 281 V. Wells 379 Manistee Watch Co. Re ^lla Manitoba, The 328 Manning's Case 138 Manse r. Hossington 370a Mansfield v. biackburne 122 Manufacturing Co. v. Corbin 529 Manwaring r. .Jenison 124a Maples V. Millon 100 Mapps r. Sharpe 283 Marble Co. v. Ripley 191 V. Spafford 194 Marcardier v. Chesapeake Ins. Co. 323 SECTION March v. Eastern R. R. Co. 510 r. Pigot 544 Marconi Wireless Tel. Co. r. Simon 532 Marfield V. Goodhue 387 Maria Jane, The 329 Maria Martin, The 328 Marie, The 330 Marie Palmer, The 214 Marine v. Lyon 262 Marine Bank v. Fiske 395 V. Wright 471 Mariners' Bank v. Sewall 244 Marine Re 473 ]Marion. &c. R. R. Co. v. Hodge 448 Market Nat. Bank v. Raspberry 82 Markham v. Jandon 409, 505 Marks v. ^Mdiehee 267, 283 Marlborough Co. r. Smith 225 Marlett f. Jaekman 194 Marquet v. Mina, Ins. Co. 546 Marseilles Co. v. Aldrich 172 Marsh v. Fulton County 477 V. Hand 164 V. Home 401 V. Martindale 266 V. Nichols 523, 527, 534 V. \V"oodbury 425 Marshall V. Blackshire 50 V. Blew 141 r. Johnson 183 Marshall County V. Cook 477 Martin r. Gray 176, 177 V. Johnson 288 V. Margham 147 V. Martin Co. 245a V. Reid 400 Marvin r. Feeter 281 Marvine r. Hymers 266, 269 Mary, The 330 Maryland Casualty Co. v. Grace 547 V. Omaha Co. 259 Maryland Fire Ins. Co. v. Dal- rvmple 409 Maryland Trust Co. v. Bank 232 Marzetti v. Williams 466 Mason v. Connell 170 r. Eldred 188 V. Fenn 127 V. Pcambic Co. 244, 517a V. Searles 284 t'. The Blaireau 329 Mass. V. Western Un. Tel. Co. 258 Mass. Ins. Co. v. Duncan 556 Masten r. Cummings 437 Mather r. Eraser 113, 117, 119, 124 r. lyord Maidstone 462 Mathews r. Livingston 42b Ixiv TABLE OF CASES. SECTION Mathewson r. Strafford Bank 455 Matlock V. Straughn 425 Matthews v. Hanson 126a t\ Haydon 451 Matthias v. Cook 289 Mattingly v. Darwin 441 Maiiison v. Farnham 194 Maugham v. Sharpe 416 Maurel v. Smith 536 Maxey V. Knight 253 Maxfield v. Jones 82 Maxted V. Paine 505 Maxwell v. Willett 269 May V. Babeock 321 V. Breunig 42a V. Campbell 269 V. Parker 164 Maybee v. Crozier 281 Mayhew Ex parte 501 Mayn v. Mayn 157 Maynard V. Shaw 414 Mayor Re 31 V. Brooklyn Fire Ins. Co. 32 V. Soulier 433 MacArthur Bros. Co. v. Kerr 554 MacDonald v. ^Etna Indemnity Co. 554 MacRackan v. Bank of Columbus 280 McAllister t\ Jerman 285 V. New Eng. Ins. Co. 553 V. N. E. Mut. Life Ins. Co. 553 MeAndrews v. Thatcher 332 McArthur v. bchenck 278 V. Sears 321 MeAuliffe v. Mann 129 McAvity v. Lincoln Co. 81 M'Bride v. Mar. Ins. Co. 319 McCaffrey v. Woodin 100, 395, 421 McCallister r. Sappingfield 49 V. Shannondale Co. 228 McCammon v. Cooper 20 McCartee r. Orphan Asylum So- ciety 231, 234 McCarthy u. Goold 396 V. Grace 427 McCarver i\ Griffin 421 McCaskey Co. v. Mantz 520 MeClain v. Ortmayer 520, 523, 525, 532 McClineh v. Sturgis 218 MeClintock's Appeal 253 McClure v. Hill 434 V. Oxford 477 McClurg t\ Kingsland 519,523 McCombie v. Davies 385, 398 McConnell v. Blood 113, 124 McCord V. Cooper 425 V. Ohio E. R. Co. 493 McCormick v. Gray 191 SECTION McCowen v. Barnett 458 V. Pew 254 McCowell V. Arkansas Co. 225 McCoy V. Hock 380 McCracken v. Hall 113 McCrary i: Slaughter 172, 185, 188 McCue Re 551 M'CuUooh V. State of Maryland 219,350 McCullough V. Randall 20 McCully V. Pittsburgh R. R. Co. 490 McCutchen v. Rice 448 McDaniel l\ Barnes 371 McDaniels v. Flower Co. 509 V. Lapham 366 V. Robinson 379 McDearman i\ McClure 166 McDermot V. Taft 49 McDonald v. Beer 268 McFadden v. Allen 124 V. Leeka 202 V. Palmer 285 V. Turner 417 McFarlane v. Robertson 546 McFeron v. Doyens 126o McGahey v. Virginia 478 McGarvey v. Prince 395 McGhee V. Cox 34 McGilton V. Stockyards 50 McGilvery V. Capen 323, 324 McGonnell V. Railways Co. 254 McGorrish v. Dwyer 124 McGowan v. McGowan 185 McGregor v. Brown 101 M'Gruder v. Bank of Washington 451,455 McGuire v. Benoit 430 V. Bidwell 369 MoHenry r. Jewett 509 Mcintosh r. Lytle 463 Mclntyre Re 498 McKeage v. Hanover Fire Ins. Co. 113,115,122 McKee v. Buford 188 V. Judd 75 McKeithen v. Pratt 161 M'Kenzie V. Nevins 382 McKinney l\ Alvis 81 McKinster V. Babeock 422 McKleroy v. Southern Bank 462 McKniglit r. Ratcliffe 190 McLae v. Sutherland 475 McLarren v. Thompson 425 McLaughlin v. Sauve 253 McLean v. Bovee 106 McLean v. Fleming 321, 391a McLemore v. Powell 460 TABLE OF CASES. Ixv SECTION McMahon r. Davidson 213 V. New York, &c. Co. 254 McMail V. Michaels 414 McManus v. Peerless Co. 548 McMillan i\ Maysville, &c. R. R. Co. 490 V. Solomon 41 V. Whitley 167a McMurray v. Moran 477 McNally v. Connolly 129 McNeal r. Emerson 434 V. Leonard 285 McNeil V. Tenth Nat. Bank 499 McNiel, Ex parte 316 McOwen v. Zimmerman 126a McPartland v. Read 427 McPherson i\ Cox 324 McPike V. McPherson 77 McQueen v. Turner 166a McQuesney v. Heister 259 McRea V. Central Nat. Bank 114 McTaggart V. Rose 418 McWilliams v. Webb 77 Meacher t'. Fort 449 Meads v. Earle 82 V. Meads 103 Meagher r. Fogarty 173a Meagher i. Reed 184 Mechanics' Bank r. Harter 468 V. Merchants^ Bank 501 V. New York R. R. Co. 68. 482 v. N. Y. & N. H. R. 485, 499 Mechanics' Savings Bank v. Meri- den Agency Co. 232 Medill r. Collier 515 Medler r. Childers 82 Meehan v. Valentine 178 Meek v. Smith 241 Mehan r. Thompson 392 Meibus V. Dodge 50 Meigs's Appeal 113,116 Meissncr r. Brun 324 Meixsell v. Williamson 424 Melledge r. Boston Iron Co. 367 Melton V. Fullerton Co. V26a, 127 Melting Co. v. Reese 202 Memphis V. Brown 366 Menendez V. Holt 193 Menkins r. Lightnor 171 Mensinger r. O'Hara 52 Menzies v. Dodd 427 Mephams V. Biessel 311 Mercantile, &c. Bank V. Gladstone 321 Mercantile Co. V. Lance 263 V. Winer 126a Mercer v. Tinsley 434 Mercer County v. Hacket 476 SECTIOX Merchants' Nat. Bank r. Beutel 367 Merchants' Bank r. Cook 216, 509, 511 i\ Livingston 499 V. Spicer 445 V. State Bank 85, 227, 467 Merchants' Nat. Bank r. Nat. Eagle Bank 462 Merrell v. Garver 126a V. Tice 538 Merriam v. Wolcott 456 Merrick r. Bank of Metropolis 224 Merrill v. Bartlett 206,209 V. Emery 140 V. Englesby 81 V. Frame 30 V. Hodgkins 18 V. Mason 165 V. Smith 191 V. Myman 124 Merrimae Mining Co. v. Levy 517 Merriman v. Ward 371 Merrit r. Pollys 193 Merritt i. Judd 127 I'. Meisenheimer 370a V. Walsh 206 Merry v. Hoopes 185 Merryman v. Bourne 30 Merwin v. Shailer 212 Mesiboosky Re 271 Metealf v. Kincaid 74 V. Pilcher 269 Metcalfe v. Fosdick 417 Metropolitan Bank r. Jones 467 r. Sirret 198 V. Van Dyek 345 Metrop. Life Ins. Co. r. Morrow 82 Metropolitan Ry. v. Chicago 227 Meyer v. Hibsher 451 t'. Muscatine 269, 477 Meygatt l\ Schauffcr Flaum Co. 520 Michigan Bank v. Eidred 188, 456 Michigan Ins. Co. r. Leavenworth 73, 446 Middlebrook v. Corwin 121 Middleniore r. Goodale 30 Middlesex, &.c. r. Davis 445 Midland G. W. R. f. Gordon 508 Miers v. Fuller Co. 82 Mifflin r. Smith 179 Migcl V. Heeler 167a Mileham^s Trust, In re 153 Miles r. Conn. M. L. Ins. Co. 548 Milholen r. Meyer 271 Mill r. Baer's Execntors 41 Milldam Foundrj' v. Hovcv 3.'>4 Miller r. Baker ' 100. 127 r. Bates 274 Ixvi TABLE OF CASES. SECTION Jliller V. Brass Co. 529 V. Cook 266 V. Eagle Life & Health Ins. Co. 555 V. Eagle Man. Co. 521 V. Hoyle 79 V. Hull 267 V. Marston 380 V. Pancoaat 430 V. Porter 233 V. Race 475 V. Simpson 173o V. Tiffany 288 V. United States 89 V. Whitson 425 Milligau ?". Drury 113 Milliken v. Brown 365 V. Dehon 417 Mills V. Bank of United States 453 V. Buenos Ay res Ry. 225 V. Gleason 477 V. Jefferson 256 V. Shirley 379 Miln V. Spinola 212 Milnes v. Branch 34 Milton V. Mosher 188,207,418 Milwaukee Co. v. Avery 520 Milwaukee R. R. Co. v. Field 490 Milwaukee Store r. Katz 371 Miner v. National Co. 421 V. Paris Bank 271 Miners' Bank v. Burriss 82 Miner Re 16 Minneapolis Co. v. Betcher 407 Minneapolis R. v. Beckwith 242 Minnesota Co. v. St. Paul Co. 56, 113 Minnetonka Co. v. Brick Co. 82 Minor t\ Mechanics' Bank 231 Minot V. Paine 143 V. Russ 467 V. Sawyer 285 V. Thompson 140 Minshall v. Lloyd 112 Mishler v. Commonwealth 358 Missio V. Williams 49 Mississippi R. R. Co. r. Harris 490 Mitchell V. Black 427 l\ Burlington 477 V.Chambers 206,214,311 V. Doggett 267.277,286,289 V. Roberts 411a V. Tarbutt 211 v. Union Life Ins. Co. 546 V. Winslow 421 Mitch eson v. Oliver 212 Moakley v. Riggs 151 Moar r. Wright 81 SECTION Mobile R. V. Tennessee 510 Moehring v. Mitchell 555 Moeser v. Schneider 82 Moffat V. Farquhar.son 209 V. Strong 139 V. Beeler 427 Mogart V. Smouse 170 Mohawk, The 306 Mohaiwk Bank V. Corey 459 Moline i\ Brewing Co. 34, 36 Mollwo V. Wards 181 Molyneaux V. Collier 366 Monarch Laundry Co. v. West- brook 4 Monast v. Manhattan Ins. Co. 548, 553 Monckton v. Gramophone Co. 540 Monnot V. Ibert 422 Montague V. Dent 122 V. Lobdell 81 Montany V. Pock 417 Montenegro Co. V. Bueris 414 Montgomery v. Chase 421 V. Lumber Co. 100 V. Wharton 208 Monthly Installment Co. r. Skellett 431 Monticello V. Grant 369 Monument National Bank v. Globe Works 238 Moody V. Brown 307 V. Ellerbe 433 V. Kyle 77 Moon V. Jennings 166 Moore v. Atchison R. 227 V. Bank of Commerce 501 V. Davis 173 V. Downey 542 V. Gilmore 241o V. Lowrey 77,258 V. Marsh 533 V. Metropolitan Nat. Bank 78 V. Murdock 430 V. Simonds 88,206,305 V. Valentine 123 Moore Re 138, 151 Moore's Estate Re 194 Moors V. Washburn 260, 397, 410 l\ Wyman 400 Moran v. Abbey 371 V. Commissioners 477 Moran. The 320 Morel V. Miss. Life Ins. Co. 556 Mores v. Conham 403 Moreton v. Milne 297,298 Morey v. Hoyt 127 Morgan v. Abergavenioy 97 V. Bank of N. Y. 470 TABLE OF CASES. Ixvii SECTION Morgan r. Britten 157 V. Congdon 380,381 V. Dod 417 V. Louisiana 237 V. Morgan 140 V. Stnrtiiers 488 [M^orgcntliau i'. Ehrich 426 Jlorison v. Moat 64 Morley Co. v. Lancaster 532 Morley r. Bird 157 Morning Star, The 329 Morrell V. Trenton Mut. Life Ins. Co. 546 Morrell's Appeal 487 Morriel v. Daggett 26 Morrill v. Saiiford 426 Morris v. Burrows 471 V. Richards 452 Morris Canal v. Fisher 85, 476 Morris Canal Co. v. Lewis 395 Morris's Appeal 124 Morrison v. Bailey 465 V. Berry 113, 119 V. Muspratt 549 Morrow v. Brenizet 63 V. Turney 418,426 V. Williams 139 Morse v. Brainerd 38 V. Crofoot 278 V. Powers 422,427 Mors Le Blanch v. Wilson 385 Mortgage Co. v. Aughe 285 Morton v. Naylor 77 V. Perry 352 V. Pinckney 35 V. Thurber 271 Moscowitz V. Sassulsky 173o Moses V. Loan Association 278 V. Traveller's Ins. Co. 559b Moss t>. Averill 237 V. Gilmore 34 V. Harpeth Academy 239 V. Oakley 513 Moss's Appeal 143 Mote V. Chicago R. 257 Mott V. Palmer 113,115 V. Ruckman 305,323 Moule r. Carrett 34 Mount Pleasant v. Hobart 3 Mourne Nat. Bank V. Catlin 369 Mowry v. Homd Ins. Co. 546, 549, 554 V. Todd 77 V. White 421 V. Whitney 520.531 V. Wood 408 Moylan v. Moylan 255 Wt. Olivet Cemetery r. ShuWrt 81 SECTION Mueller v. Provo 422 V. Wiebracht 371 Muilraan r. D'Eguino 446 Muldon V. Whitlock 214 Mulhall V. Quinn 74 Mullaly r. People 50 Mullen V. Morris 409 Muller V. Dows 245 V. Kling 82 V. Philadelphia 286 Mil hey Co. r. McKinney 42a Mum ford r. American, &c. Ins. Co. 274 V. Brown 30 V. Cantv 298 V. Nicoil 206,209 Mumnia V. Potomac Co. 242 Munn V. Baldwin 453 V. Illinois 216 Murdock v. Chenango, &c. Ins. Co. 164 v. Columbus Ins. Co. 417 V. Finnev 78 r. Giffofd 113 Murphy, In re 498 V. Adams 390 V. Manning 50 V. Mut. Benefit Life Ins. Co. 549 V. Sehwaner 27a V. Stewart 188 Murray v. Buell 75 V. Detroit Co. 533 V. Graham 462 V. Judson 283 V. Lardner 85, 476 V. Life Ins. Co. 548 V. Pocatello 520 V. Richards 184 V. \\arner 471 Murrell r. Murrell 172, 191 Murrell & Co. v. Edwards 452 Murtagh v. Costello 186 i\ Thompson 256 Mu&ier v. Trumpbour 173 Musselman v. Oakes 445 Mussey v. Eagle Banik 467 Musson V. Lake 451 Mut. Ass'n t\ Barry 556 V. TTamlin 553 Mutual Ins. Co. v. Board Corp. 546 Mutual Life Ins. Co. v. Allen 547 p. Hillyard 171 V. Terry 551 V. Watson 82 Mut. Protection Ins. Co. r. Hani'- ilton 547 Myers ;;. Davi.s 81 V. Kevatone Mut. Life Ins. Co. 552 r. South Fi^ther, Ac. Co. 81 Ixviii TAB1.E OF CASES. SECTION My«rs V. St. Helen's R. R. Co. 236 V. Willis 212 Mygatt V. Sohaflfer 533 N. Nally V. Home Ins. Co. 559ia Nash V. Ely 427 i\ Nash 69 Nassau Hotel V. Barnett 82 Nathaniel Hooper, The 319, 323 Nat. Bank v. Bangs 471 V. Colby 244 V. First National Bank 462 V. Olobe Works 238 V. Hartford R. 476,477,479 V. Landon 202 t\ Levy 351,367 V. Lewis 266, 267 V. McKinley 434 V. Merchants' Bank 471 V. Newell 482 V. Norton 193 V. Place 278 V. Sprague 425 V. Thompson 271 V. Wood 454 National Building Ass'n i\ Knab 27a National Exchange Bank V. Granite Co. 27a National Hat Co. v. Hedden 520 National Ins. Co. v. Fleming 556 National Lancers v. Lovering 257 National Park Bank V. Billings 76 Nat. Pemberton Bank v. Lougee 113 National Soldiers' Home r. Par- rish 254 National Tel. News Co. v. West- ern Un. Tel. Co. 535 Nat. Union Fire Co. r. Denver R. 82 Natural Autoforce Co. v. Winslow 121 Natural Ventilator Co. V. Wins- low 126a Naylor v. Collinge 122 Neal V. Bainbridge 31 Neal V. Freeman 258 V. Jefferson 42a Neale v. Janney 501 Neary v. Cahill 163 Needham v. Hill 163, 165 Neff V. Horner 476 Neilson v. Moss End Co. 192 Nelson v. Eaton 239 V. First Nat. Bank 425 V. Hurford 267 V. Woodruff 321 Neptune, The 317 SECTION Nesbit V. Riverside 477 Nesham V. Selby 25 Nesone V. City Nat. Bank 299a Nevada, The 328 Nevan v. Roup 399 Nevill v. Hancock 77 v. Snelling 265 Nevitt V. Bank of Port Gibson 244 Newberry v. Colvin 323 Newboldr. Wriglit 398 Newbury r. Dow 132 Newburyport v. Fidelity Ins. Co. 259 Newburyport Bank r. Brookline 509 Newby v. Hill 425 New Castle Co. v. Ward 126« Newconib i' Raynor 460 Newell V. Nixon 212 New England Co. r. Rockport Co. 81 New England Ins. Co. f. Brig Sarah Ann 307 N. E. Mut. Life Ins. Co. v. Has- brook 553 New England Trust Co. v. Abbott 486 V. Eaton 143 New Glen wood Co. Re 471 Newhall v. Clark 449 New Haven Trust Co. V. Camp 299a N. H. Central R. R. Co. i\ John- son 494, 517 New Jersey, &c. Co. r. Turner 281 New Jersey v. Cruse 126a Newman V. Irwin 78 i\ Kershaw 279,281 V. Newman 166 V. Walters 329 r. Williams 275 New Orleans v. Globe Ins. Co. 124 V. Houston 242 Newsome r. Davis 407, 409 Newsum v. Hoffman 425 Newton i\ Gordon 50 V. Howe 163 r. Mut. Ben. Life Ins. Co. 551 N. Y. Dry Dock Co. v. American, &c. Co.' 271 N. Y. Life Ins. Co. V. Flack 547, 549 V. Stathamj 553 New York, &c. R. v. Nickals 510 New York Times Co. r. Star Co. 536 New York Re 113 Niagara County Bank v. Baker 272 Niagara Falls Co. v. Sehermer- horn 126a Nichoff i\ Dudley 173 Nicholaus v. Thielges 173 Nichells V. Buell 204 Nichols r. Bellows 284 TABLE OF CASES. Ixix SECTION Nichols V. Buell 170 V. Holliday 379 V. Levins 269 V. Webster 434 Nicholson v. Caress 157 V. Chapman 381 V. Moog 193 Nickerson r. Babcoek 274 Nicolson Pavement Co. V. Jenkins 528 Nierosi v. Walker 267 Nightingale r. Burrell 149 V. State Mut. Life Ins. Co. 550 Niles f. Ludlow Co. 508, 510 Nixon V. Kiddy 371a Noble r. Beeman Co. 446 V. Walker 269 Nonantum Co. V. Webb • 75 Nonotuck Co. v. Adams Ex. Co. 299a Noonan t\ McNab 183 Norcum v. Lum 278 Norfolk R. V. Read 75 Norman v. Thoniipson 366 Norment r. Wittmann 173a Norris v. Fadden 42a V. Smithville 242 V. Thomson 562 North Am. Ins. Co. V. Burroughs 556 North Bank i: Abbot 451 North Hempstead v. Hempstead 245 North Penn. R. R. Co. r. Adams 256 Northern Bank v. Day 510 Northern Central R. Co. f. Canton Co. 113 Northern Trust Co. v. Day 481 North Ferry Co., Matter of 509 Nortlirop r. Newton Turnpike Co. 495 Northup r. Railway Pass. Ass. Co. 556 North Star, The 328 Northwestern Ins. Co. V. Adams 545 V. Wright 82 Northwestern Lumber Co. r. Parker 126a Norton r. Ladd 50 V. Phoenix Life Ins. Co. 553 Notman r. Anchor Assurance Co. 550 Noyes r. Brown 77 Nuckols Re 299a Nudd V. Burrows 383 Nussbaum v. Waterman 419 Nye V. King 256 N. Y. Ins. Co. V. Hendren 551 N. Y., N. H. & H. R. V. Schuyler 485 N. Y. & P. R. Co. p. /Etna Ins. Co. 558 O. SECTION Oakes v. Moore 376,378,380,381 i\ Turquand 515 Oakland Cemetery Co. r. Ban- croft 115 Oakland Cotton Co. r. Jennings 214 Oak Pits Colliery Re 225 Oates i\ Frith 28 Obey, Tlie 328 O'Brien v. Illinois Surety Co. 20 Ocean Bank v. Fant 451 Ocean Ins. Co. r. Rider 383 Oehsi V. Tilton 4, 112, 126a Oohler v. Hamhurg-Am. Co. 334 O'Connor v. Keely 34 i\ Mechanics' Bank 465 Odell V. Odell 146,233 Odenheimer v. Douglass 77 Odden v. Jamison 491 O'Donnell v. Burroughs 123, 124o V. Hitchcock 113 Ogden. t*. Saunders 256 Ogilvie v. Knox Ins. Co. 491 Ogle r. Eagle Ins. Co. 55 Oglesby v. Attrill 517 O'Hanion v. Grubb 426 Ohio Life Ins. Co. v. Ross 81 Ohio, &c. R. R. Co. V. Wheeler 221, 222 Ohrloff V. Briscall 326 O'Keefe v. Allen 74 Okie V. Spencer 460 Olcott V. Tioga R. 224, 238, 437 Old Dominion Co. v. Bigelow 299a, 492 Oldfield V. Attorney-General 146 Olds V. Cummingsi 77 Oleson V. Fader 426 Oliphant t\ Mathews 179 Olive V. Martell 166 V. Smith 382 Oliver v. Bank of Tennessee 455 V. Eaton 428 V. Loydon 38 Olmstead v. Niles 101 Olson r. Idora Co. 393a Omaha Hotel Co. r. Wade 281 O'Malley r. Heman Co. 1 Ombony v. Jones 122 (VNeil r. Armstrong 315 V. Nat. Bank 509 O'Neill r. Concral Film Co. 536 i\ Whigliam 409 Ontario Bank r. Ilanlon 471 Ontario Bank r. Lightbody 351 Oppenheim v. Russell 384 Ordway v. Colcord 258 Orear v. McDonald 455 Ixx TABLE OF CASES. SECTION Oreffon-Wasli. R. v. East Oregon Co. 34 O'Reilly v. Guardian Ins. Co. 555 V. Morse 526,529 Orford Iron Co. f. Spradley 238, 239 Oridge v. Sherborne 452 Oriental Bank V. Blake 455 Orlando, The 307 Orleans v. Phoebus 208 Ormerod v. Tate 383 Orpheus, The 328 Orr V. Union Bank 470, 473 Orrok v. Commonwealth Ins. Co. 332 Orth V. Anderson 452 Osborit V. Morgan 150 V. Schenck 161, 165 Osborne v. Fridricli 278 V. Morgan 439 Osborne Re 143, 517o Osgood i\ Pearsons 445 V. Pollard 437 O'Shields v. Union Foundry 510 Otis V. Beckwith 547 t\ Gardner 497 Otis Co. V. Interborough Co. 520 Otto v. Durege 275 Ottumwa Co. v. Christy Co. 526 Ottumwa Co. v. Hawley 124 Ottumwa Woolen Mill v.. Hawley 124 Ouderkirk p. Central Nat. Bank 401 Ouston V. Hebden 209 Outcalt t'. D-urling 386 Overend, Ex parte 238 V. Oriental Co. 460 Overman v. Hoboken City Bank 468 Overseers of Poor v. Sears 231,488,509 Overton v. WilUston 129 Oviatt V. Sage 207 Owens V. Miller 80 V. Reed 32 Oxnard v. Blake 424,425 Pacific Improvement Co. r. Jones 27a Pack V. Thomas 466 Packard v. Dun.smore 87 V. Kingman 440 Page V. Fowler 106 V. Heineberg 231,233 V. Ordway 422 V. Williams 263 Paige V. Banks 537, 540 Pairn^ V. Ivester 299 r. Mason 425 V. Parbhurst 528 SECTION Painesville R. R. Co. v. King 510 Painter V. Fidelity Co. 52 Palm V. Fancher 263 Palmer v. Elliot 178 V. Forbes 113 V. Hoi ford 146 V. Merrill 77,547 V. Palmer 82 V. Phoenix Life Ins. Co. 5o3 V. Ridge Mining Co. 516 V. Stockwell 258 V. Williams 372 V. Yager 366 Palmerton ?'. Huxford 366 Palms r. Palms 146 Palmtag v. Doutrick 400 Palmyra r. Morton 228 Paper-bag Cases 528,530 Pardee r. Fish 473 Paris i". Paris 143 Parish i\ Wheeler 439 Park V. Baker 115 Parke v. Foster 253 Parker r. Brancker 387 V. Canfield 178, 182 V. Cousins 269,365 V. Elder 164 V. Fergus 178 V. Green 371 V. Kelly 81 V. Macomber 193 V. Maxwell 274 V. Morrison 424 V. Palmer 425 V. Parker 366 Parkhurst v. Almy 499 Parks V. Booth 533 V. Hall 385 V. Innes 78 Parmalee v. Cameron 80 Parrott v. Byers 497 Parry v. The Peggy 315 Par-shall v. Eggart 400,417,427 Parsons v. Camp 113, 121 V. Copeland 126 V. Hughes 430 V. Jackson 477 Parsons Savings Bank v. Sar- gent 419 Parton V. Prang 64, 535 Partridge v. Davis 456 V. Swazev 418,419,422 V. Wells 186 Paschal, In re 383 Pasmore v. North 446 Pass V. McRea 77 TABLE OF CASES. Ixxi SECTIOW Passenger Railway Co. r. Phila- delphia 257 Patapsco, The 391a Patch V. Wheatlflnd 207 Pate V. Brown 476 Patent File Co. & Bank Co. AV- 236 Paterson v. Powell 546 Paton r. Coit 458 V. Sheppard 145 Patten r. Curney 211 Patterson v. Bird^iall 286 r. Chalmt-rs 206,209 V. Currier 369 V. Devlin 140 V. Edwards 389 V. Kentucky 518 V. Silliman 183 V. Youngs 199 Patton V. Moore 115,116 Paul Boggs, The 392 Paul r. CuUum 173 V. Virginia 221.241o Pa.wlet V. Clark _ 219 Pawsey v. Armstrong 17:5, 194 Pawson i". Donnell 311 Payne f. Gardintr 473 V. Mortimer 361 V. Newcomb 284 Peabody v. Lcwiston 82 Peacock v. Cumanings 191 r. N. Y. Life Ins. Co. 549 V. Rhodes 456 Pearce v. Aldrich Mining Co. 1 V. Austin 458 f. Madison, &c. R. R. Co. 231,238,245 Pearly v. Smith 145 Pearson r. Bailey 267 V. Bank of Metropolis 451 V. Dawson 385 V. Duane 322 Peary r. Hovey 367 Peck V. Batehelder 122 V. Mcl^ean 164 Peckham Ke 547 Peirce v. Ocean Ins. Co. 307 Pekin r. Reynolds 256,262 Pelham r. Grigg 361 Pi'lzer r. Steadniaii 368 Pemberton v. King 127 Penfold V. Univ. Life Ins. Co. 551 Penhallow r. Dwiglit 106 Penn r. Whitehead 171 Pennington Bank r. Bauman 299n Pennock r. Coe 1 1 '^ r. McCorniick 417 SECTION Pennsylvania R.'s Appeal 225, 226. 499, 502 Pennsylvania 11. r. Miller 242 V. Minis 227 r. Unitt^ Stat&s 522 Penn. Steel Co. r. New York City R. 254 Penny Savings Bank i. Fitz- gerald 283 Penny's Case 49S Pennybecker v. McDougal 113 Penobscot R. r. Dummer 508 Penobscot, &c. R. R. Co. v. Dunn 490 Penry v. 13rown 122 Penton r. Robart 100. 105, 121, 127 People v. Commissioners of Texas 481 V. Devlin 191 V. Downs 2, 50 V. Dunbar Co. 241 V. Kankakee Co. 241 V. Keese 218 V. Mackey 217 V. Manliattan Co. 246 V. Mead 477, V. Oakland Co. 242 V. Press Association 509 V. Raymond 242 V. Seffridge 220 V. Throop 225 V. Tioga 77 V. Walker 243 V. Wanzer 50 v. Willcox 254 People's Bank r. Gayloy 400 t'. Keech 156, 164 People's Ice Co. r. Davenport 53 People's Savings Bank r. Collins 278 Peoria, &c. Ins. Co. r. Hall 210 f. Lewis 254 Pequawkctt V. Mathes 361 Perin r. Carey 233 Perkett r. Manistee R. Co. 82 Perkins r. Boardman 385 r. Kirby .34,39 r. Swank 116.432 V. Telephone Co. 82 Perrine r. Chesapeake. Ac. Canal Co. 238 Pcrring r. Hone 188 IVrris r. Hexanii-r 536 Perry r. Chandler 32 r. Granger Ki.?, 166 r. Pettingill 421 r. Prov. Life Ins., &c. Co. ")">;'). 556 Perry Re 1 Persf.ns r. Oldli.-M 191 Ixxii TABLE OF CASES. SECTION Petcrman r. Kingsley 42a Peters v. Warren Ins. Co. 332 Peterson r. Roach 188 V. Union Nat. Bank 468 Pettee r. Prout 450, 458 Pettibone v. Griswold 410 r. Perkins 437 V. Stevens 438 Pettis V. Kellogg 419 Pettit V. First Nat. Bank 399 Petty V. Overall 401 V. Styward 159 Pettyjohn v. Oregon Co, 332 Peyroux i\ Howard 392 Phelps V. Ayres 127 r. Bellows 271 V. Call 361 V. Farmers', &c. Bank 483 V. Phelps 69 V. Raeey 50 V. Simons 161 V. Town 473 Phelp's Executor l\ Pond 147 Phene's Trusts, In re 161 Phila. t\ Keely 371 Philadelphia Co. v. Garrison 82 Phil. Life Ins. Co. v. Am. Life & Health Ins. Co. 554 Philadelphia R. v. Adams 328 V. Catawissa R. 240 V. Stichter 238 Philadelphia Savings Institution, In re 488 Philbrick r. Ewing 122 Philip V. Nock 533 Philips V. Robinson ^^ PMUips V. Baltimore 216 V. Blatchford 202 V. Bridges 459 i\ Building Association 267 V. Garner 49 V. Hawkins 434 V. Pearce 221 V. Portsmouth 82 V. Thurn 449 V. Wickham 242 V. Winslow 236 Phillips' Estate 546,547 Phillips Academy V. King 235 Phillips Limerick Academy v. Davis 489 Philpott V. Jones 371 Phipps Estates V. Tong Phong 38 V. Little 173a Phoenix Co. v. Spiegel 525 Phoenix Ins. Co. V. Raddin 548 Phoenix Life Ass. Co. v. Sheridan 553 SECTIOX Photodrama Co. v. Social Corpo- ration 536 Pickard v. Bankes 351 V. Marriage 427 Pickering r. Cording 447 r. Stephenson 225 Pierce r. Bryant 198 r. Cate 455 V. Faunce 433 V. Fuller 32 V. George 124 V. Milwaukee R. 237 V. Savings Bank 255 V. Swan Point Cemetery 52 V. Whitney 451 Pierson v. Post 49 Pigot r. Cubley 408, 412 Pike r. Balch 307 Pindell v. Grooms 420, 423, 431 Pinkerton v. Manchester, &c. R. R. Co. 498 Pinnock v. Harrison 386 Piper I'. Hilliard 426 Pirie v. Middle Dock Co. 331, 333 Pitman v. Barret 256 Pitt r. Berkshire Life Ins. Co. 553 Pitts V. Hall 156, 162, 172 V. Holmes 72 V. Whitman 528 Pittsburg R. r. Allegheny Co. 510 Pittsburgh Co. v. Beler Co. 520 Pittsburgh, &c. R. R. Co. v. Clarke 498, 501 Pittsburgh R. R. Co. v. Graham 490 Place V. Langworthy 428 Place Re 32 Planing Co. v. Keith 523, 531 Planters' Bank v. Sharp 16 Planters' Ins. Co. v. Tunstall 87 Pleasants V. Meng 368 Plow Works V. Starling 528 Plumbe V. Neild 143 Plumer V. Marchant 361 v. Plumer 113, 121 Plummer v. Erskine 371 r. Lvraan 448 V. North Am. Ins. Co. 558 V. Shirley 417 Plumiera v. Bricka 435 Plumley r. First Nat. Bank 459 Poindexter v. Greenhow 346, 349 Polhemus V. Trainer 433 Polk r. Oliver 193 Pollard V. Bailey 514 r. Somerset Fire Ins. Co. 81 V. Vinton 471 Policy V. Johnson 109 TABLE OF CASES. Ixxiii SECTION Pollock V. Helm 473 Pomeroy v. Ainsworth 266 I". Bank of Indiana 244 V. Manhattan Life Ins. Co. 77, 547 V. Smith 404 Ponder r. Rhea 423 Pondvill Co. v. Clark 242 Ponton V. McAdoo 219 Pool Shipping Co. v. Samuel 326 Poole's Case 121, 122 Pooley V. Driver 170, 181 Poor V. Sears 223 Poorman v. Mills 473 Pope V. Abbott 38 V. Armstrong 383 V. Bank of Albion 467 1-. Curl 536 V. Jackson 113, 124 Poipe Man. Co. r. Gormulby Mfg. Co. 528 Porter v. Burnett 62 r. Dement 425 V. Dunlap 78 V. Gold Mining Co. 232 V. Hanson 383 r. Tournav 139 Portland v. N.' E. T. & T. Co. 126a Posey I'. Decatur Bank 451 Post V. Bank of Utica 279 V. Jones 330 v. New York 221 V. Tradesmen's Bank 409 Pothonier v. Dawson 387 Potomac. The 328 Potter, The 329 Potter i\ Bank of Ithaca 222 v. Holden 433 Potts r. Creagher 520 Poughkeepsie PI. R. Co. r. Griffin 490 Powell V. Brown 139 r. Mon.son Co. 113, 120 Powell f. Petteway 285 V. Waldron 62 Power V. Garrison 126a Pratt V. Harlow 426 r. Hudson River R. R. Co. 227 r. Jewett 242 V. Pratt 225,510 v. Reed 312,391a r. Taunton Copper Co. 502 Pray r. North 31 Preble r. Conger 422 Presbyterian Church r. Andruas 132 Presbyterian Cong. r. Carlisle Bank 497 Prescott V. Ellingwood 77 Presidio County v. Bond Co. 476 SECTIOX Preston v. Briggs 127 r. Melville 143 r. Neale 379,381 v. ^^■alke^ 263 Price r. Brayton 100 v. Lyons Bank 270,286 i: Neal 462 V. Pickett 105 Price's Appeal 16 Prichard v. Prichard 20 Prideaux r. Criddle 453,469 Prince Albert v. Strange 535 Prindle i\ Anderson 40 Prior r. White 427 Pritchard v. Norton 299 Pritchett i: Mitchell 278.279,286 Proceeds of the Gratitude 392 Proctor V. Terrill 278 Progdon V. Murphy 139 Prouty V. Ruggles 526, 532 Provident Life Ins. Co. r. Baum 555, 556 Prov. Life Ins. Co. r. Fennell 549, 556 Prov. Life, &c. Co. r. Martin 549, 556 Provost i". Patchin 311 V. Wilcox 441 Public Schools r. Heath 77 Pudas v. :Mattola 370a Pugh r. Arton 122 Pullen r. Monk 82 Pull is r. Somerville 255 Pullman v. Upton 485 Purcell V. ]\Iather 421 Purdy V. Phillips 257 Purner /". Piercy 101 Purse r. Snaplin 562 Purs'iance V. Angus 311 Putnam i\ Gushing 421 V. Storey 76 V. Wise' 207 Pyle i\ Western Union Co. 36 Pyman v. Dreyfus 325 Pyrennee, The 330 Quackenbush i". Sawyer 172 Quain's Appeal 35 Quality Car Co. r. Corkill 446 Queen r. Saddlers' Company 228 r. Shickle ' 49,50 Quigley r. Welter 78 Quiggle V. Vining 105 Quillan, The 332 Quimby v. Varniim 456 Quiney, Ex parte 122, 124 Quincy Bridge Co. r. Adams 245 Ixxiv TABLE OF CASES. SECTION Quinn v. Madigan 145 V. Moore 75 V. Quinn 204 V. Whitney 82 Quitman Oil Co. v. Peacock 227 R. Racine Bank r. Case 367 Racine R. v. Farmers' Trust Co. 245 Radiator Co. v. New York State 482 Radigani v. Hughes 126a Rahr's Sons v. Buckley 42a Railroad r. Berks County 231 Railroad Company v. Dubois 523, 524 t\ Georgia 245 V. Howard 238 V. Johnson 345 V. Mellon 526 V. Trimble 528 Railway Co. v. Allerton 215. 225, 485 t\ Sayles 529 Railway Cos. r. Keokuk Bridge Co. 245 Raitt V. Mitchell ' 384 Ralston v. Boady 41 V. jMoore 365 V. Wood 113 Ramsay v. Peoria Ins. Co. 244 V. Warner 279,371 Ramsdell v. Hulett ^ 256 Ramsden r. Boston & AllJanj' R. 379 Rand r. Butler 146 Randall r. Baker 418 V. Elwell 113 V. Russell 140 V. Van Vechten 224 Randel v. Brown 381 Ranlett v. Blodgett 421,428 Ransdell r. Boston 151 Rathbone f. Orr 75 Rawlins v. Turner 25 Rawls V. American Life Ins. Co. 546, 548, 549 Ray V. Young 127 Ray burn v. Day 253 Rayner v. Bryson 263 Rea v. The Eclipse 214 Read v. Blunt 361 V. Head 143 V. Wilson 428 Reade v. Conquest 535 Real Estate Co. r. Penn. Co. 477 V. Wilmington R. 275 Reay f. Richardson 372 Rebecca, The 471 Rector v. Dantley Co. 254 SECTION Reciprocity Bank, Re 500 Reckendorfer v. Faber 520,531 Red Diamond Co. v. Steidemann 126o Redington v. Chase 165 Redlon v. Churchill 188 Redmond r. Dickerson. 225 Reed v. Engel 167o V. Marble 78 V. Nevins 81 V. United States 324, 325 V. White 214 Reeder v. Nay 367 Rees V. Warwick 448 Reese v. Bank of Commerce 501 v. Bank of Montgomery Co. 485 Reeves i". Capper 400 V. Whitmore 421 Reger v. O'Neal 274 Regina v. Arnaud 231,484 V. Cheafor 50 V. Mayor of Chester 223 V. Powell 60 r. Registrar 202 Reichard r. Manhattan Life Ins. Co. 549, 555 Reichenbach v. McKean 405 Reid r. Darbv 307 V. Holliiishead 189 V. Northern Lumber Co. 299a Reiff's Appeal 145 Reliance Ins. Co. c Garth 370a Rembert v. State 50 Remmers r. Remmers 82 Remsen r. Graves 457 Rennell v. Kimball 214,258 Renner V. Bank of Columbia 452 Rensens v. Arkenburgh 263 Reserve Life Ins. Co. v. Kane 546 Rex V. Brooks 50 V. Caipper 482 V. Collector 206 V. Dublin 241 V. Hull Dock Co. 482 V. Ogden 241 V. Searing 50 V. St. Dunstan 122 i: West^vood 228 Rexford V. Widger 27^ Rexroth v. Coon 50 Rey r. Simpson 456 Reynes v. Dvunont 382 Reynish i'. Martin 151 Reynolds v. Accidental Ins. Co 556 1-. Commissioners 236 v. Shuler 113 i\ Smith 437 Rhett V. Pee 455 TABLE OF CASES. Ixxv SECTION Rhoades i\ Reed 361 Rhode Island Trust Co. v. Noyes 138 Rhodes v. Downing 42a Rialto Co. V. Miner 217 Rice V. Adams 129 V. Austin 178 V. Benedict 409 V. Silver 32 V. Williams 64 Rich V. Levy 424 V. Roberts 425,426 Richards, In re 113, 126 Richards v. Butler 193 V. Heather 194 V. Hunt 193 V. Richards 69 V. Robin 502 V. Symonds 380 Richardson v. Baker 286 V. Borden 113 V. Campbell 257 V. Copeland 113 V. Hogg 198 V. Jenkins 360,361 V. Scobee 275 V. Shaw 398a V. Snider 193 V. United States 324 Richmond v. Bronson 257 V. Irons 514 V. Judy 172 Richmond R. v. Sneed 238 Riehter v. Burdock 275,281 Rickard r. Robson 146 Ricker v. Loan & Trust Co. 201 Ricordi v. Mason 536 Riddle v. Whitehill 192. 194 Riddlesbarger v. Hartford Ins. Co. 555 Rider v. White 50 Ridgely v. Ridgely 138 Ridgway v. Farmers' Bank 224 Ridgeway v. Underwood 76 Rigg V. Lonsdale 49 Riley v. Farnum 82 V. Gregg 278 Riley Co. r.'Sears Co. 281, 287 Rindskoff v. Lyman 431 Riney v. Hill 264 Ringer V. Timber Co. 271.281,288 Ringlen, Matter of 227 Riper r. Poppenhausen 198 Ripley v. Colby 172,174.179 f>. Larmouth 422 V. Page 113 V. Railway Pass. Ass. Co. 556 Risley v. Phenix Bank 87 Risley, Succession of 547 SFXTIOX Ritchie r. McMullen 40S Rittenhouse v. Leigh 171 Ritter v. Stevenson 77 Rivanna Nav. Co. V. Dawson 334, 486 Rive-s V. Dudley 259 ('. Duke 346 Rixon. V. Emary 365 Roakes v. Bailey 371 Robarts r. Tucker 470 Robbins r. Bacon 77 f. Fuller 193 V. Maddy 251 V. Parker 428 Bobbins, &c. Co. r. Brewer 253 Robbinson r. Harrison 127 Robert t\ Wyatt 400 Roberts r. Barker 32, 121 i\ Corbin 465,466 V. Dauphin Deposit Bank 124 V. Malin 261 V. McNeeley 288 V. Nat'l Life Ins. Co. 547 V. Roberts 546 r. Yarboro 388 Roberts-Manchester Co. r. Wi.N<» 259 Robertson r. City of Rockford 245 V. Corsett ' 124o, 170 V. Hayes 24 V. Metropolitan Co. 553 V. Smith 177,211 Robinson i". Bank 156 V. Bland 298 v. Elliott 426 V. Fitch 433 V. Harrison 126a V. Hawksford 466 V. Hill 422 V. Holt 428 V. Hurley 407,408 V. Lane 244 V. Larrabee 385,386 V. Lyall 312 V. Manufaoturers' Ins. Co. 319 t\ Marshall 78 V. McNeill 76 V. Security Co. 193a V. Tipton 77 V. Tongo 358 Robinson Codfish Co. i'. Fi.sh Co. 126a Robison r. Beall 486 Robson r. Dailev 421 Rocho.ster Co. r." Stiles' Co. 75 Rock, &c. Bank r. Wooliseroft 272 Rock Island Plow Co. v. Master- ton 299a Rocky Mountain Co. v. Lunt 165 Ixxvi TABLE OF CASES. SECTION Roderick v. Sanborn 126a Rodijkeit r. Andrews 74 Rodocanachi r. Buttrick 448 Roe I'. Ashburner 27 V. Galliers 32 V. Gradell Co. 491 V. Hayley 30 V. Snattinger 254 RoflFey v. Henderson 127 Roger V. Weir 385 Rogers V. Batehelder 187, 188 v. Buckingham 271 V. Burlington 477 V. Coit 179 V. Crow 132 V. Jones 228 V. Mining Co. 299a V. Pierce 426 V. Sample 267 V. West 257 Rohrle v. Stidger . 408,410 Rollins V. Clay 225 V. Stevens 189 Rood V. Welch 425 Rooke V. Thomas 242 Rooney V. Second Avenue R. R. Co. 383 Root V. Pinney 274,284 Roiper V. Williams 32 Rosa V. Butterfield 279 Rose u. American Co. 371o V. Bank of Australasia 331 V. City of Bridgeport 263 V. Hail 366 V. Munford 269 V. Page 437 V. Turnpike Co. 242 Rosebrough v. Ansley 268 Rosenbaum V. Hayden 170 Rosenberger f. Express Co. 259 Rosenblatt v. Weinman 173a, 498 Rosenfeld V. Boston Ice Co. 553 Rosetto V. Gurney 320 Rosevelt v. Brown 513 Ross V. Bradshaw 549 V. Decy 177 Ross Re 63 Rosslyn's Trust 147 Rothchild V. Van Alstine 425 Roth Re 35 Rothwell V. Humphreys 188 Roundy r. Hunt 357 Row V. Dawgon 77 Rowan i\ Sussdorflf 49 Rowe V. White 152 Rowell V. Klein 106 Rowland v. Rowe 454 SECTION Rowney's Case 106 Rowson V. Earle 383 Royal Bank of India's Case 228 Royalton v. Royalton, &c, Co. 224 Rubber Co. v. Dubois 534 V. Goodyear 528,529,530,534 Rubber-tip Pencil Co. v. Howard 520 Rubel Re 35 Ruckman v. Outwater 81, 121 Ruddell r. Ambler 285 Rude V. Westcott 528 Rudge V. Winnall 106 Ruggles f. Buckley 191 Rumball t\ Metropolitan Bank 474 Rumbell, The 305, 307 Runkle v. Burrage 167a Runyan v. Coster 232 Ruse V. Mut. Ben. Life Ins. Co. 552 Rush Co. V. Stubbs 113 Rushforth v. Hadfield 382, 384 Russ V. Barker 113 Russell V. Allen 163, 165 V. Annable 188,189,361 V. Leland 174 V. Lytle 366 f, McLellan 220, 242 V. Russell 163, 166 Russell Road, In re 420 Rutgers V. Hunter 30 Rutland R. R. Co. v. Thrall 493 Ryan v. Forman 543a V. Good 520 V. Maddu 77 V. U. S. 346 Ryder v. Alton, &c. R. R. Co. 510 V. Faxon 131 s. Sabine, The 330 Sabine V. Paine 281,457 Sabin V. Smith 49 Safford v. Vail 278 Sage r. Lake Shore R. 245 Sainabury v. Matthews 103 Sale v. Smith Co. 38 Salemi Bank i\ Gloucester Bank 224 Saloman r. Pioneer Co. 367 Salt Fork Co. r. Eldredge Co. 82 Saltmarah r. Planters', &c. Bank 283 r. Smith 73 V. Spaulding 225 Salt's Co. V. Tingue Co. 520 Saltus V. Ocean Ins. Co. 320 Sammis v. Clark 257 Sampson v. Camperdown Mills 127, 129 TABLE OF CASES. Ixxvii Sampson v. Graham V. Shaw Sandberg r. Scougale San Bernardo, The Sandenian v. Scurr Sanders v. Anderson V. Branch Bank V. Daris V. Wheel Co. Sanderson v. Bowes SEDITION 116 604 191 329 323 445 369 405 370a 451 Sandford v. Wiggins Ferry Co. 307 Sands v. Church 279 i\ Gilleran 255 Sasdwich Mfg. Co. v. Krake 74 Sanford r. Litchenberger 255 San Francisco v. Water Works 218 Sanger r. Baumberger 361 Sanitary District v. Cook 122 Sanner v. Smith 267 Santa Cruz v. Wykes 477a Santissima Trinidad, The 330 Sapphire, The 328, 329 Saragossa, The 330 Sargent i\ Franklin Ins. Co. 497, 501 V. Slack 49 V. Usher 431 1-. Webster 224 Sasson v. Haegle 121, 122, 127 Saunders v. Lambert 276, 284 V. McCarthy 371,437 V. Wilsome 368 Savage v. Ball 4»5 Savannah R. v. Lancaster 479 Saville v. Barohard 382 V. Robertson 177 Sawyer r. Freeman 209 V. Long 124 V. Pennell 425,428 V. Turpin 426,427 Saxton V. Williams 431,4.32 Saye v. Hill 126a, 127 Sayre IK Hewes 426 r. Wheeler 446 Scaffolding Co. V. Whitney 520 Scantlobury r. Tallcott 446 Scarfe v. Jardine 193 Scari.sbrick v. Skelmersdale 147 Scarpellini v. Acheson 69 Schaeffer v. Missouri Ins. Co. 489 Schanz v. Sotscheck 275, 281, 285 Schaper v. Bibb 129 Schemmer r. North 123 Schenoctadv, &c. Plank Road Co. V. Thatcher 489 Schermerhorn v. Talman 274, 279 Schiebel Co. r. Clark 520 Sohieffelin r. Carpenter 38 SECTION Schimmelpennich v. Bayard 449 Schmertz V. Shreever 188 Schmidt v. Gaukler 278 V. Marconi Co. 486, 508 V. Webb 385 Schmitt V. Dooling 82 Schmittdiel v. Moore 437,439 Schneider v. Prov. Life Ins. Co. 556 Schnitzer r. Kramer 446 Schofield V. Baker 455 Scholefield v. Eiehelberger 171, 194 RchoUenberger f. Brinton 345 Schooner Freeman v. Bucking- ham 391 Schooner Sarah, The 319 Schoonmaker V. Gilmore 334 Schow Re 299a Schulten V. Lord 199 Schultz r. Hastings Lodge 27a Schwartz i". Germania Ins. Co. 553 Schwenk v. Wyckoff 74 Scoles V. Universal Life Ins. Co. 549 Scotland, The 328 Scott V. Crews 401 V. Depeyster 226 V. Henry 417 V. Jones 81 V. Lifford 453 V. Liverpool & London & Globe Globe Ins. 548 V. Lloyd 266 V. Miller 311 V. Parkview Co. 370a V. Raynient 183 V. RejTiolds 254 V. Sh reeve 81 r. West 148 Scottin r. Stanley 212 Scovill V. Thayer 485 Scudder r. Calais Steamboat Co. 88, 307 Seabury v. Am. Ende. 526 Seager v. Drayton 446 Seamen's Bank r. M'CuUough 271 Sears r. Wingate 321 Seaton r. Commonwealth 52 Seaver v. Lincoln 451 Second Nat. Bank r. Merrill 122 Security Ins. Co. r. Dillard 5.11 Security Savinsrs Co. r. King 467 Sedbury v. Duffy 271 Sedgworth r. Overend 211 Seedhouse v. Broward 124 Seeger r. Duthie 325 r. Pettit 122,126,129 Seeley v. Seeley 81 Seibert v. Bakewell 198 Ixxviii TABIJi OF CASES. SECTION Selden r. Illinois Trust Co. 82 V. Williams 82 Selleck v. French 256 Selma, &c. R. R. Co. i\ Tipton 492 Selvvyn Co. v. Waller 167a Semple Co. r. Detweiler 401 Sensenig v. Pennsylvania R. 82 Sessions v. Richmond 271 V. Romadka r)28, 529 Settembre ('. Putnam 204 Seven Brothers, The 334 Seving v. Gale 372 Sewall V. Boston W'ater Power Co. 482, 499 Sewell V. Nichols 383 t'. Price 417 Sexton V. Breese 109 V. Graham 161 Seybert v. Pittsbura: 477 Seymour v. Osborne 519, 520, 530, 531, 532, 534 V. Sturgess 576 Shackle v. Baker 185 Shader v. Pass. Ins. Co. 556 Shaeffer v. Blair 172 Shaffer v. McCulloch 508 V. McKee 470 Shafner v. Shafner 106 Shafto V. Powel 358 Shamburg i\ Ruggles 180 Shamokin Bank r. Street 445 Shanks v. Klein 186 Sharon Canal Co. r. Fulton Bank 171 Sharpe v. Pearce 419 Sharpless v. Grand Lodge 552 Shattuck V. Oakland Co. 225 Shaver v. Bear River M. Co. 236 Shaw V. Clark 366 v.. Farnsworth 27 V. Gilmore 76 V. Huzzey 140 V. Lead Co. 62 V. Merchants' Bank 400,403,471 V. Pratt 371 V. R. 399 V. Spencer 499 V. Wlishire 417 Shaylor v. Mire 453 V. Mix 453 Shea V. McEvoy 426 V. Vahey 457 Shearer v. Babson 431 V. Shearer 82 Sheehv u. Mandeville 177,365,366 Sheen r. Rickie 112,114 Sheets v. Selden 30 Shelburne v. Letsinger 418 SECTION Shelburne Falls Nat. Bank v. Townsley 453, 454 Sheldon r. Edwards 432 V. Houghton 185 V. PruesSner 255 Shelley v. Shelley 148 Shelmer's Case 352 Shelton v. Aultman 271 t\ French 398, 403 Shepherd v. Busoh 369 i\ Harrison 321,471 Sh&pard v. New York 257 V. Pybus 309 Sheppard i.. Shelton . 163 V. Steele 307,391 V. Taylor 315 Sherman r. Smith 514 Sherrard v. Sherrard 145 Sherry v. Proal 27a Sherwood v. Johnson 357 V. St. Paul 186 Shibley V. Angle 517 Shields i: Ohio 245 Shiels V. Byrd 126a Shipman v. Stratesville 529 Shoe & Leather Bank v. Dix 446 Shoemaker v. Benedict 189 V. Sim]>son 116 Shoop V. Fidelity Co. 257 Shorter V. Dail 414.425 Shotwell V. Webb 81 Shwarz V. Sweitzer 271 Sibley v. Aldrich 379 Siebeneck t". Anchor Savings Bank 460 Siedenbach v. Riley 400 Sieg V. Greene 389 Siegel r. Chidsey 192 Sieveking v. Maas 325 Sigerson i\ Mathews 455 Sigourney r. Munn 194 Silesia, The 330 Sill V. Worswick 295,296 Silliman v. Fredricksburg R. 477 Silver Lake Bank r. North 233 Simon f. Etgen 254 Simmons v. Almy 383 V. Bank of Greenwood 465 V. Jenkins 430 V. Leonard 194 V. Ross 82 Simonds t\ Turner 31 Simons v. Farren 32 V. McClain 156 Simonton r. Vail 289 Simipson v. Evans 269 V. Fogo 299 V. Fullenwider 266,279 TABLE OF CASES. Ixxix SECTION Simpson c. Pacific Ins. Co. 466 V. Tumey 454 V. Wilson 528 Sims V. Harris 164 Simson i". Ing-ham 371 Sinclair r. Maritime, &c. Ins. Co. 556 Singer r. Carpenter 185 c. Kelly 199 Singer Man. Co. r. Clark .'598, 406 Single V. Plielps 426 Singleton v. Singleton 106 V. St. Louis Life Ins. Co. 546 SircTi Laboratories r. Garbutt 299a Skelly V. Bristol Bank 256 Skiff i\ Solace 430 Skillman v. Titus 466 Skinner v. Somes 81 Skolny v. Richter 199 Skowiiegan Bank v. Cutler 498 Slaymaker v. Gettysburg Bank 68, 500 Slayton, Ex parte 328 Slee V. Bloom 243 Sloan V. Williams 74, 75 Small V. Herkimer Manuf. Co. 489 V. Robinson 381,406 l\ Smith 459 Smallman t\ Whilter 322 Smart v. Sandars 387 Smiley v. Smiley's Adm.x. 173a Smilie v. Stevens 81 Smith, Annie H., The 209 Smith V. iEtna Life Ins. Co. 549 u. Anderson 201 V. Argall 198 V. Bank 167a V. Barham 140 V. Bartholomew 365 V. Beattie 416,417 v. Blake 124 V. Bodim- 173 V. Chicago, &c. R. R. Co. 246 V. Coolbaugh 423,439 V. Coopers 264,284 V. Craig 82 V. De Silva 209,214 V. DodAs 35 r. Glanton 289 V. Glass Co. 82 f. Hollister 285 V. Hunt 38 V. Hurd 509 V. Keels 366 r. Mach 271 V. Marvin 280,284 V. McLean 425 r. Mercer 453 Smith c. Miller V. Mitchell V. Moore V. Morrill V. Nichols t\ Odom V. Paton V. Peat V. Poiilon .SECTION 466 27a 217 460 520, 529 113,123 2G6 34 454 V. Prattville Man. Co. 225,510 V. Robinson. 285 V. Rogers 81 V. Sac County 477 V. Saddle Co. 520 V. Shippers' Oil Co. 408 V. Smith 227,242 V. Southern Foundn- Co. 510 V. Stoddard " 267,283 V. Swormstedt 245 V. Thompson 75 V. Waggoner 116 V. Walker 282 V. Wolf 271 f. Zurcher 426 Smithurst v. Edmunds 395,417 Smith Wogan Co. r. Rice 435 Smitliwick v. Ellison 121 V. Whittey 271 Smyth r. Hawihorn 194 V. Tankers ley 165 Snead r. Watkins 381 Snedeker r. Warring 113. 115 Snell V. Harrison 166 Snider's Sons Co. r. Troy 220a Snodgrass r. Reynolds 184 r. Sweetser 470 Snow r. Perkins 119,121 Snyder i\ Leland 198 Society for Savings r. New Lon- don* ■ 477 Sohier v. Eldredge 143, 144, 145 Solomons v. United States 524, 528 Solon V. Sav. Bank 256 Somerset R. R. Co. r. Cashing 4S1 Somes r. British Empire Ship- ping Co. 376,387,388,410 V. Sugrue 307 r. White 213 Souder, The 391a Soule r. Soule 253 Souten V. Rowan 371 Southampton, Jkc. Co. r. Clarke 32(» Southampton Dock Co. r. Richards 493 Southard r. Railway Pass. As.s. Co. 556 V. Steele 188 South Bay Co. r. Gray 490 Ixxx TABLE OF CASES. SECTION Soutkbridge Savings Bank v. Exeter Machine Works 124a Southern R. v. Lewis 325 Southwark, The 328a Southwortli r. Morgan 299a V. Parker 163 v. Smith 163, 165 Sowden v. Craig 418 Spain V. Hamilton 77, 266, 285 V. Taleott 271 Spalding v. Columbia Theatre Co. 126a f. Mure 211 V. New York 354 Spangenberg r. Western Co. 502 Sparhawk i\ Wills 256 Sparks v. Spaulding Co. 371a Sparrow V. Pond 105 Spaulding v. Adams 386 V. Andrews 448 V. Barnes 439 V. Warner 166a Speakman i". Speakman 146 Spear r. Pratt 448 V. Rockland Co. 508, 510 Spears v. Hartly 376, 382 Speer v. Bishop 193 v. Skinner 422 Spencer's Case 106 Spencer v. Billing 179 ■V. Brower 253 V. Sloan 397 Spering's Appeal 226 Sperry Co. v. Webber 76 Spiker t\ Nydegger 77 Spitler V. James 459 Spofford v. State Loan Co. 271 Spooner v. Holmes 477, 478 V. Roberts 255 Sprague v. Cochew Mfg. Co. 499 I'. Has^enwinkle 371 Spratt V. Hobhouse 351 Spray, The 328 Spring, The 328 Spring V. Fisk 434 V. South Carolina Ins. Co. 382, 385, 386 Springer f. Mfg. Co. 426 Springfield v. Drake 75 V. Schweitzer 20 Sproul V. Sloan 398a Squier v. Mayer 119, 122 Squire V. Portland 126a, 217 St. Albans Bank v. Wood 281 St. Clair v. United States 306 St. Germaine f. Brunswick 520 St. John V. Am. Mut. Life Ins. Co. 77, 547 St, John V. Dann V. Erie R. r. Homans St. Lawrence, The St. Losky f. Davidson St. Louis r. Johnston SECTION 148 508. 510 466 392 408 466 St. Louis Co. r. Christopher 414 St. Louis Mut. Life Ins. Co. v. Graves 551 V. Kennedv 552 St. Paul R. V. Robbins 493 Staats V. Bristow 189 Stace's Case 485 Stafford r. Bacon 366 Stainback V. Rae 328 Stainbank v. Fernley 506 Stall V. Wilbur 166 Starabaugh v. Yates 103 Stamey V. Assxir. Co. 548 Stamps V. Gilman 430 Stanard v. Orleans Co. 387 Standard Co. v. Iron Co. 520 Standard Fashion Co. v. Grant 299a Standard Sanitary Co. i\ United States 534a Standeu v. Christmas 34 Stanley r. Gaylord 423 V. Westrop 267 Stansfield r. Portsmouth 127 V. Portsmouth Mayor 122 Stanton v. Eager 471 Stanwood V. Suydam 194 Star of Hope, The 313,331,332 Stark V. Sperry 271 Starke v. Inman 289 Starkweather r. Gleason 491 i\ Jenner 166 Starr r. Church 426 Starwich v. Cut Glass Co. 27a State r. Adams 242 i\ Baltimore & Ohio R. R. Co. 256 V. Bank of Maryland 237 V. Benham 427 V. Bick 241 V. Burns 190 V. Commercial Bank 237, 243 l\ Coramissionei's 231 V. Creamery Co. 241a V. Doe 50 V. Franklin Bank 495 V. Griffith 289 n Hill 50 v. House 50 V. Howard 241a V. 111. Cent. Ry. 217 V. Jackson 176 TABLE OF CASES. Ixxxi SECTION Stat« V. Johnson 357 V. Linde 50 r. Ljthus 50 V. Mayea 262 V. McMaster 559o V. Milwaukee R. 243 V. Morristown Association 481 V. Murphy 50 V. Nashville University 237 V. N. Y. Ins. Co. ' 241o v. Oberlin Association 232 V. Pawtueket Corporation 243 V. Plaisted 431 V. Pottmeyer 56 V. Saline County Court 477 V. Shaw ' 50 V. Sherm'an 289 V. Tappan 287 V. Tasker 421,428 V. Tennessee Coal Co. 296 V. Wapello 477 State Bank v. Fearing 457 V. Keely 459 r. King 299a V. State 241,243 State Savings Bank v. Kercheval 113,124 Steagall Cheairs Co. v. Bethune Co. Co. Steamboat Virginia v. Kraft Steamboat Waverly v. Clements Steamship Co. v. Cochran V. Joliffe Steel Co. V. United States Stearns v. Mar&h Stebbins r. Phopnix Ins Stedman *'. Feidler Steele i\ Benham V. Mart Stein r. Hermann i\ Whitman Steinart r. DeuS'ter Steiner v. Faulk Stein -Gray Drug Co. v. Steinman v. Midland Loan Co Stephens, Ex parte Stephens v. Harris r. Northern Pac. Ry. Stephenson V. Dowson V. Price SterlinfT Ex parte Sterling r. Gogebic Co. Stern f. Metropolitan Ins. Co. Stetson V. Eastman Steuart v. Gladstone Stevens v. Beals 389 379 391 214 316 370a. 397 495 208, 214 427 27 424 477o 428 191 Michel- 299a 288 127 361 82 562 387 383 271 5.59a 161 185 456 SECTION Stevens v. Bell 407,408,410 V. Boston & Wor. R. 381 V. Bowers 77 V. Davison 228 V. McCormick 166a V. Stewart 87 V. Warren 546, 547 Stevenson r. Boyd 165 i\ Maxwell 253 Steward v. Blakeway 186 Stewart v. Ball 51 V. Beale 425 y. Doughty 105 V. Fireman's Ins. Co. 500 V. Forbes 185 V. Kirkland 78 v. Lansing 477 V. Petree 269 V. Piatt 425, 426 V. Simon 462 V. Smith 427 V. Sonneborn 180 V. Stewart 166 Stickney v. Allen 385 Stief i\ Hart 405 Stiles V. Farrar 76.77 Stillman r. Harvey 189 Stimson c. Green 258 Stirling v. Phosphate Co. 212,313 V. Watson Co. 508 Stiritz V. Mining Co. 23 Stix V. Sadler 428 Stockham v. Munson 281 Stockland v. Rus.sell Co. 533 Stocks V. Dobbins 78 i\ Dobson 547 Stockton r. Guthrie 259 Stockwell V. Campbell 113 Stoddard r. Kimball 459 V. Sagal 254 Stoeckle v. Rosenheim 387 Stokes r. Frazier 410 Stokoe r. Upton 113. 127 Stone V. Brown 406 V. Casualty Co. 556 V. Livingston 121 V. Locke 263 V. Marvel 418 V. Old Colony R. 548 V. Postal Co. 290ffl V. Sargent 547 V. Wire Co. 167a Stonobroker v. Littleton 254 Storaudt r. Vogel Co. 426 Storm V. Stirling 445 Story r. Flournoy 386 Ixxxii Stout V. Stevenson V. Stoppel Stowe V. Flagge Stowell r. Drake Strain v. Gardner Strang v. Osborne Strange v. Graham Strather v. The Hamburg Strattoii V. Savings Bank Straus V. American Publishers 534a Strauss v. Crawford 165 Streat V. Wolf 167a Strelly V. Winston 208 Streep f. Simpson 425 Street ?'. Thompson 259 Strickland v. Parker 113,116 Strode V. Gilpin 191 Strong i\ Brooklyn R. 493 Stuart Re 63 Stuart V. Bute 125 Stubbs f. Parsons 31 Studebaker Co. v. Dodds 170 Stukeley r. Butler 100, 101 Stults V. Silva 446 Stumph V. Bauer 185 Sturges V. Stetson 485 Stuyvesant r. Davis 39 Sudbury V. Jones 113 Suffolk Co. V. Hayden 523, 525 Sullivan v. Finn 366 V. Maroney 547 Sumner v. People 266 Sumpter v. Tucker 77 Sun Ins. Co. v. Kountz 179 Sunbeam., The 214, 320 Sunbolf V. Alford 379 Supervisors v. Schenck 477 Supremie Council r. Garrigus 556 Susquehannah Bridge Co. v. Gen- eral Ins. Co. 233 Sussex Bank v. Baldwin 451 Sutton V. Cole 222 Suj'dam v. Moore 242 V. Owen 194 Swain V. Frazier 366 Swamscot Machine Co. v. Par- tridge 254 Swan V. Bournes 379 V. Steele 174, 179 Swan Re 141, 149 Swartwout V. EJvans 156, 163 V. Payne 268 Swartzbaugh v. People 50 Swasey v. U. C. R. 395 Sweeney V. Cloutman 315 Sweet V. Spenee 271 Sweetser v. Jones 113 TABLE OF CASES. SECTION SECTION 81 Sweetzer r. Mead 89,418 126. 129 Swetland v. Swetland 445 219 Swift V. Hall 425 164 i\ Thompson 113,121 28 r. Tyson 395, 458 204 Swing r. Richardson Co. 170 194 Switz r. Leacli 403, 405 79 SAvord r. Low 116 82 Sykes r. Beadon 170 rs 534a Svmonds r. Harris 165 Symons v. Barrels of Cement 313 Svmmierg v. Carroll 558 Syracuse, The 328 T. Taber r. Hamlin 417,437 Tabor r. HoflFman 64 Tadman r. D'Epineuil 421 Taffe t. Warwick 121 Taft V. Bowker 400 r. Hartford. &c. R. R. Co. 510 V. Ward 202 Taggard i\ Loring 55 Talbert v. Hamlin 191 Talbot r. Commonwealth Bank 451 v. Whipple 121 Tallman v. Barnes 166 t\ Hoey 77.80 V. Truesdell 271 Tulmadge r. New York Bank 411a Talman r. Smith 439 Taltv i". Freedraan's Savings Co. .395, 404. 407 Taney ?\ Penn. National Bank 399 Tanner v. Byne 361 Tapley r. Butterfield 189 Tapscott f. Newcombe 148 Tarbell v. Page 511 V. West 189 Tarleton v. Emmons 274 Tarpley v. Wilson 257 Tate V. Bait. & 0. R. 520 r. Hilbert 468 V. Wellings 273 Tatlock v. Harris 193 Tattersall r. Groote 170 Tatum V. Bank 459 Tayleur v. Wildin 40 Tavloe v. Sandiford 371 Taylor v. .^tna Life Ins. Co. 550, 555 V. Bank of Alexandria 368 V. Brigham 213 V. Bullen 309 V. Castle 204 V. Cheever 438 V. Chester 398 tablp: of cases. SECTION Taylor c. Collins 113 r. Co. Com'rs 371 r. Collins 117 r. Coryell 188 V. Exporting Co. 232 r. Fried 172 V. Griswold 509 V. Laird 315 V. Lewis 382 V. Martindale 542 V. Phila. R. 238,239 V. Shum 34,35 V. Snyder 451,45.5 V. Swafford 82 V. Thomas 280 V. Town send 121 V. Wilson 351 V. Wing 25S Teager v. Bowie 96 Telegraph Co. v. Davenport 502 Telfair v. Howe 233 Tempest v. Kilner 62 r. Rawling 32 Templeman v. Biddlc 108 Templeton v. Bockler 1 Tenney v. Foote 190 Terre Haute R. R. Co. r. Earp 490 Terrett v. Taylor 243 Terry v. Life Ins. Co. 551 V. Little 514 Terry Re 200 Texas t\ White 477,478 Thacher v. Dartmouth Bridge Co. 240 Thacke i\ Hernsheim 167a Thames Iron Work.s Co. Re 387 Thayer v. Dwiglit 400 r. Lyman 70 Thellusson i". Woodford 147 Theobald r. Railway Ass. Co. 556 Thiclman (". Carr 113 Third Nat. Bank r. Bank of Com- merce 414, 425 V. Boyd 397 Thomas r. Castle 138 V. Dakin 216 V. Murray 274 V. Springer 27a v. Van Kaptr 32 r. West Jersey R. 237 Thomasnea r. Carpenter 370a Tliomaston Bank r. Stimpson 233 Thomip.son r. Alger 504 r. Dolliver 400.416 r. Dominv 471 r. Erie R. 82.510 r. Gimbel Bros. 82 r. Hermann 313 SECTIOX Thompson r. Hubbard 540 r. Ins. Co. 553 r. Koch 275 1-. Nesbit 266 V. Pacific R. 219 V. Patrick 401.402 V. Phillips 543a V. Prettyman 284,286 V. Schreiber 540 v. Sloan 445 V. Tompkins 79 r. VanVechten 422.424.426,440 r. Ware 282 V. Williamson 185 Thompson-Starrett Co. r. Ellis Co. 5090 Thomson v. British Bank 470 v. Davenport 212 V. Ivee County 70,85,476,477 Thorington i\ Smitli 346 Thorndike r. De WoU 206 Thorne v. First National Bank 399 Thornhill r. Bank of Louisiana 244 Thornton v. Cochran 434 Thorp V. Hammond 323, 328 Thorpe r. Hughes 517 r. Rutland, &v. R. R. Co. 219 Thorsen v. Martin 307 Threfall V. Borwiek 381 Thresher r. Ea>t l^ndon W. ^\'. 127 Thurber r. Jewett 437 V. Sloop Fannie 305 Thnrsby v. Plant 34 Thurston v. McLeelan 82 Thwing V. Wasliingtoa Ins. Co. 320 Tibbetts v. Home 124. 124a Ticonic Bank r. Johnson 267 Ticonic Water Power r. Lang 490 Tidball v. Sehmeltz 279 Tidd V. Rines 186 Tiedenian v. Knox 471 Tierinan r. .Tack^on 75, 77 Tiffany v. Warren 422,429 Tifft V. Barton 422 i: Horton 116, 124 Tillicr r. Whitehead 188 Tillman r. Bungenstock 100 V. De Lacv" 124a Tillotson r. Tillotson 194 Tillson r. United States 262 Tilton. The 307 Tim»>erlake r. First Nat. Bank 272 Tindal r. Taylor 319.471 Tindall r. Wasson 419 Tinney r. Stebbint 160 TipiH'ts r. Walker 482,483 Tipjiiiig r. Tipping 95 Ixxxiv TABLE OF CASES. SECTION Tisdale v. Harris 503 Tiaon V. Taniehill 113 Titanic, The 320, 328a Title Guarantee Co. r. Haven 462 Title Guarantee Co. r. Witmire 299a V. State 82 Title Trust Co. v. Wheatfield 275, 285 Titus V. Cairo R. 227 Titus v. Mabee 113,421 Toledo Co. V. Computing Co. 520 Toleman V. Portbury 39 Toll V. Hiller 263 Tolman v. Hanrahan 188 Tom V. Goodrich 188,211 Tooker V. Sugar Co. 494 Toomey V. Casey 38 Tome V. Dubois 330 Tomkins v. Ashby 445 V. Hill 284 Tompkins v. Saltmarsh 401 Topi iff V. Topi iff 525 Topping v. Paddock 191 Torrey v. Burnett 127 V. Cement Co. 222 Towle V. Kettell 325 Towne v. Bowers 106 V. -Fiske 113, 123 Townsend v. Riley 264 Townslay V. Sunrall 448 Townsley v. Niagara Ins. Co. 227 Tracy v. TufHy 197 Trademark Cases 541 Transfer, The 214 Trappes V. Harter 126 Trask v. Jacksonville R. 478 Travelers' Ins. Co. v McConkey 556 Travis v. Bishop 426 Treadwell v. Davis 400, 403 Treat v. Cooper 446 V. Gilmore 422 Trebilcock V. Wilson 345, 347 Tregear v. Water Co. 68 Tregonwell V. Sydenham 146 Trent Co. V. Wheelwriglit 491 Trenton Mut. Life, &c. Ins. Co. V. Johnson 546 Trevor r. Whitworth 232 Tribblo v. Anderson 289 Tribune, The 311 Trice v. Turrentine 257 Tripp V. Curtenius 473 V. Hasceig 100. 103 V. Jordan 547 Triumph Co. r. Patterson 126a Trocon r. Scott, R. 387 Trogdon v. Murphy 138 Trott f. Irish 424 SECTIOX Troubadour, The 441 Trow f. Moody 82 Troy V. Sargent 547 Troy City Bank v. Lanman 451 Troy R. R. Co. v. Newton 490 Trull V. Fuller 113,114 Trustees v. Peaslee 235 Trustees of Free Schools r. Flint 511 Tucker v. Alexandroff 302 V. Bryan 390 V. Spalding 520, 534 V. Taylor 385,386 V. Wilamouicz 279 V. Wilson 407 Tufts V. Shepherd 275 Tulare Irr. District v. Shepard 220a Tupeker r. Deaner 53 Turain r. Gibson 363 Turgrimson r. Piano Co. 271 Turner v. Bissell 178 V. Cameron 113 V. Keller 457 V. Killian 427 V. Richardson 35 V. Sawyer 166 V. Smart 189 V. Wardle 361 Turneys r. Hunt 267 Turnp"ike Co. r. State 243 V. Vanderbilt 213 Turquand v. Marshall 226 Turrill v. Michigan, &c. R. R. 526 Turton f. Benson 81 Tuthill r. Davis 267 Tuttle V. Buck 307 V. Cooper 180 V. Robinson 119 Tuscaloosa Ass'n r. Green 244 Two Ellens, The 391a Tyler v. Boston 526 Tyson f. Blake 140 Tyson r. Bryan 173a V. Jackson 74 V. Post 116 u. Uhl f. Bingaman 193 V. Harvey 193 Ulery v. Jones 50 Ulster Brick Co. v. Murtha Co. 326 Uncas Nat. Bank v. Rich 236 Union. Bank r. Coster 473 V. Hvde 453,455 V. Laird 410,495 V. Magruder 455 V. Oceana Bank 466 TABLE OF CASES. Ixxxv SECTION Union Bank v. Ridgely 224, 228 V. Willis 164 Union Bank of Tennessee V. State 482 Union Canal Co. r. Young 246 Union Institution v. Boston 255,257,259 Union Land Co. V. Gwynn 191 Union Locks Co. v. Towne 490 Union Nat. Bank r. Underbill 188 Union Trust Co. r. McGinty 443a, 459 V. Monticello Co. 477 17. Oliver 499 V. Rigdon 407,408,409 V. Taintor 510 United Ins Co. i\ Seott 212 United Merchants Co. v. Hippo- drome 27a United Shoe Mach. Co. /;. Ramlose 82 United States v. Addison 241 V. Amistad 329 V. Bank of Metropolis 449 V. Berdan Mfg. Co. 532 V. Bostwick 366 V. Curtis 258 V. Gesellschat 214 V. Gratiot 28 V. Hamburg-American Co. 320 V. Hool 397,410 V. Howell 348 V. Kirkpatrick 371 V. Marigold 348 V. Mora 361 V. New Orleans R. R. 386 V. Shea 325 V. Smith 333 V. Winslow 534a United States Bank v. Binney 179 V. Chapin 256 United States Exch. Bank r. Zimmerman 191 United States Express Co. v. Meinto 403 Universal Co. r. Copperman 536 University Club v. Deakin 30 University of Maryland v. Wil- liams 242 Upjohn i\ Ewing 365 Upton V. Lord Ferrers 95 V. Tribilcock 485,515 V. Wallace 81 Urquhart r. M'lver 385 Us'her v. Tucker Co. 467 Ute Indians v. U. S. 263 Utica Ins. Co. r. Tillman 269 Utlev V. Union Tool Co. 220 Utilities Com. t\ Tel. Ass'n 217 V. SECTION Vail r. Hamilton V. Heustis V. Van Doren V. Weaver 232, 486. 509 275 274 113 Valdes v. Altapacia Valentine r. Wood 126a 42b Valton r. National Loan Fund Ass. Society 546, 547, 548 Van Blarconr v. Broadway Bank 403,410 Van Brunt r. Mather 188 Vanderburgh v. Hull 178 Vandergrift v. Forman 16 Van der Velde V. Wilson 271,285,287 Vander Weyden V. Coors 425 Vanderzee r. Willis 407 Vandike v. Rosskam 198 Van Doren v. Olden 143 Van Duzer v. Howe 269 Vane V. Newcombe 380 Van Evera v. Davis 419 Van Gunder V. Coal & Iron Co. 166 Van Heusen v. Radcliff 419 Van Huson V. Kanouse 263 Van Ingen v. Whitman 198 Van Keuren v. Central R. 113 Van Ness f. Layne 526 Van Ness v. Pacard 121 Van Rensselaer V. Jewett 259 V. Platner 35 V. Read 34 Vansands V. Middlesex Co. Bank 501 Van Scotor v. Lefforts 189 Van Schoonhoven v. Curley 79 Vanseat v. Roberts 233 Van Vechten v. Pruyn 453 V. Van Vechten 146 Van Wyck t\ Watters 271 Varley Co. Re 387 Varney v. Curtis 403 Vass r. Wales 30 Vastine r. \\ ilding 473 Vaughan, The 471 v. Davies 383 r. Howe 253 V. Thompson 431 Vaughen i\ Haldcman 122 Vaughn r. Bell 425 Vaux V. Shelfer 382 Veazie /". SonuTbv 305, 309, 425. 44 1 Veazie Bank r. Paulk 279, 283 Vedder l\ Fellows 228 Veiths r. Hagge 253 Vela-*quez, The 328 Vermilye V. Adams' ElxpresS Co. 476, 478 Ixxxvi TABLE OF CASES. SECTION Vermont Ci-ntral R. K. Co. v. CI ayes 489 Vernan v. Smith 30 Very v. Levy 365,366 Vesta, The 316 Vicars r. .?3tna Ins. Co. 551 Victoria Mining Co. r. Rich 166 Vidal V. Girard 235 V. Mayor, &c. of Philadel- piiia 235 Vincennes University v. Indiana 219 Vincent t\ Chapman 511 Vine, The 329 Vineland Co. v. ChandU-r 486 Vinton's Appeal 143, 143a Virgil, The 328 Virginia Co. r. Fi&her 170 Virginia Ehrman, The 328 Vivienne, The 214 Vogt V. Cunningham 109 Volunteer, The 391a Von Hemert v. Porter 263 Voorhies v. Attee 455 Voorhis v. Childs 194 V. Langsdorf 421 Vose V. Eagle Life Ins. Co. 548, 549 V. Singer 162, 166 Vroom V. Ditma-s 281 Vrooman v. Phelps 361 w. Wabash, etc., Ry. v. Illinois 241a Wade V. Bessey 74 V. Johnson 113 V. Withington 462 Wadesboro Cotton Mills v. Burns 255 Wadham V. Postmaster-Greneral 32 Wadleigh v. Janvrin 114,115,116 Wad.sworth V. Allcott 106 i\ Pacific Ina. Co. 531 Wagner v. Buttles 173a Wagner r. Cleveland R. 113 V. Simmon.s 188 V. Watts 419 Wagstaff V. Smith 259 Waite V. Windham, &c. Mining Co. 223, 224. 226, 271 Wakefield v. Fargo 514 i\ Spoon 254 Walburu v. Ingilby 202 Walcott V. Keith 400 Waldo Bank v. Lumbert 188 Wales V. Webb 267 Walker v. Brooks 76 V. Brown 395 r. Flour Mills 121 SECTION Walker c. Hirsch 173 V. Mobile R. R. Co. 490 V. Schindel 124o, 129 V. Sherman 117,121,123 V. Stetson 449,453 r. Stone 437,439,440 V. Taylor 217 V. Tillis 127 V. Vaughn 421 V. Wait 170 Wall V. Hinds 113, 116, 121, 122 Wallace r. Fitzsimanonw 194 V. Loomis 218 V. McConnell 451 Wallace v. Wallace 177 V. Woodgate 380 Wallen r. Rossman 427 i\ St. Louis R. 59 Waller v. Bovi'ling 165 V. Long 267 V. Tate 79 Walley v. Montgomery 321,471 Wallingford v. Burr 185 Wallingsford f. Allen 139 Wallis V. Mease 50 Walnisley r. Milne 113, 115, 117, 124 Walsh r. Lennon i\ Whitcomb Walter r. Froutz v. James V. Steinkopf Walton i\ Mitchell V. Tresten Walworth v. Harris Bank v. Trust Co. Wansbrough i'. Ma ton Warasie r. Radford Ward V. Allen V. Brigham V. Craig V. Duncomibe V. Griswoldville Manuf. V. Morrison V. Smith i\ State i:. Thompson Wardell v. Railroad Ware v. Thompson Wai-field (-. Booth Waring v. Clark V. Henry Warner v. Abbey V. Beers V. Kenning V. Sohn V. Wilson 253. 188 73 271 371 535 50 188 299 227 122 275 448 172 383 78 Co. 512,517 78 ,351,370 50 209 225 268, 285 185 328 253 28 218 116. 124o 100 81 TABLK OF CASES. Ixxxvii SECTION Warrant Finance Co.'s Case 244 Warren r. Batcheldor 7") V. Coal Co. 165 V. Copeliu 78 V. First Nat. Bank 77 V. Oilman 45.1 V. Leland 53, 101 V. Pine 509a V. Queen 508 r. Skinner 360 V. State 50 Warren Co. r. Marey 477 Warrick v. Farlev 49 Wasgatt V. Fir-st'Xat. Bank 82,465 Wa-*h r. Noel 257 Washband i\ Wasliband 256 Washburn v. Franklin 504 v. Green 494 r. Pond 407 V. Sproat 113 Washington and fJregory, Tlie 328 Washington Bank r. Central Bank 227 Washington, &c. Bank r. Farm- ers' Bank 369 Washington Ins. Co. r. Maple Co. 271 Water Comm'rs v. Manchester 222 Waterman r. ^lackenzie 528 Water Power Co. v. Brown 409 Watertown Co. v. Davis 123 Water Witch, The 471 Waterfall r. Penistone 124 \Vaters i\ Barton 298 r. Quimbv 513 Watherell v. Howells 100 Watkins r. Fames 508 Watkin.s Medical Co. r. Hamm 371 i\ Richmond College 371 Watriss r. Cambridge Bank 122, 127 Watson r. Duke of Wellington 389 Watson V. Hamilton 173o r. James 418 V. Mainwaring 549 V. McManus 259 Watt r. Hoch 253 Wattenbarger r. Hall 100 Waugh V. Carver 172,176,178 V. Denham 381 r. Waugli 106 Waverley, The 329 Way r. Davidson 400 V. Fraser 27fl Wayne Co. Savings Bank r. Low 288 Weatherly r. Smith 271 Weaver r. Beard 81 Webb i\ Plniiuner 32 r. Steele 72 c. Stone 419.422 SECTIOX Webber r. Quaw 75 Webber i\ Virginia 518 Web.-ter r. Boddington 146 V. Life A.s.surance Society 253 V. Nichols " 32 i\ Seekamp 212,213 V. Susquehanna Co. 222 V. Upton 499 Weed V. Adams 387 V. Carpenter 456 r. Jewett 77 r. Standlev 425 Weeks i\ Goode 385,386 \V'e€ms V. Weenis 560 U'eeton r. Woodcock 127 Weiland r. Sell 173a Weinstein r. Welden 170 Weiss r. Weiss 165 Weisser r. Mail and 325 Welch V. Mandevilb- 72, 73, 76 V. Sage 476 V. Sockett 161,1 63, 424, 425, 430 v. Wad.* worth 289 V. Whittemore 427 Welchi V. Johnson 38 Weld )\ Cutler 428 V. Oliver 207 Weldon r. Gould 382 Welles r. Cowles 482 Welleslej' Steamship r. Hooper 326 Wells V. Archer 547 V. Evans 188 v. Heath 146 r. March 187 V. Robinsoit 284 r. Wells 401 Wells Fargo Co. r. Jcrsev Citv 2 Wells' Estat(> " " 481 Welsh r. Ebersole 81 V. St. Paul R. 477 Welts V. Conn. M. L. Ins. Co. 5.50 Wendlebone r. Paries 279 Wentworth r. Day 381 Wentworth r. Manhattan Co. 255 \Venz r. Pastcne 27o Wertz r. Barnard 4.34 Westall r. Wood 389 Wescott ''. Delano 101 West r. Blakeway 122 r. Moore 106 West Chester R. r. Jackson 483 West Chicago Works r. Slu'cr 259 West End Tru.st Co. r. Wether- ell 259.263 West River Bank r. Taylor 4.54 Westwtt r. Gunn 426 r. I'otter 75 Ixxxviii TABLE OF CASES. SECTION Western Co. v. Larne 531 Western N. 0. R. f. Deal 113 Western Ry. V. Fo^sher 370o, 371a Western- Union Co. v. Young 299a Western U. T. Co. r. Frear 241a Western Union Tel. Co. v. Lights 281 V. State 262 Westgate v. Wixon 113, 123 Westminster, The 330 Weston f). Penniman 305 V. Wiley 369 West Pub. Co. Re 536 West River Bridge Co. v. Dix 238 Wessels V. Weiss 178 Wetherbee V. Martin 242 Wetherell i\ Spencer 425 Wetmore t\ Neuberger 79 Wetter i\ Hardesty 266, 281 Wheatley v. Waldo 284 Wheaton v. Peters 535,536,538 V. Pike 263 Wheeler r. Bedell 113,114,124 V. Conn. Life Ins. Co. 553 v. Field 451 V. Nichols 429,430 V. Solimer 296 V. Sumner 305 Wheelwright v. Depeys'ter 211 Whelden f. Wilson 421 Whilden v. Merchants' Bank 448 Whipple V. Parker 172, 202 Whisler v. Roberts 427 Whitaker v. Brown 188 V. Hartford R. 256 V. Sumner 400,403 Whitcher v. Dexter 369 White V. Bender 536 i\ Bldg. Ass'n 426 V. Brooklyn 77 v. Brooks 156, 161, 163, 164, 166 i\ Dwyer 271 V. Eiseman 196, 198 V. Friedlander 275 V. litis 263 V. Jordan 366 V. Miller 258 V. Morton 163 r. Osborn 207 V. Stoddard 455 V. Storey 113 V. Thomas Tire Co. 509a V. Walker 259 v. White 146, 148 White's Bank v. Smith 305, 306 White Coal Co. r. Crescent Coal Co. 370a Whitecross Wire Co. v. Savill 333 SECTION White Mountain Bankf. West 431, 437 White Mountain R. v. Eastman 490,491 Whiteside v. Clasis Club 27a White-Smith Co. r. Goff 537 Wihite Water Canal Co. r. Val- lette 236, 271 Whitehead r. Lassiter 148 \\Tiitehonse v. Halstead 325 Whitely V. Allen 455 Whitin V. Paul 401,402 Whiting V. Brastow 121, 128 V. Eichelberger 417 Whiting V. Plumas Co. 366 Whitley V. Bradley 173a Whitman r. Bartlett 167a Whitman i\ Cox 511 Whitmarsh v. Cutting 106 Whitney V. Farrar 438 V. Lowell 427 V. Tibbits 399 V. Wyman 387 Whittaker v. Johnson 80 Whitten v. Harden 275 Whittenton Mills v. Upton 171 Whittle V. Skinner 79 WTiitwell V. Brigham 411 V. Warner 224,511,515 Wickes Bros. V. Hill 124a Wiekliffe V. Eve 194 Wiggin V. Swett 542 Wiggin.s Ferry Co. v. R. 121 Wiggins v. McDonald 77 Wigglesworth r. Dallison 108 Wilamette Co. v. Bank 237 Wilberding V. Miller 143 Wilcocks, Ex parte 223 Wilcox V. Fairhaven Bank 397, 410 V. Murtha 255 V. Wilcox 186 Wilcox Re 146, 193a Wild 17. Davenport 194 V. Passamaquoddy Bank 227 Wilday V. Sandys 143 Wilde V. Jenkins 243 Wilder v. Millard 370a Wilder Co. v. Refining Co. 222 Wildes V. Savage 448 Wildman v. Wildman 68 Wiles l\ Robinson 367 Wilgus v. Gettings 113 Wilhelmi i\ Leonard 428 Wilkins r. Carmiehael 383 V. Gillis 455 Wilkinson r. Bvers 366 i\ Charlesworth 60,483 V. Johnson 449 TABLE OF CASES. Ixxxix Willans v. Ayers Willard r. Rice V. Willard V. Wright Willes V. Green Willet V. Chambers Willett i: Earle Willetts v. Paine Willey v. Warden William r. Wilder Williams Re Williams, The Williams v. Allsup SECTION 443, 44G 431 166a 191 172 172, 188 360 466 366 279 4&1 391a 431 r. Bank of United States 455 l\ Benedict 393 V. Brassell 163, 165 V. Chetham 417 V. Chester R. R. Co. 226 V. Colonial Bank 299 V. Gillies 188 V. Gragg 226 v. Hatch 437 V. Hensman 160 V. Ireland 207,214 V. Jackman 307 r. Kimball Co. 100,421 r. McCormaek 458 V. Milton 173o r. New York Ins. Co. 545 V. Phelps 366 V. Reynolds 275 V. Savage Man. Co. 486 V. State 253 V. Suffolk Ins. Co. 332 V. Uzzeel 370a i\ Weekley 458 V. Williams 52, 146, 147 V. Windley 311 V. Young 426 Williamsburg Knitting Mill Re 126a Williamson r. Culpepper 17 t\ Hine 214 V. Johnson 179 V. Jones 53 V. NeAV Jersey R. 113,116 V. Steele ' 419 I'. Williamson 144 Williamsport Co. r. Bait. & Ohio R. 82 Williard r. Pinard 253 Willings r. Bliglit 209 Will ink r. Morris Canal Co. 236 Willis V. Green 164 v. Sharp 194 r. WhavTie 165 Williston r. Michigan, &c. R. R. Co. 510 Wills V. Sears 321 SECTION Wilson r. Bank of Victoria 332 V. Borstal 315 V. Brannan 437 r. Central Bridge Co. 505 r. Cobb 258 V. Colorado Co. 486,517 t\ Dean 269 V. Edmonds 178 r. Gray 436 V. Guyton 378, 381 V. Heather 384 V. Kirby 274 t\ Lady Dunsany 358 t'. Little 395,399,417,498 V. London, &c. Navigation Co. 320 V. Milligan 426 V. Rousseau 528, 529 V. Seybold 82 i\ Shearer 363 V. Shrader 82 r. Simpson 530 V. Weston 417 r. Whitehead 178 r. Wilson 146 Wilson Co. V. Nashville Bank 477 Wil thank's Appeal 143 Wiltshear r. Cottrell 112, 114 Wimans V. Denmead 532 Winch V. Mut. Ben. Ice Co. 257 Winchester v. Ball 434,437 V. Building Association 255 Winder r. Caldwell 389 Windham Bank v. Norton 455 Wind.sor Co. v. Schenk 491 V. Thompson 82,471 Windus i\ Lord Tredegar 553 Winfield V. Hudson 76 Wing r. Antlionv 529 V. Gray ' 113 V. Harvey 553 Winlock V. Munday 467 Winn V. Ingilby 119 Winner v. Penniman 165 Winship v. Bank of U. S. 176, 177. 188. 189 Winslow r. Bromich 113 V. Dundom 82 Winslow V. ISIerchants' Ins. Co. 114,115,124 Winsor, Ex pnrfr 516 Winter V. Belmont Mining Co. 499 V. Landpliere 419 Wintermute r. Post 440 Wirt r. Stubblefield 283 Wise V. Allis 534 Wiswell r. Baxter 259 Wittkowski r. Smith 451 xc TABLE OF CASES. SECTION Witzt'll r. Berman 529 VVolcott i\ Hamilton 51 Wolf r. Hermann Sav. Bank 126a Wolf l\ Suimners 379 Wolfe V. Childs 165 V. Tyler 76 Wolf Co.' r. Sav. Bank 126a Wolford r. Baxter 124 Wollaston v. Hakewill 35 Wolveridg« r. Steward 34 Womack r. Douglas 165 W^ood f. Bell 307 p. Braddick 193 V. Corl 452 V. Donovan 79 r. Dudley 434 r. Dummer 512 V. Gavnon 125 r. Hewett 113. 117 r. Matthews 417 r. Pennell 179 V. Pha?nix Mut. Life Ins. Co. 547 V. Price 455 V. Scoles 183 r. Sloman 199 r. Steele 462 V. Stockwell 425,441 V. Underbill 526 r. Whelen 123,124 Woo, 95 N. E. 793. 105 Me. 317, 74 Atl. 796 (intent to 8. Alexandria Billiard Co. v. Milo- make a lease overrides technical ex- slowsky, 167 Iowa 395, 149 N. W. 3 33 § 28 THE LAW OF PERSONAL PROPERTY. [part II. § 28. Rent or Recompense under a Lease. The periodical return which the tenant makes to his landlord, — or the lessee to the lessor, — by way of compensation for the use of the premises, is familiarly known as the rent. This compen- sation is not always in money; for specific goods may constitute a valuable consideration to support the lease ;^ while, as in the analogous instance of a bailment, no consideration is requisite to make a lease binding upon the parties themselves, if the relation has once taken effect and does not remain executory.^ At the early common law the tenant frequently rendered military duties by way of recompense, or paid in military supplies ; and in agri- cultural districts a landlord will still take his compensation, not unfrequently, in crops or farm labor.^ But it is questionable 504; Sherry v. Proal, 206 N. Y. 726, 100 N. E. 421. See Smith v. Mitchell, 168 111. App. 36 (execution by one only). See further, Whiteside v. Oasis Club, 162 Mo. App. 502, 142 S. VV. 752; United Merchants Co. v. Hippodrome, 201 N. Y. 601, 95 N. E. 1140 (contract for an advertising sign on roof) ; Addieg v. Tull, 95 N. E. 1123 (N. Y.), 1S7 Fed. 161, 109 C. C. A. 24; Holliday v. Pegram, 89' S. C. 73, 71 S. E. 367 (mere nego- tiation) ; Starvvich v. Washington Cut Glass Co., 64 Wash. 42, 116 Pac. 459; American Tract Soc. v. Jones, 76 Misc. Rep. 236, 134 N. Y. S. 611 (delivery of key insufficient) ; Murphy v. Sohwaner, 84 Conn. 420, 80 Atl. 295; Way V. Eraser, 230 Pa. St. 49, 79 Atl. 154; Thomas v. Springer, 134 App. Div. 940, 982, 119 N. Y. S. 460, 463 (mere contract for gross theatrical receipts) ; Greene v. Messick Grocery Co., 153 N. C. 409, 69 S. E. 412; Brighton Packing Co. v. Butchers' Ass'n, 211 Mass. 308, 97 N. E. 780 (terms modified). For ibreach of a mere contract to lease the expectant tenant may sue for damages. Schultz v. Hastings Lodge No. 50, I. O. 0. F., 90 Xeb. 454, 133 N. W. 846. 9. Lilley v. Fifty Associates, 101 Mass. 432, where the article specified had passed out of use and the lessee was held entitled to sufiicient notice to enable him to procure it. 1. See 77 Tex. 505; Tiedeman Real Prop., § 192. 2. Smith Landl. and Ten. 88 et seq.; Taylor Landl. and Ten., §§ 14, 24, 152, 370; Fry v. Jones, 2 Rawle, 31 (Pa.) ; Jackson v. Bro\\'nelI, 1 Johns. 267 (N. Y.) ; United States v. Gratiot, 14 Pet. (U. S.) 526. See Taylor Landl. and Ten., § 24, and note wibh cita- tions, on the question whether letting on shares is or is not equivalent to a simple agreement to share crops as tenants in common, rather than a lease which reserves rent as such. And see Herskell v. Bushnell, 37 Conn. 36; Strain v. Gardner, 61 Wis. 174; Warner v. Abbey, 112 Mass. 355. The better modern opinion follows the intent of the instrument or contract as to leasing and creating a tenancy or otherwise. 34 CHAP. II.] CHATTELS EEAL. § 29 how far such compensation could be deemed rent at all ; and certainly in our country rent is usually, and in these days almost universally, made payable in money. Persons wishing to avoid those fluctuations in value which occur through the gradual depre- ciation of the gold and silver standard have, however, sometimes bargained for compensation in com, wheat, or some other such staple produce, the practical effect being that the lessee pays in money according to the market value of such produce on each rent day. This mode of payment is much to be commended in long leases, and has been amply justified by the experience of mankind.^ Four points are to be especially noted concerning rent at the common law : First, that it must always be of something issuing out of the thing demised, and differing from it in nature, and not part of the thing itself; which last would be not a reservation, but an exception.'* Second, that it must be reserved out of some- thing to which the lessor may resort for that technical seizure which the law calls a distress ; so that a rent cannot issue out of a right of common, or out of another rent, or in fact out of almost any incorporeal hereditament, however binding the reservation may be as a contract.^ Third, that it must be reserved to the lessor himself, and not to a third party.^ Fourth, that the reser- vation of rent in a lease should be certain; by which is meant that at least the rate can be ascertained and established.^ § 29. Covenants of a Lease. The covenants of a lease next deserve attention, and upon these we shall enlarge somewhat. When we speak of a covenant, in the strict legal sense, we refer to that which, in an instrument 3. See 3 Kent Com. 462. 6. Doe v. Lawrence, 4 Taunt. 43 ; 4. Co. Lit. 142 a ; Doe v. Lock, 2 A. Gates v. Frith, Hob. 130. But see A E. 705; Smith Landl. and Ten. 91. Jewel's Case, 5 Co. 3, as to whether 5. Smith Landl. and Ten. 91; 5 Co. it would not bind as a contract be- 8; Bac. Abr. Rent, B. But to this tween lessor and lessee, though bad rule are some exceptions. See Smith as to the third party. I-.andl. and Ten. 91. Distress for rent 7. See Co. Lit. 142 a; Maude's n. to is disfavored in the United States at Smith Landl. and Ten. 91; Daniel V. this day, Gracie, 6 Q. B. 145. 35 § 30 THE LAW OF PERSO^'AL PROPERTY. [PART II. under seal, corresponds to a promise or agreement in parol under- takings. Of covenants in a lease, some run with the land, while others are only binding upon the person. Some, again, are implied as incidental to the relation of landlord and tenant, while others, on the contrary, must be the subject of express contract in order to be effective. So covenants as affecting one another may be dependent, or they may be independent.^ The usual covenants to be found in a lease for any term of years, at the present day, are these: First, on the part of the lessor, covenants for quiet enjoyment, against incumbrances, for further assurance, to repair, to renew the lease, and to pay taxes and assessments. Second, on the part of the lessee, covenants to repair, to pay rent, to pay taxes and assessments, to insure, not to assign, to reside on the premises, to build after a certain pat- tern, against carrying on certain trades, for particular modes of cultivation, to redeliver fixtures.^ These and similar covenants will vary in different cases according to the length of the lease, the nature and situation of the property, and other circumstances ; nor, of course, are we to expect that every lease must be found to contain all of these covenants, or that parties, when they see fit, may not make further covenants to suit themselves. § 30. Covenants Usual on the Lessor's Part. Let us examine these different kinds of covenants in turn, beginning with covenants on the part of the lessor. The covenant for quiet enjoyment is implied in every lease, and need not be expressed at all ; and if it be broken the landlord must indemnify the tenant against losses resulting from the breach ; for the law takes it for granted that every lessor has both the will and the power to keep his lessee in peaceable possession of the premises, and the whole premises. Whenever this covenant is broken, the tenant is at least absolved from paying rent; but 8. Taylor Landl. and Ten., § 244 et 9. See Taylor Landl. and Ten,, §§ seq.; Bouvier's Diet. "Covenant;" 219-313, and cases cited. 8mith Landl. and Ten. 96. 36 CHAP. II.] CHATTELS RBAI.. § 30 if he claims damage he should show it.^ At the same time, the tenant must do his part, and he cannot expect inednmitj unless he has been actually or — what will answer well enough — con- structively driven from the premises.^ The covenant here implied is not against any and all extraneous disturbance of the tenant, but extends only to the acts of the landlord or of those who assert a paramount title.^ The implied covenant against or for keeping down incum- brances is for indemnity to the lessee, supposing some one, as a prior mortgagee, should take occasion to enforce his rights under an incumbrance, so as to molest the lessee and disturb his peace- able possession."* The covenant for further assurance, which is really implied in the covenant for quiet enjoyment, binds the lessor expressly to perform and execute all such further reasonable acts and writ- 1. Larkin v. Misland, 100 N. Y. 212, 3 N. E. 79; Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082. 2. Holder v. Taylor, Hob. 12 ; Hart V. Windsor, 12 M. & W. 85; Vernan V. Smith, 15 N. Y. 332; Merrill v. Frame, 4 Taunt. 329; Smith Landl. and Ten. 206. As to what will amount to constructive eviction, see earlier and later cases cited in Taylor Landl. and Ten., § 308. And see Bennett v. Atherton, L. R. 7 Q. B. 316; Merry- man V. Bourne, 9 Wall. 592; Dunck- lee V. Webber, 151 Mass. 408, 24 N. E. 1082. There is no implied covenant by the landlord that the premises are tenant- able when let or that their present condition' will be bettered by him; especially when the tenant inspects; unless there is fraudulent concealment by him of hidden defects. Russel v. Clark, 173 HI. App. 461. But as to con- cealment or mistake in a material point ■where tenant has had no opportunity to inspect, cf. Schale v. Butler, 136 N". Y. S. 252. The odor of dead rats in the walls may be so bad as to constitute an eviction and justify the tenant in leaving. Barnard Realty Co. v. Ban^ wirt, 139- N. Y. Supp. 1050. The land- lord may be liable to a guest in a leased hotel for a concealed defect in the elevator of which the tenant knew. Colorado Mtge. & Inv. Co. v. Giacom- inini, (Col.), 136 Pac. 1039. 3. Tiedeman Real. Prop., § 187. See Carthy v. Blauth, 169 Cal. 713, 147 Pac. 949 ; Stewart v. Murphy, 95 Kan. 421, 148 Pac. 609; Kelly v. Mil- ler, 249 Pa. 314, 9^4 Atl. 1055; John- son Co. v. Berlin Works, 87 Wash. 426, 151 Pac. 778 (where an adjoin- ing o^vner obstructed ingress) ; Cal- lahan V. Goldman, 2116 Mass. 238, 103 N. E. 689. 4. See Taylor Landl. and Ton.. S§ 318-.322; 4 Kent Com. 74; Smith Landl. and Ten. 208; Hancock v. Caffyn, 8 Bing. 358. 37 § 30 THE LAW OF PERSONAL PROPERTY. [CHAP. II. ings as may be needful to complete the transfer of the term; or, in other words, to perfect the lessee's title.^ The covenant to repair can never rest upon mere implication; for the common law, with regard to expenses of this sort, pre- sumes so strongly against the lessee, that, even though the premises should be burnt to the ground, he must continue, in the absence of an express covenant to the contrary in his lease, to pay rent, and yet have no power to compel his lessor to rebuild.^ That is to say, the tenant takes the premises for better or worse, and he cannot involve his landlord in expenses for repairs without the latter's express consent/ But our written leases at this day generally provide for the abatement or suspension of rent " in case of fire or other unavoidable casualty " rendering the premises unfit for use and habitation, according to the nature and extent of the injuries, and until the premises shall have been put in proper condition once more, with the further alternative of put- ting an end to the tenancy ; and legislation in many of the United States has so far altered the old and harsh rule as to require the landlord to keep his premises in tenantable condition, or else lose his tenant, who, however, may here in the last emergency repair at his landlord's cost.^ A landlord may expressly covenant to repair, in which case the lessee should notify him when the covenanted repairs become necessary.^ 5. Taylor Landl. and Ten., §§ 323- 8. See Taylor Landl. and Ten., 326, and cases cited; Middlemore v. § 330; Myers v. Burns, 35 N. Y. 269; Goodale, Cro. Car. 503. Block v. Ebner, 54 Ind. 544. 6. Taylor Landl. and Ten., §§ 327- 9. Taylor, § 330; Makin v. Wilkin- 331; Smith ib. 199-201; Miiniford v. son, L. R. 6 Kx. 25; Halpin v. A. F. Bro^^^l, 6 Cow. 475; Sheets v. Selden, Ins. Co., 120 N. Y. 71, 23 N. E. 9'89; 7 Wall. 416. Tiedeman, § 189. 7. Afjreements contemporaneous Partial destruction of the building with the lease, to repair forthwith, does not terminate the lease. Gainer should be carried out. Vass v. Wales, v. Griffith, 85 S. E. 713 (W. Va., 129 Mass. 38. Where one leases 1915). The lease of a building im- rooms in a building, the lessor is im- plies a lease of the land under it. pliedly bound to keep the rest of the See further, Northern Trust Co. v. building repaired so as to protect such Buck, 263 111. 222. 104 N. E. 1114 rooms,. 100 111. 214. (payment of inheritance tax) ; Mon- 38 CHAP. II.] CHATTELS KEAL. § 30 The covenant to renew (which is an express, and not an implied covenant where it exists at all) secures to the lessee a decided advantage, since it gives him the option to stay or to leave when his term expires, according to what may then appear to him the more advantageous, while it binds the lessor to renew the lease on the terms stated if the lessee shall desire it. But in order to hold the lessor, this covenant should be definite and precise in its wording; nor are continued renewals much favored, since they tend to perpetuate incumbrances upon land, and are repugnant to sound policy.^ The covenant to pay taxes and assessments will generally be implied as against the lessor, where the lease is silent; though it is usual, and certainly preferable, for the mutual understanding of the parties to be expressed on this point. A tenant, whose lease does not require him to make such payments, may, if com- pelled by the public authorities, settle the public dues, in order to save a tax sale of the premises, or his eviction, and then set off the payment against his rent.^ Such, then, are the usual covenants on the part of the lessor; and, of these, the covenant for quiet enjoyment, the covenant for further assurance, the covenant to repair, and the covenant to tanus V. Buschmeyer, 158 Ky. 53, 164 fraudulently evaded, Cliristhilf v. S. W. 802; lessor's sole right to can- Bollman, 114 Md. 477, 73 Atl. 208'. eel in case of fire, 27 Col. App. 270, 1. Taylor Landl. and Ten., §§ 332- 14S Pac. 377; Weiss v. Realty Co., 340, and cases cited; Furnival V. 129 Minn. 486, 152 N. W. 869; Crew, 3 Atk. 83; 4 Kent Com. 109, Thomas v. Lane, 221 Mass. 447, 109 and cases cited; Rutgers v. Hunter, N. E. 363 ; Keegan v. Heileman Brew- 6 Johns. Ch. 215 ; Hyde v. Skinner, ing Co., 129 Minnn. 496, 152 N. W. 2 P. Wras. 196. See Eaton v. Lj-on, 877; Herald Square Co. v. Saks, 215 3 Ves. 690; Bank v. Gornto, 161 N. C. N. Y. 427, 109f N. E. 545. Lease of 341, 77 S. E. 222; Kean v. Piano Co., store whose windows projected beyond 121 Minn. 198, 140 N. W. 1031 (exer- 'street line and had to be removed. cise of option inferred from circum- Schlau V. Enzenbacher, 219 Mass. 474, stances) ; Brunswick Site Co. v. Ber- 107 N. E. 354 (fall of ceiling) ; Flood lin Art Co., 154 N. Y. S. 1069 (App. v. Brewing Co., 158 Wis. 638, 149 N. Term, 1915). W. 492, L. R. A. 1915 F. 1101. 2. Taylor Land!, and Ten., §§ 341, See, as to lessee's obligation, in taxes 342 ; Roe v. Hayley, 12 East, 469. 39 § 31 THE LAW OF PERSONAL PKOPERTY [cHAP. II. renew the lease, all run with the land and bind the reversion."' Other covenants of the lessor are often inserted, as not to lease to one in a competing business, and where such a covenant is broken and the tenant leaves he is not liable for future rent.'* § 31. Covenants Usual on the Lessee's Part. Of the covenants on the part of the lessee, some correspond to those on the lessor's part which have just been noticed. The lessee may expressly covenant to keep the premises in repair; and, whether he does or not, the law obliges him to so use the premises that no substantial injury shall be occasioned, unless the lessor has agreed for himself to assume such responsi- bility. While, however, the lessee is by implication expected to keep the leased premises wind and water tight, and to put on fair and tenantable repairs, he need not make good the ordinary ravages of time; unless, indeed, there be an express covenant in the lease, in which case he must conform to its requirements. It is not uncommon to find covenants inserted in leases which sub- stantially put the outside repairs upon the lessor and the inside repairs upon the lessee. Waste on a tenant's part, whether volun- tary or permissive, cannot, of course, be tolerated; and by the very acceptance of his lease, the lessee implies that he will use the premises with reasonable care. Yet good repair is a relative term, and must necessarily vary with the age of the building, the purposes for which it is leased and occupied, and other similar circumstances ; nor should fanciful damage be claimed.^ The covenant to pay rent is necessarily implied from the very nature and relation of a tenancy for years ; yet such a covenant is almost invariably inserted in a lease, notwithstanding the special 3. So does the covenant to pay 5. Smith Landl. and Ten. 188-202 ; taxes. 2 Paige, 68; Tiedeman Real Viner's Abr. Waste; Hart v. Wind- Prop., § 190. But not any collateral sor, 12 M. & W. 77 ; Taylor Landl. and covenant which may be pronounced a Ten., §§ 343-368, and cases cited. See personal obIi<;ation. Makin v. Watkinson, L. R. 6 Ex. 25; 4. University Club v. Deakin, (111.), Ill Mass. 531. 106 K E. 790. 40 CHAP. II.] CHATTELS KEAL. § 32 reservation of rent, besides, in another part of the instrument. Rent is a demand of so very high a nature, that nothing can excuse the tenant from its periodical payment, unless he has been legally compelled to vacate the premises, or the landlord has accepted another person in his stead. Through the unavoidable accidents of fire, flood, and tempest, the premises may become unfit for habitation; yet, as we have already shown, unless the lessor has protected himself by suitable stipulations to the con- trary, or a local statute changes the rule of the common law, our courts have no choice but to hold him to a hard bargain, and make him pay his rent all the same.^ But the implied covenant to pay rent is distinct from that which may have been expressly stipulated in the lease. Of the covenant to pay taxes and assessments we have already spoken, with reference to the lessor; and it only remains to add that, theoretically, the public treats the tenant as the party primar- ily liable for such assessments, and the tax or assessment itself as a charge upon the premises in the hands of the occupant, who is expected, if entitled, to claim indemnity from his landlord, deducting the tax from his rent bills. A special covenant in suit- able words should be inserted in every lease, where the mutual intention is that the lessee shall pay both rent and taxes.^ § 32. Covenants Usual on the Lessee's Part; Subject Con- tinued, The covenant to insure, which is frequently to be found in e. Smith Landl. and Ten. 96, 125; 399; Gabell v. Shevell, 5 Taunt. 81; Taylor ib., §§ 3G9'-394; Holtzapffel v. Stubbs v. Parsons, 3 B. & A. 516; Baker, 18 Ves. 115; Hallett v. Wylie. Smith Landl. and Ten. 98, 99. See 3 Johns. 44 ; Bclfour v. Weston, 1 T. Hughes v. Young, 5 Gill & J. 67 ; Jef- R. 310; Fowler v. Bott, 6 Mass. 63. frey v. Neale, L. R. 6 C. P. 240. See Dyer v. Wightman, 66 Penn. St. Whether under such a special cove- 425; Neal v. Bainbridge, 94 Kan. nant, the lessee should be held bound 518, 146 Pac. 1165; Dagall v. Mann, to pay "betterment" taxes, so called, 89 Conn. 576, 95 Atl. 6 (application cf. Love v. Howard, 6 R. I. 116; of rent payments). ilayor Re, 11 Johns. 77; Pray v. 7. Taylor Landl. and Ten., §§ 395- North Lib., 31 Penn. St. 69; Taylor, 41 § 32 THE LAW OF PERSONAL PROPERTY. [ciIAP. II. long leases involving large sums of money, is one of modern creation, and must be express in order to be binding.^ The covenant not to assign or underlet is an important one, and especially favored by landlords ; since the tenant has a clear right at common law not only to admit sub-tenants but also to transfer the premises to others for his term, as may suit his o\vn conven- ience, putting another in his place while in no wise relieving him- self of liability to his landlord. But the owner of real estate is rather stubborn in insisting upon the right to choose his own tenants ; and hence a well-drawn lease in these days will generally be found to contain an express covenant, upon the lessee's part, not to assign or underlet the premises without the previous written consent of the lessor; a covenant which courts are not disposed to extend very far by construction, as the cases will show.^ Inas- much, too, as this covenant not to assign applies only to voluntary, and not to involuntary, assignments, it is not unfrequent for a lessor to guard against the lessee's bankruptcy or insolvency, by still another special covenant that such bankruptcy or insolvency shall forfeit the lease. ^ Covenants to reside on the premises are rarely met with ; nor, under ordinary circumstances, would it be reasonable for the lessor to exact them.^ The covenant to build after a certain pattern applies usually to long leases which contemplate some § 398, note; contra, Simonds v. Tur- lessor's assent is a "usual covenant," ner, 120 Mass. 188. see Hampshire v. Wiekens, 7 Ch. D. See further, Jesse French Piano Co. 555. Such covenant being for the V. Hallberg, 130 Tenn. 650, 172 S. W. benefit of the lessor only, the assign- 298 (covenant to pay attorney's fee, ment without consent is not void, but etc.). voidable only; nor is a forfeiture 8. Taylor Landl. and Ten., §§ 400, worked thereby, unless the lease so 401; Smith ib. 100; Thomas v. Van expressly provides. Webster v. Nich- Kapff, G Gill & J. 372; Doe v. Peck, ols, 104 111. 160; Eldredge v. Bell, 64 1 B. & Ad. 428. Iowa, 125. 9. Taylor Landl. and Ten., §§ 402- 1. Roe v. Galliers, 2 T. R. 133; 413; Smith ib. 115-119; Church v. Doe v. Clarke, 8 East, 185; Taylor BrOA\Ti, 15 Ves. 265; Doe v. Carter, 8 Landl. and Ten., § 409. T. R. 61; 4 Kent Com. 130. ^Yhether 2. See Taylor Landl. and Ten., a covenant not to assign without the § 414; Doe v. Hawke, 2 East, 481. 43 CHAP. II.] CHATTELS REAL. § 32 extensive improvement bj the lessee.'' The covenant against car- rying on a trade is available for protecting the lessor against certain trades peculiarly offensive, or against business in general. Contracts in restraint of trade are, as a rule, injurious to the interests of the public ; and we should not expect to find covenants in leases which obstruct the beneficial use of leased property con- strued strongly against the lessee; yet landlords may not unrea- sonably take precautions so as to prevent their elegant dwelling- houses from being turned into workshops, and may insist upon securing their real estate against depreciation in value on their tenants' hands, through some injurious use made of the premises contrary to their wishes.'* The covenant for particular modes of cultivation is a character- istic of agricultural leases. Its object is sometimes to enforce the customary mode as to good husbandry, and sometimes to prescribe a special mode, contrary to custom. The lessee of a farm is bound, independently of express covenants, to cultivate the prem- ises in conformity with the reasonable and usual custom of the neighborhood.^ The covenant to redeliver fixtures in good order at the end of the term affords the lessor an ample remedy in case of loss or injury to such articles afiixed to the freehold — for instance, furnaces and ranges — as the lessee may have the right to use while his term lasts, but no longer.^ 3. Taylor Landl. and Ten., § 415; 5. Taylor Landl. and Ten., §§ 420- Mayor v. Brooklyn Fire Ins. Co., 41 423; Roberts v. Barker, 1 Cr. & M. Barb. 231; Roper v. Williams, Turn. 808; Tempest v. Rawling, 13 East, & R. 18. 18; Buck v. Pike, 27 Vt. 523; Webb 4. Smith Landl. and Ton. 101; Si- v. Plummer, 2 B. & A. 746. mona v. Farren, 1 Bing. N. C. 126; 6. Hig-gins v. Whitney, 24 Wend. Doe V. Bird, 2 A. & E. 161; Taylor 379; Perry v. Chandler, 2 Cush. 237. Landl. and Ten., §§ 416,*418, and cases See Rice v. Silver, 170 Iowa, 255, 152 cited; Pierce v. Fuller, 8 Mass. 223; N. W. 498, as to impossibility of per- Chappel V. Brockway, 21 Wend. 157; forming a provision of a farm lease; Wadham V. Postmaster-General, L. R. Hill v. White, 150 Pae. 1051 (Okla. 6 Q. B. 644 19'15) ; In re Place, 224 Fed. 778; To cut a hole in the party wall Owens v. Reed, 36 S. D. 184, 153 N. without permission is waste. Ham- W. 1093 ; Lowe & Pittard v. War- burger V. Sottegast, 131 S. W. 639 bington, 144 Ga. 181, SG S. E. 537. (Tex. Civ. App. 1911). 43 § 34 THE LAW OF PEKSOISrAL PROPERTY. [CHAP. II. § 33. Covenants Usual on a Lessee's Part; Subject Con- tinued. Such, then, are the covenants usual in a lease on the part of the lessee. And it may be added, that the covenants for rent, to repair, to pay taxes and assessments, to reside on the premises, and to cultivate in a certain manner, all run with the land and bind the assignee as well as the lessee himself.'' § 34. Assignment of Lease ; Act of Parties. That privity of estate which exists between landlord and tenant is not confined to the original parties to a lease, but extends to all who may acquire a subsequent interest therein. A contract is or is not assignable ; but estates in land may be assigned. The land- lord can make over his reversion, or the tenant his term; and assignments of this ^rt, like all other kinds of assignment, may be brought about either by act of the parties or by act of the law. An assignment by the landlord is necessarily by deed, since his reversion is an incorporeal hereditament, and, as the phrase goes, lies in grant; and in addition to this, it was formerly requisite, in order to make the assignment perfect, that the tenant should have attorned, or in some way recognized the assignee as his new landlord. But this last troublesome formality was dispensed with in England by Stat. 4 Anne, c. 16, § 9, which made the landlord's assignment valid without any attornment on the tenant's part;- and yet so far respected the interests of the tenant as to save him from being prejudiced by the payment of any rent to the former landlord before he had received notice of the change. The effect of this statute (whosQ» provisions are commonly adopted in the United Stat€s) is to require that notice be given to the tenant before he can be sued by the assignee of his landlord for rent accruing subsequent -to the assignment.^ As to the tenant, he 7. As to the distinction between 169, 96 Atl. 130; Brown v. Linn suoh covenants and those which Woolen Co., 114 Me. 266, 95 Atl. 1037. merely bind the person, see further, 8. See Smith Landl. and Ten. 280, Taylor Landl. and Ten., § 260 et seq. 281: Moss v. Gallimore, Dougl. 279; And see Johns v. Winters, 251 Pa. Taylor Landl. and Ten., § 442; Co. 44 CHAP. II.] CHATTELS REAL. § 34 might formerly have assigned his interest by parol; but the Statute of Frauds now requires all assignments of leases or terms of years to be in writing, and to be signed by the party assigning, or by his agent lawfully authorized for that purpose.^ And we have just seen that the lessee is frequently restrained still further by a covenant not to assign without his lessor's permission.^ The assignee of the lessor has a right to sue the lessee, and vice versa the assignee of the lessee can sue the lessor, upon covenants which touch and concern the thing demised, — that is to say, cove- nants which run with the land, — and upon these alone. This right, so far as concerns assigtiees of the lessor, is recognized in a statute passed during the reign of Henry VIII. ; which statute applied, however, to leases by deed only.^ As to the lessee and his assignee, the common-law rule was, that while the former might transmit his privity of estate, so that such liabilities would run with the land, he could not transmit the privity of contract, but would remain bound by his own covenants.^ Nor could the lessor's assignee, at common law, and independently of later stat- utes, sue or be sued upon the covenants contained in his lease.'* Where a lease has been assigned, there is, during the continuance of the assignee's interest, a duty on his part towards the lessee to pay the rent and perform all the covenants ; but this duty is corn- Lit. 309 b; Van Rensselaer v. Read, 1. Supra, § 32. 26 N. Y. 558; 1 Smith T^ad. Cas. 5th 2. See Smith Landl. and Ten. 284, Am. ed. SOT; Cook v. Guerra, L. R. and Maude's n.; Taylor ib., § 439; 7 C. P. 132. The rule of Stat. 4 Anne Standen v. Chrismas, 10 Q. B. 135. appears to have been in force previ- 3. Thursby v. Plant, 1 Saund. 240; ously in some of our States. Gilbert Taylor Landl. and Ten., § 436 et seq., V. Bell, 15 Mass. 26 ; Perrin v. Lep- and cases cited. per, 34 Mich. 292; Hansen v. Prince, 4. Co. Lit. 215 a; Milnes v. Branch, 45 Mich. 519; O'Connor v. Kelly, 41 5 Maule & S. 411. The Now York Cal. 432. Statutes and thoso of some other 9. Stat. 29 Car. II., c. 3, § 3. By States now give an assi^ee, whether Stat. 8 & 9 Vict., c. 106, such assign- of the reversion or the term, the ben- raents are void at law unless made by cfit of any agreement contained in the deed. See Smith Landl. and Ten. 62, lease assigned. See Taylor Landl. and 282 ; Taylor ib., §§ 427, 437, and cases Ten.. § 441 : 1 N. Y. R. S. 747, §§ cited. 23-25. 45 § 35 THE LAW OF PEESONAL PKOPEKTY. [cHAP. II, mensurate with his interest ; and he may himself assign over, and so avoid all liability for future breaches of covenant, even though he should assign over to an insolvent person.^ Where a void assignment is made, as to a company which does not exist, the term remains in the original tenant.^ § 35. Assignment of Lease; Operation of Law. But a lease may be assigned by operation of law ; as, for instance, where the lessor or the lessee dies, or where either becomes a bankrupt. Where a lessor dies, his personal representativCnS more nearly step into his place as concerns his personal property, than the heir does as concerns his real estate ; for if a man binds himself, his executors are bound, though not named, while this is not so strictly true as respects the heir. Subject to this qualification, we are safe in stating the general rule to be, that the reversion of the lessor is either descendible, and so goes to the heir, who will stand in his ancestor's stead, or it is a chattel and passes to the executor or administrator, who will represent the deceased person/ But where the lessee dies, his interest vests in his executors or administrators alone by virtue of their office; for the term of 5. Smith Landl. and Ten. 29'4, 295; 145 Pac. 826 (forfeiture) ; Moline v. Taylor v. Shum, 1 B. & P. 21; Wol- Portland Brewing Co., 73 Ore. 532, veridge v. Steward, 1 Cr. & M. 644; 144 Pac. 572; Devlin v. Le Tourneau, Smith V. Peat, 9 Ex. 161; Armstrong 122 Minn. 184, 142 N. W. 155 (les- V. Wheeler, 9 Cow. 88; Taylor Landl and Ten., § 449. See Moule v. Gar rett, L. R. 5 Ex. 132. For assign ment see Perkins v. Kir'by, 35 R. I 84, 85 Atl. 648; Oregon-Wash. R. Co V. East Oregon Co., 81 Wash. 617 sor's successor in title bound) ; Katz V. Miller, 148 Wis. 63, 133 N. W. 1091; Ettlinger v. Kruger, 146 App. Div. 524, 131 N. Y. S. 436; Cupples V. Level, 54 Wash. 299, 103 Pac. 430 (no covenant against assigning) ; 143 Pac. 154; McGhee v. Cox, 116 Jones v. Moncrief-Cook Co., 25 Okla. Va. 703, 82 S. E. 701; Hoover v. 856, lO* Pac. 403. Weber, 154 111. App. 263. Landlord 6. Johnson v. Northern Trust Co., may by acts waive a formal consent to 265 III. 263, 106 N. E. 814. assignment or subletting by the lessee. 7. See Smith Landl. and Ten. 298, Cohen v. Todd, 130 Minn. 227, 153 and Maude's n. ; Taylor Landl. and N. W. 531, L. R, A. 1915 E. 846. See Ten., §§ 459-463; Co. Lit. 209 a; further. Fry v. Kilborn, 94 Kan. 52, Lougher v. Williams, 2 Lev. 92. 46 CHAP. II.] CHATTELS REAL. § 35 years is but a chattel, as we stated at the outset, and the heirs, as such, have no immediate concern in the lease. As the personal representative of the deceased lessee, and no more, the executor or administrator may be sued for accrued rents or for past breaches of covenant; and yet the law does not for this make him liable beyond the amount of assets in his hands. But since the personal representative is regarded as a legal assignee of the lease as well as of the term, he ought to make inquiry as to its value before he assumes to act as an out-and-out lessee ; since otherwise he might find himself in the unpleasant predicament of being held answer- able to the lessor for subsequent rents vsdthout the corresponding means of payment. Like other assignees, the executor or admin- istrator may (unless restrained by the covenants contained in the lease) assign over, and thus discharge himself from individual liability, so far as concerns all subsequent rent and breaches of covenant ; ^ or he may surrender the lease if the lessor accepts.^ For breach of covenant by the lessor after the lessee's death the latter's representative sues correspondingly.^ With regard to the assignee of a bankrupt, the rule is that he may take possession of the leased premises, as part of the assigned estate, and assume full control ; but, if he does so, he is expected to bear the burdens as well as to enjoy the benefits of the lease. Here, again, common prudence dictates that the legal representa- tive should make proper inquiries concerning the value of the lease before assuming control ; or, having once made himself personally liable, that he should assign over or surrender without delay when he finds the lease unprofitble. Demands under the lease for rent or otherwise, which accrued prior to the lessee's banlvruptcv, and remained unsettled, would be payable on the usual principles, from the bankrupt's estate in the hands of the assignee.^ As rent 8. Ren Smith Landl. and Ton. 299- Van Rensselaer v. Platner, 2 Johns. 301; Taylor ib., §§ 459-461; Schoul. Cas. 17. Ex'rs & Adm'rs, §§ 223, 353; Taylor 9. Deane v. Caldwell, 127 :Ma83. V. Shiim, 1 B. A P. 21; Wollaston v. 242. Hakewill, 3 M. & Gr. 297; Quain's 1. Smith v. Dodds, 45 Tnd. 432. Appeal, 22 Penn. St. 510. But see 2. Smith Landl. and Ten. 302-306; 47 § 36 THE LAW OF PERSONAL PROPERTY. [cHAP. II. not due is not a provable debt in bankruptcy, it is not barred by the discbarge, and therefore where a lessee under a written lease goes into bankruptcy he still remains personally liable for rent which comes due after the adjudication.^ Bankruptcy does not affect the right of the landlord to evict the tenant or his trustee for non-payment of back rent, but the landlord may waive this right, as by obtaining from the court an order that the trustee shall adopt or renounce the lease."* § 36. Underletting Distinguished from Assignment. Akin to the subject of the assignment of leases is that of under- letting; and we often find that one and the same covenant in a lease provides against either act on the part of the tenant.^ While the assignment of a lease carries the whole interest in the term, an under-lease reserves to the lessee some portion still of that interest, however small it may be. And the material distinction between the two is this : that while a certain privity of estate subsists between the original lessor and the assignee of a lease, so as to render the latter liable on some of the covenants (as we have already noticed), there is no privity whatever between the original lessor and an under-lessee ; for which reason the under- lessee cannot be sued by the original lessor upon any covenant contained in the lease.^ It may be highly consistent with a lease Taylor ib., §§ 456-458, and eases cited; 3. In re Adams, 12 Am. B. R. 367, Turner v. Richardson, 7 East, 335; 130 Fed. 788; In re Roth and Appel, Copeland v. Stephens, 1 B. & A. 593; 24 Am. B. R. 588, 181 Fed. 667; In re Morton v. Pinckney, 8 Bosw. 135. Rubel, 21 Am. B. R. 566, 166 Fed. See Frazin, .Be, 29 Am. B. R. 212, 174 131; contra. In re Hayes, 9 Am. B. R. Fed. 713; In re Benz, 221 Fed. 123. 144, 117 Fed. 879. See Collier on Under the Federal Bankruptcy Law Bankruptcy (10th ed.) 878-. of 1898, § 70, a lease passes to the 4, Durand v. Howard & Co., 216 lessee's trustee in bankruptcy by ope- Fed. 585. See § 70 Bankruptcy Act ration of law, subject to his election as discussed in Collier on Bankruptcy, to take or reject it. Gazley v. Wil- 11th ed. Hams, 210 U. S. 41, 52 L. Ed. 950, 5. Supra, § 32. 20 Am. B. R. IS. The better practice 6. Taylor Landl. and Ten., §§ 16, is for the trustee to formally notify 108, 109, and cases cited; Doe v. the landlord of his election as soon Bateman, 2 B. & A. 168; Doe v. as possible. 48 1 CHAP. II.] CHATTELS REAL, § 38 that the lessee should have a liberal right to underlet, though not to assign.^ § 37. Modes of Terminating a Tenancy. The next topic to be considered is that of determining or put- ting an end to the tenancy of a term of years. There are five ways in which a lease may be terminated : first, by lapse of time ; second, by merger; third, by surrender; fourth, by forfeiture; fifth, by notice to quit.^ § 38. The Same Subject; Lapse of Time; Merger; Surrender. Lapse of time will, of course, put an end to the tenancy of a term of years. For when I take a lease of premises for a definite length of time, or subject to the happening of a certain contin- gency, the lease necessarily terminates, on the general principle of a contract, when the definite period has elapsed or the contin- gency has happened.^ With the expiration of such a lease the tenant's right of occupation ends, and the landlord may resume possession of the premises at once. Merger likewise dissolves the relation of landlord and tenant. Of this quaint topic we need only observe that the doctrine of merger applies where two distinct estates meet in the same person, so that the smaller estate becomes merged or drowned in the larger.^ If I take a lease, and then, before the lease has expired, Byron, 1 C. B. 623-626; Davis v. does not extend beyond the period of Morris, 36 N. Y. 569. the identical lease. Pyle v. Western 7. The lessor's consent to sub- Union Tel. Co., 85 Kan. 24, 116 Pac. letting by his lessee may be inferred 229. from his own acts and the circum- 8. Smith Landl. and Ten. 215; Tay- stances. Batley v. Dewalt, 56 Wash. lor ib.. § 464. 431, 105 Pac. 1029; Moline v. Port- 9. Ludford v. Barber, 1 T. R. 86; land Brewing Co.. 73 Ore. 532, 144 Pac. Ackland v. Lutley, 9 Ad. & E. 879 ; 572. Ellis V. Paige, 1 Pick. 43; Bedford v. A sublessee is chargeable with McElherron, 2 S. & R. 49; Jackson knowledge of the terms of his lessor's v. Parkhur.st, 5 Johns. 128. lease. Doyle v. Scott, 134 S. W. 828 1. 2 Ewell's Bl. Com. 177; Bouvier's (Tex. Civ. App., 1911). A sublease Diet. "Merger." .4 49 § 38 THE LAW OF PERSONAL PROPERTY. [cHAP. II. purchase the premises outright, or inherit them, the lease is at an end ; and this through the operation of merger. But, again, a tenancy for years may be determined by sur- render; that is to say, I may give up my lease with the lessor's sufficient permission. A surrender, or yielding up, may be either express or by operation of lavi. No special form of words is requisite in order to constitute an express surrender, nor is it necessary that the lease should be formally redelivered and can- celled. Anything will suffice which evinces a mutual agreement and assent that the premises be surrendered, followed by an actual yielding up of possession to the landlord. Surrender by operation of law takes place where one does an act, such as accepting a new lease, which would be inconsistent with the continuance of the old term.^ The Statute of Frauds prohibits the surrender of terms of years, or other interests in lands, unless by deed, or note in writing, or by operation of law.^ But much difficulty is experi- enced in laying down the precise extent to which the exception " by operation of law " may be carried."* Inasmuch as the effect 2. Co. Lit. 337 b; Schieffelin v. Car- As to eviction, constructive or cx- penter, 15 Wend. 440; Challoner v. press, see Barnard Realty Co. v. Bon- Davies, 1 Ld. Raym. 402; Taylor wit, 16 Misc. Rep. 464, 135 N. Y. S. Landl. and Ten., § 507 et seq., and 700; Hotel Marion Co. v. Waters, 77 cases cited; Smith ib. 223-233. Ore. 426, 150 Pac. 865; Kelly v. Mil- 3. 29 Car. II., c. 3, § 3. See supra, ler, 249 Pa. 314, 94 Atl. 1055. And § 25. see Sale v. Smith Co.-, 147 Ky. 146, However, an agreement for cash 143 S. W. 737 ; Hollar v. Southern to surrender after a year an existing Bell Tel. Co., 155 N. C. 229, 71 S. E. lease is valid though by parol. Gar- 316. rick Theatre Co. v. Gimbel Bros., 158 4. See Lyon v. Reed, 13 M. & W. Wis. 649, 149 N. W. 385. 285, which comments upon former For lease and option to renew or cases. And see Maude's note to Smith purchase, see Pope v Abbott, 211 Landl. and Ten. 228, where the Eng- MasS. 582, 98 N. E. 512; Compania lish cases are fully cited. For the Mexicana Cemento Portland v. Waite, American decisions, see Taylor Landl. 196 Fed. 227 (Penn.) ; Toomey v, and Ten., §§ 510-516, and notes Casey, 72 Ore. 290, 142 Pac. 621; passim. Henry Phipps Estates v. Tong Phong, Right to renew defined. Leavitt 214 N. Y. 308, 108 N. E. 410; East- v. Maykell, 203 Mass. 506, 89 N. E. man v. Dunn, 34 R. I. 416, 83 Atl. 1056; Briggs v. Chase, 105 Me. 317, 1057. 50 CHAP. II.] CHATTELS EEAL. 39 of a surrender is to terminate the relation of landlord and tenant completely, the legal consequence appears to be that a lessee who has underlet and afterwards surrenders to the lessor loses there- upon all right to hold the under-lessee to his covenants, and to collect the rent that may justly have accrued; while the lessor, on his part, cannot, by the act of surrender, destroy the estate which the , under-lessee had already acquired in the premises. This inequitable condition of things has been remedied in England and some parts of the United States by appropriate legislation.^ § 39. The Same Subject; Forfeiture. Forfeiture likewise determines a tenancy. It is laid down that a tenant commits a forfeiture if he disclaim and deny his land- lord's title; though not where this is by mere word of mouth.^ 74 Atl. 7?6; Callahan Co. v. Michael, 45 Ind. App. 215, 90 N. E. 642. Apart from local statute, where les- see simply holds over after his lease expires, lessor may treat him either as a trespasser or as continuing a tenant on the same terms. The com- mon law infers an intent to renew on the lessee's part, or at least to con- tinue as before. See Lawrence v. Goodstein, 91 Misc. Rep. 19, 154 N. Y. S. 229; Morse v. Brainerd, 42 App. D. C. 448. 5. See Stat. 4 Geo. II., c. 28, § 6; Doe V. Marchetti, 1 B. & Ad. 715; Smith Landl. and Ten. 232, 233; Taylor lb., § 518; 1 Rev. Stats. N. Y. 744; 4 Kent Com. 103; 117 Mass. 357. Extension or renewal of a lease is often by an indorsement on the original lease, duly signed by both parties. The failure t» pay rent due does not operate to terminate the lease; but the lessor must take action. See § 40. Nor can a lessee who has once en- tered dispute his lessor's title with- out first surrendering pos&ession, as well as repudiating. Interurban Land Co. V. Crawford, 183 Fed. 630 (Ala.) ; Dunlap V. Moore, 98 Ark. 235, 135 S. ^Y. 824; Welchi v. Johnson, 27 Okla. 518, 112 Pac. 989. A mere threat to repudiate the lease is inef- fectual. Oliver v. Loydon, 163 Cal. 124, 124 Pac. 731; Green Bay & Mis- sissippi Canal Co. v. Tclulah Paper Co., 140 Wis. 417 122 N. W. 1062; Chicago Terminal Transfer Co. v. Bar- rett, 252 111. 96, 96 N. E. 79^4; Za- briskie v. Sullivan, 80 N. J. L. 673; 81 Atl. 1135. As to abandonment or surrender, see Smith v. Hunt, 32 R. I. 326, 79 Atl. 826; In re Hopkins, 250 111. 372, 95 N. E. 496. 6. Bac. A'br. Leases, tit. 2 ; Doe v. Wells, 10 A. & E. 427; Smith Landl. and Ten. 233, 234 ; Taylor ib., §§ 488- 501. 51 § 40 THE LAW OF PEKSONAL PKOPERTY. [pAET II. The old common law was very strict with respect to forfeiture; more so than courts of the present day would bo likely to rule. But, besides this sort of forfeiture, there is another, which occurs whenever some condition has been broken in a lease which reserves to the lessor the right to re-enter thereupon and repossess himself of the premises. Such conditions are rather strictly construed ; and it is held that no re-entry can take place for mere breach of covenant, as in neglecting to pay rent, unless the lease clearly provides for re-entry and forfeiture in such a contingency. And the lessor waives the forfeiture, by accepting rent after any par- ticular breach of covenant, or by other acts evincing an intention on his part to let the lease continue ; though it is otherwise where the cause of forfeiture is a continuous one.^ § 40. The Same Subject; Notice to Quit; Modes. Lastly, a tenancy is terminated by a notice to quit, given in a regular manner and under suitable circumstances. Notice to quit is necessary to terminate a general tenancy at will, or from year to year, or any other uncertain tenancy not at suiferance ; ^ which last species of tenancy arises where one lawfully comes into pos- session, but holds over wrongfully after his interest has deter- mined.^ But it does not apply to a lease for years. Thus, if I have a lease for five years, I am not entitled to a notice at the expiration of that period; for I have no right to remain longer, since lapse of time, as has been shown, is enough to put an end to the lease. ^ But if, as frequently may happen, the landlord by 7. Doe V. Woodbridge, 9 B. & C. 8. Taylor Landl. and Ten., §§ 466- 376; Doe v. Jones, 5 Ex. 498; Stuy- 48T; Smith ib. 234-249. vesant v. Davis, 9 Paige, 427; Taylor 9. 2 Ewell's Bl. Com. 150; 4 Kent Landl. and Ten., §§ 488-501, and cases Com. 116. In some States a tenant cited. See Toleman v. Portbury, L. R. at sufferance must be served with a 7 Q. B. 344; Cox v. Title Guarantee notice to quite, unless he is actually & Trust Co., 198 Fed. 275 (U. S. or by implication a trespasser. See D. C.) ; Perkins v. Kirby, 35 R. I. Taylor Landl. and Ten., §§ 64, 65. 84, 85 Atl. 648; Archdeacon v. Cin- 1. Supra, § 38. cinnati Gas & Electric Co., 76 Ohio St. 97, 101 N. E. 152. 52 CHAP. II.] CHATTELS REAL. § 40 some act manifests his consent for me to occupy the premises longer, though no new lease be made out, I shall then become a tenant from year to year, or quarter to quarter, or other appro- priate period for paying rent, and must be served with a proper notice to quit before he can bring an action of ejectment against me or otherwise regain possession of the premises. The right of notice to quit is reciprocal, and it can be given by the tenant as well as his landlord.^ Thus, to continue the illustration, if I, as a tenant from year to year, or shorter rent-paying period, desire to leave, rather than the landlord to have me go, it is my duty to serve a proper notice of intention to quit upon him before I can relieve myself of the obligation of a tenant. A notice to quit can, of course, have no effect upon an outstand- ing lease for years. It need not be given where no tenancy exists or where there is no privity between the parties; nor in case of forfeiture. And it is dispensed with whenever the premises have been regularly surrendered by the tenant, and that surrender accepted by the landlord.^ The rule concerning the time when a notice to quit should be given is a very important one, and gives rise to much litigation ; but in general, for tenancies not yearly or the modern estates at will, it is that period which intervenes between successive rent days; while for yearly tenancies, which are so common in Eng- land, the law requires a notice of at least six calendar months, ending with the period of the year at which the tenancy com- menced. The notice to quit may either specify the particular day to quit, or in general language refer to it by the date of the writ- ten notice as from a next ensuing rent day to the end of the year, quarter, or month, as the case may be ; but the latter form seems 2. Taylor Landl. and Ten., § 470; of the lessee pays rent and holds over Hall V. WadsAvorth, 28 Vt. 410. after the expiration of the orijrinal Where the tenant holds over after term he is only a tenant at will, the expiration of his lease he is pre- Taylor Landl. and Ten., § 525; Slimed at common law to be a tenant Dietriok v. O'Brien, 122 Md. 482, from year to year, although in many 89 Atl. 717. jurisdictions he is a tenant at will, 3. Taylor Landl. and Ten., §§ 471, but in any event, where the receiver 473; Smith ib. 221, 235. 53 § 40 THE LAW OF PERSONAL PROPERTY. [PART IL preferable, since the exact daj when a tenancy expires is still a matter of some legal uncertainty. In the United States the whole subject of notice to quit is largely controlled by local statutes, which the practising lawyer should very carefully consult when he wishes to know how to advise his client in any particular case."* Notices to quit are usually required to be in writing; and while in essentials the notice should be explicit, yet it receives a liberal construction in the courts, provided that in other respects its language be such that the party receiving it could not well misunderstand the mean- ing,^ The notice should be given in the name of the landlord or of the tenant himself, as the case may be, or of some agent prop- erly empowered, and it should be addressed to the party with whom the privity of contract or estate exists; and the service should be made, if possible, upon that party himself. But this rule has its reasonable limitations ; and it is deemed of more importance to show that the party to be warned actually received a notice sufficiently clear, than that formalities were strictly com- plied with. As regards joint-tenants, the address to both being suitable, the rule is that service upon one will suffice ; and in case the tenant is a corporation, notice should be delivered to the proper managing officer or officers.^ The right to take advantage of a notice to quit — or to follow it up, as one might say — may be waived like any forfeiture ; so, indeed, may one notice be consid- ered as superseded by another subsequently given; the law pre- suming in all such cases that the party meant at first to put an end to the tenancy in accordance with the terms of his notice, and then changed or modified his intention.^ 4. Taylor Landl. and Ten., ?§ 475- 6. Taylor Landl. and Ten., §§ 479- 480, and cases cited; Smith ib. 234; 481, 484; Smith ib. 240; Doe v. Doe V. Koightley, 7 T. R. 63 ; 4 Kent Woodman, 4 East, 228 ; Doe v. Gold- Com. 113, and notes, latest ed.; win, 2 Ad. & E. 143 ; Doe v. Watkins, Kemp V. Derrett, 3 Camp. 511. 7 East, 551. See Liddy v. Kennedy, 5. Smith Landl. and Ten. 238, 239; L. R. 5 H. L. 134. Taylor ib., § 483; Doe v. Jackson, 7. Doe v. Humphreys. 2 East, 237; Douff. 175; Doe v. , 4 Esp. 185; Doe v. Palmer, 16 East, 53; Good- Currier V. Barker, 2 Gray, 224. right v. Cordwent, 6 T. R. 219 ; Prin- 54 CHAP. II.] CHATTELS REAL. § 42 § 41. Contingent Modes of Terminating a Tenancy. There are likewise contingent modes bj which a tenancy may be determined; as, for instance, where the premises are taken by government for public use; or (in case apartments are leased, and not a whole house, to a certain party) where the building is burned down ; or, conformably to expressions in the lease, in case of unavoidable a(?cident rendering the premises uninhabitable; or, finally, where the leased premises are used by the tenant for some immoral purpose, — for in that case the public must interfere even though the landlord do not.^ Leases must be made for some legal purpose, and if the landlord lets property for an illegal use, where he knows of such intended use, he cannot recover rcnt.^ § 42. Mutual Rights of Lessor and Lessee; Distress, Ejectment, etc. We need not here dwell upon the consideration of the mutual rights and remedies of lessor and lessee during the continuance of a term for years and consequent upon its determ^ination. These matters belong properly to treatises on the law of real property, and particularly of landlord and tenant. It is sufficient to observe, in passing, that the most interesting common-law reme- dies of a landlord are those which aid him in getting his rent, where the lessee proves an unworthy tenant ; and these are, in particular, the process of distress (a most suitable word for a procedure which gave the landlord undue advantage), by which one seizes his tenant's goods and chattels, and applies them in satisfaction of his demands ; and that of ejectment, by which the die V. Anderson, 19 Wend. 391; Smith Ten., §§ 519-522, and ea?es cited; Landl. and Ton. 241; Taylor lb., §§ McMillan v. Solomon, 42 Ala. 356. 485, 486, and cases cited. See Deady 9. Ralston v. Boady, 20 Ga. 449'; V. Nicholl, 4 C. B. N. S. 376; Tay- Berni v. Boyer, 90 Minn. 469. 97 leur V. Wildin, L. R. 3 Ex. 303. N. W. 121; see, however, Ashford 8. Mill V. Baer's Executors, 24 v. Mace, (Ark.), 146 S. W. 474. to Wend. 454; Graves v. Berdan, 26 the effect that mere knowledge of N. Y. 498; Girardy v. Richardson, 1 intention will not bar recovery. Esp. 23. And see Taylor Landl. and 55 § 42a THE LAW OF PERSONAL PROPERTY. [PART II. landlord is enabled to re-enter upon the premises and turn out a refractory occupant. Public sentiment, in these later years, is directed strongly against the harsh process of distress in American law; the disposition being to place a demand for rent more upon the footing of ordinary debts, and to make an unfortunate man's small household goods exempt from attachment, seizure, and exe- cution, altogether ; yet it regards with such favor remedies on the ejectment plan, that we find both English and American local statutes conferring upon landlords the right to a new and summary process for getting rid of obnoxious individuals upon the premises.^ As to the tenant, the law gives him suitable remedies for his protection against the forcible and unwarranted intrusion of a landlord, and against the wrongful seizure of his property, at any time during the continuance of the testimony; and, upon its dis- solution, the right of taking away in certain cases the growing crops, or emblements, and of carrying off his fixtures.^ § 42a. Leases Follow General Rules of Contract. The general rules of contract apply in the construction of leases. In all such agreements the essentials are considered — the mutual- ity of responsible parties, freedom from fraud, mistake or vital error, and the like."' So, too, illegality or violation of the law 1. See Taylor Landl. and Ten., cs. and admirable method; but the work 13, 14, 16; Smith ib. lectures 5, 6, 8. needed his o\\ti careful revision to 2. Taylor Landl. and Ten., cs. 12, make it all that it should have been, 15 ; Smith ib. lees. 7, 9. The Ameri- even as an elementary outline. Among can practitioner will find John N. the more voluminous English •works Taylor^s Landlord and Tenant his on this branch of law are those of most useful and compendious text- Comj-n and Woodfall. book upon this important branch of 3. Forfeiture or other harsh terms law, which we have only touched upon and conditions imposed by the lease so far as seemeJ pertinent to our are construed against the lessor in present subject. See also H. G-. case of doubt. Conneaut Lake Ice Wood's Landlord and Tenant, a work Co. v. Quigley, 225 Pa. 605, 74 of later date. The published lectures Atl. 648; Hilsendegen v. Hartz of the late John William Smith, of Clothing Co.. 163 Mich. 255, 130 England, on the same topic, are N. W. 646; In re Larkey, 214 Fed. marked by his usual clearness, ele- 867 (N. J. D. C. 1915). See Leh- gance of style, aptness of illustration, meyer v. Moses, 69 Misc. Rep. 416, 56 CHATTELS REAL. § 42b CHAP. II.] vitiates, as in ^^^^^ ^ , ^ .„. should always be presumed an ingredient intended by the parties. A lease plainly expressed in '' " ■ ■ ' • - ^ evidence.^ contracts generally; and the existing local law R ^resumed an ingredient intended by the parties.'* writing is not to be varied by parol § 42b. Leases of Office or Apartments. In our cities at the present time many buildings are constructed for office business or home apartment use, with heating, lighting, water or elevator service furnished by the lessor; and all cove- nants of this kind, as well as those expressed or implied for ingress, egress and other needful facilities for the lessee, receive a just and reasonable interpretation and enforcement in the courts.^ The rights of one such tenant are subject to the rights of others on the same premises. 127 N. Y. S. 253 ("waste") ; Henry Rahr's Sons v. Buckley, 159 Wis. 589, 150 N. W. 994. Modification or cancellation of a lease requires mutual consent, but mutual consent may accomplish clianges. See Rhodes v. Downing, 13 Ala. App. 494, 68 So. 788 (contract to purchase the premises). 4. As to fraudulent concealment by lessor, see Norris v. Faddcn, 159 Mich. 424, 124 N. W. 54; Flanagan V. Welch, 220 Mass. 186, 107 N. E. 979. As to fraud by lessee .see Christ- hilf V. Bollman, 114 Md. 477, 79 Atl. 208 (purchasing tax title). As to use of premises for immoral purposes, see Kelly v. Williams, 162 III. App. 571. As to building ordinance, etc., see Kiernan v. Music Co., 229 111. 494, 82 N. E. 410. Among special covenants on a lessor's part, see Central Business College Co. v. Rutherford, 47 Col. Col. 277, 107 Pac. 279 (racial restrictions in using a hall). As to lease regarding the sale of liquor, etc., see Fort Worth v. Fair Association, 103 Tex. 24, 122 S. W. 254; Hooper v. Mueller, 158 Mich. 595, 123 X. W. 24; In re Bradley, 225 Fed. 307 (Ala. D. C. 1915) ; Kahn v. Wil- helm, 118 Ark. 239, 177 S. W. 403. As to the right to put up electric signs, etc., see Forbes v. Gorman, 150 Mich., 291, 123 N. W. 1089; May v. Breunig, 120 N. Y. S. 98 (App. Term, 1910). A landlord can sell leased premises subject to the lease. Peterman v. Kingsley, 140 Wis. 666, 123 N. W. 131; Mulvey Mfg. Co. v. McKinney, 184 111. App. 476. But see Neal v. JefTerson, 212 Mass. 517, 99 N. E. 334. 5. Diederich v. Rose, 228 111. 610, 31 N. E. 1140. 6. Such provisions usually run with the land. See Storandt v. Vogel & Binder Co., 140 App. Div. 671, 125 N. Y. S. 568 (furnish power and heat) ; Springer v. Bingham's Son Mfg. Co., 151 111. App. 556; Bryant 57 § 43 THE LAW OF PERSONAL PKOPEETY. [PART II. § 43. Terms of Years in English Sense of Trust Arrangements ; Mortgage of Terms. We have thus gone over the main points of the law concerning terms for years ; meaning, by this, contracts for the possession of land during a specified time, which carry the recompense of rent. But, as we have said, the law also contemplates terms for years in the sense of trust arrangements which merely serve as a species of security for borrowed money. Such terms for years are of little or no consequence in this country ; but as they constitute an important feature in the property system of England we may give them a passing notice. The object of such terms being, on the one hand, to enable the security to be realized, as far as possible, and on the other to leave the ownership of the land with the per- son who borrows, subject to the satisfaction of the debt, the custom is for a long term of years to be created by instrument, say one thousand years, — which, the reader will bear in mind, is at the common law but a chattel, and personal property. This term is vested in trustees, upon trust out of the rents and profits of the premises, or by sale or mortgage for the whole or any part of the V. Auchmuty, 129 N. Y. S. 471 (App. 107 N. E. 945 (keeping stairway in Term, 1911), (fixtures); Flana- repair); Follins v. Dill, 221 Mass. gan V. Welch, 220 Mass. 186, 107 93, 108 N. E. 929 ; O'Hanlon v. Grubb, N. E. 979; Kelly v. Brewing Co., 86 38 App. D. C. 251, 372 (heat and N. J. L. 471, 9'2 Atl. 282; Callahan elevator service) ; Cushier v. j^dams, V. Goldman, 216 Mass. 238, 103 N. E. 76 Misc. Rep. 219, 134 N. Y. S. 561. 689; Globe Assn. v. Brega, 190 111. See as to letting furniture, Mor- App. 60 (recouped by lessee); White genthau v. Ehrich, 77 Misc. 139; 136 V. Beverly Bldg. Ass'n, 221 Mass. 15, N". Y. S. 140. And see Valentine v. 108 N. E. 921 (common stairway) ; Wood, 59 Misc. Eep. 471, 110 N. Y. Epstein v. Dunbar, 221 Mass. 579, S. 990 (keeping roof tight) ; Ashton 109 N. E. 730 (entrance) ; Oleson v. v. Margolies, 72 Misc. Rep. 70, 129 Fader, 160 Wis. 472, 152 N. W. 290 N. Y. S. 617 (contract for board and (storage rooms) ; Follins v. Dill, 221 rooms distinguished). Mass. 93, 108 N. E. 929 (elevator). As to the innocent purchaser from And see Streep v. Simpson, 80 lessor without knowledge of the lease- Misc. Rep. 666, 141, N. Y. S. 863 hold estate, see Williams v. Young, (bedbugs from another flat) ; Mathews 78 N. J. Eq. 293, 81 Atl. 1118. And v. Livingston, 86 Conn. 263, 85 Atl. see Starr v. Church, 112 Md. 171, 76 529; Shea v. McEvoy, 220 Mass. 239, Atl. 595 (merger of leasehold). 58 CHAP. II.] CHATTELS REAL. § 43 term, to raise and paj the money required, as it may become due, and upon trust to permit the owners of the land to receive the residue of the rents and profits. By this means, as Mr. Williams observes, the parties to be paid have ample security for their money ; for not only have the trustees the right to receive on their behalf (if they think fit) the whole accruing income of the prop- erty, but they may at once dispose of it for one thousand years to come, — or whatever the term's length. On the other hand, the feelings of the owner are consulted. Until the time of payment comes, he may receive the rents and profits by virtue of the trust ; and where part of the rents are required for the purposes of the loan, the trustees must pay the residue to the owner. But, should non-payment by the owner render a sale necessary, the trustees will be able to assign the property or any part of it to a purchaser for the term in question without rent. Yet until these measures have to be enforced, the ownership of the land, subject to the satisfaction of the debt secured, remains as before.'' Under such circumstances we find that there is a loan of money made upon collateral security ; this security being a chattel inter- est, namely, a term of years. The trustees, to whom the term has been granted, have an inferior interest in the land, less than a free- hold ; and all this time the borrower retains the legal seisin, so that he may convey the land, or devise it by will, or it may descend to his heir. But this term remains outstanding; and whenever there is default in paying over the money, the trustees come in and interfere with the beneficial enjoyment of the lands and tene- ments, whoever may be the nominal owner for the time being. The security must respond for the debt until the debt be cancelled. A certain proviso, known as cesser, is, however, generally inserted in such deeds of trust, so that the term may cease as soon as the loan has been paid off, and the objects of the trust are fully accom- plished. Hence, though the lease run for a thousand years, there may possibly be a very speedy collapse.^ 7. Wms. Real Prop. 22d Eng. ed. 8. Wms. Roal Prop. 22d Encr. ed. 545; Sugd. Vend, and Purch. 13th ed. 546. And see further, ib. 380-388, 508. and 4 Kent Com. 86-93, as to other 59 § 44 THE LAW OF PERSONAL PKOPERTY. [pART II. Transactions of this sort, then, constitute a species of mortgage ; and it is said that the custom of mortgaging terms of years originated in the doubt once entertained by conveyancers (though now known to be without foundation), whether a mortgage of real estate would not subject the property mortgaged to dower, and the like incidents on the mortgagee's part.^ § 44. Whether Mortgages Are Chattels Real. Some, indeed, might be disposed to class all mortgages affecting real estate with chattels real; though not, we think, with pro- priety. For every mortgage transaction consists of two elements : first, the money debt thereby created, which is plainly a chattel personal; and, second, the security given, which may be either a chattel personal — as in the case of a mortgage of household furniture, or of a ship — or (as we have just seen) a chattel real; or real estate, which is no chattel at all. And the doctrine of equity, which regulates real-estate mortgages at the present day, is that the mortgage debt is simply a sum of money loaned upon the security of the land; that before foreclosure and sale, — which in the great majority of cases need not actually take place at all, — the fee of the land, with the right to enjoy rents and profits, still continues in the borrower or mortgagor; and hence that the lender has, meanwhile, simply a chattel personal in the debt, and the mortgage note which represents that debt.^ But the common law regarded a real-estate mortgage rather as an absolute conveyance of the land, subject to an agreement for reconveyance, on a certain given event, namely, the payment of the money borrowed; and such, perhaps, is still the usual literal tenor of a mortgage deed. Hence writers were fonnerly in the habit of classing mortgages with estates in land upon condition; technical methods of getting rid of even in England under the Convey- such incumbrances, as by a merger ancing Acts of 1881 and 1911. See in the freehold. And see Stat. 8 & 9 Williams on Real Property 22d Eng. Vict., c. 112. Ed. 567-577. 9. 3 Ewell's Bl. Com. 158. This 1. See chapter on Mortgages, infra. form of mortgage has been displaced 60 CHAP. II.] CHATTELS REAL. § 44 under which aspect of the law a mortgagee certainly might be thought to have an interest somewhat analogous to a chattel real. And the designation " chattels real " was not ill applied to Welsh mortgages, estates by statute merchant or statute staple, estates ';oy elegit, and the like, — all of which have passed into oblivion since Blackstone's day ; these being regarded as conditional estates in the creditor, for whoso benefit the lands were sequestered or withheld from the true owner until a debt should become fully satisfied.^ 2. See 2 Ewell's Bl. Com., c. 10. 01 CHAPTER III. CHATTELS PEKSOXAL. § 45. What Are Chattels Personal. The term " chattels personal " or " personal chattels," as the reader will gather from what has already been said, applies to what is, strictly and properly speaking, movable property, or that property which is capable of being put in motion and taken from place to place. Not only cattle, wagons, household furniture, clothing, jewels, provisions, and such other things of a domestic character as are moved about w^hen a man changes his abode, are chattels personal ; but ships, cars, locomotive engines, and the like, which one naturally associates with extensive business opera- tions, and not with the portable convenience of individuals. Money is a chattel personal ; and so are those other species of property whose value we so constantly express by reference to the money standard, but which of themselves are only incorporeal rights to be satisfied in money; such as insurance policies, life annuities, legacies, and distributive shares, patent-rights and copy- rights, shares in stock companies, bank deposits, and even bills and notes and negotiable instruments generally. All debts and claims to be satisfied in money are, indeed, chattels personal; whether the debt be unsecured, or aided by lien, pledge, or mort- gage ; and whether the claim arise upon a contract, or be for damages, liquidated or unliquidated, by reason of some injury sustained. Whatever chattel is not a chattel real is a chattel personal ; and hence, to recur to common-law distinctions once more, every spe- cies of property which lacks the two characteristics of real estate — to wit, immobility as to place and indeterminate duration as to time — and which is not annexed to real estate, is, and can be, nothing more nor less than a chattel personal.^ 1. See §§ 6, 7. 62 CHAP. III.] CHATTELS PERSONAL. § 47 § 46. Significance of the Word " Personal " in This Connection. The choice of two reasons for the application of the word " per- sonal " to chattels, in this connection, is given the reader by Coke : " because, for the most part, they belong to the person of a man, or else for that they are to be recovered by personal actions." ^ Blackstone selects of these the former and more nat- ural reason.^ But Mr. Williams, who has taken pains to examine the doctrine of chattels in its historical development, submits that the latter reason is most probably the true one.'* Regarding the wants of a philosophical classification as paramount to all anti- quarian niceties, we shall prefer to avail ourselves of the choice of reasons afforded by Coke, and to choose the more appropriate. We say, then, that the word " personal " is properly applied to chattels of this description, because of the facility with which they may be carried so as to attend the person of the owner. They are movables, in fine ; and were it not for chattels real, which consti- tute another species of personal property, we might always use the expressions " chattels personal " and " personal property " as synonymous. § 47. Corporeal Chattels First to be Considered ; Next Chattels Incorporeal. We now proceed to treat of chattels personal, in the present chapter, under the two leading heads of corporeal and incorporeal. Such things as one may see or touch — in other words, those which are the objects of the bodily senses — are corporeal; and such as cannot be seen or touched, but have only an ideal or abstract existence, — or, as the civilians had it, those which are only rights, — are incorporeal. It should be borne in mind that the corresponding classes usually made by our common-law ^\Tit- ers are those of choses (or things) in possession, and choscs (or things) in action.^ 2. Co. Lit. 118 b. 4. Wms. Pers. Prop. 17th Eng. ed. 5. 3. 2 Ewell's Bl. Com. 16, 384. 5. See supra, c. 1. 63 § 48 THE LAW OF PERSONAL PROPERTY. [pART II. § 48. Corporeal Chattels; Animals, Tame and Wild. And, jirst, as to those chattels personal which are of a corporeal nature, or things in possession. Among these, animals occupy a prominent place in the affections of mankind, as the subject of property ; the word " animal " embracing all beings, not human, which live and move.^ Animals are movables in a double sense; for not only can they be carried from place to place, but, unlike other chattels, they have the power of voluntary motion,^ they can move themselves. i!^ot only the law of England, but that of nature and of all civilized nations, distinguishes living animals, regarded as the subjects of ownership, into two leading classes : the one consisting of such animals as are tame, domitce; the other of those which are wild, ferce naturoe? To the former class belong what we call domestic animals, like horses, cattle, sheep, and poultry. In ani- male domitce one may have an absolute property as in ordinary chattels, — that is to say, he may own them absolutely, — just as much as he may the hay, corn, or other fodder which he gives them to eat. For, to use Blackstone's words, they continue per- petually in his possession and occupation, and will not stray from his house and person unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property.^ Perhaps, however, it would be better to say that, being tame animals, they are not at liberty to stray from the original owner, or to transfer the title in themselves of their own will to others. In animals ferce naturce, or wild animals, on the other hand, whether worth owning, or, like vermin, valueless, one can have no absolute property or right of ownership while they are in the state of nature. They do not remain willingly in any one's pos- session and occupation, else they would not be wild animals at all. So long as they continue at large, untamed and fierce, they are 6. See Bouv. Diet. "Animal." 8. 2 Swell's Bl. Com. 309; 2 Mod. 7. 2 Ewell's Bl. Com. 390; 2 Kent 319. A domestic animal is in its Com. 348 ; 2 Burge Col. and For. owner's possession when in its accus- Laws, 12, 20. tomed range. Jones v. State, 3 Tex. App. 398. 64 CUAP. III.] CHATTELS PERSONAL. § 48 not the subjects of ownership : thej belong to a person only while they are in his actual keeping and under his control; and if at any time they regain their natural liberty, with or without his consent, his dominion instantly ceases, they return to the com- mon stock, and any one has the right to seize and appropriate them afterwards, if, at least, he do so by an act not wrongful.' And this is why the civilians have asserted that wild animals are not possessed per se, but because of the place which the owner of the estate has provided for them.^ Yet an animal, once wild, may have changed its habits and become tame; and then the rule of domitoe will apply to determine the rights of ownership. ^Natural liberty, the reader has perceived, are words applied in this distinction between tame and wild animals. The theory of the law appears to be this: that in a state of nature, all animals have a sort of liberty, which is inconsistent with the condition of being held in serv'itude and possessed or owned by man; that this natural liberty is, nevertheless, something which man may in any instance lawfully disregard, by bringing the animal into subjection to himself; that when this subjection is merely a forci- ble one, so that the animal might be considered as compelled to remain and obey against its will, this natural liberty is suppressed and not extinguished, and a man's right of property is qualified, lasting only so long as he can keep the animal under control ; but that when the animal, by becoming tame or reclaimed, is con- sidered to have voluntarily surrendered its natural liberty, it thereupon becomes the subject of absolute ownership, and so remains ever after; for its natural liberty is finally extinguished. And the offspring, being born into the state of servitude, and brought up with mankind, are at least presumed to have no natural liberty, and can likewise, if not returning to a wild state, be owned absolutely. The wild animal has some spark of natural liberty; the tame animal has none. 9. 2 Bl. Com. 39-1-394; 2 Kent 1. Pothier, tit. Chose3, part 2, § 1 ; Com. 348, 349 ; Blades v. Higgs, 11 2 Burge Col. and For. Laws, 12. H. L. C. 621; Bouvier's Diet. "Ani- mal." 5 G5 § 49 THE LAW OP PERSONAL PROPERTY. [pART II. § 49. Animals, Tame and Wild; Subject Continued. It would be found difficult to determine with precision what animals, on general principles, are wild and what are tame. From their long and intimate association with mankind, we pronounce the horse, the dog, the sheep, the ox, and other creatures which are constantly found in and about our homes, to be tame animals ; domestic animals thej are often called. Yet some naturalists assert that even these owe their docility only to the hand of man which tamed them, and that all animals were originally wild ; ^ a doctrine consistent with the theory of natural liberty, and one which the Latin term domitoe applied to tame animals of itself indicates. Grotius seems to have thought otherwise ; for he says that the reason why some creatures fly and avoid us is not the want of gentleness and mildness on their side, but on ours."' All that may fairly be affirmed is, after all, that wild creatures exhibit a more intractable, a more rough and stubborn disposition, than the tame."^ And the common law, wisely avoiding theoretical discussions on this point, refers the question whether an animal is wild or tame, in each case, to our knowledge of its habits and those common in the same species, as derived from human experi- ence and all the circumstances of the case.^ In wild animals one may acquire a qualified or special prop- erty by occupancy alone ; for it is enough to catch and keep, so that the creature cannot escape and regain its natural liberty. Almost all the elementary writers agree, however, that the animal must have been brought within the power of the pursuer before the right of ownership can vest in him.^ If the animal once becomes deprived of its natural liberty, by the aid of nets or snares or otherwise, and so is brought within the pursuer's power and control, he is constituted its lawful owner, in the qualified or 2. See 2 Kent Com. 348, 349, citing 5. 2 Kent Com. 349 ; 2 Ewell's Bl. Buffon's Natural History. Com. 391. 3. Grotius Hist. Belg. cited in Puff. 6. See 2 Kent Com. 349; 2 Bl. Com. Droit Nat. lib. 4, c. 6, § 5. 391: Pierson v. Post, 3 Caines, 175; 4. See Puff. ib. on this subject. Buster v. Newkirk. 20 Johns. 75. CHAP. III.] CHATTELS PERSONAL. § 49 special sense.'^ But it appears that he must have thus far pur- sued his labor to a successful result. For it has been held in New York that the mere pursuit and being within view of an animal during the chase does not create a right of property as against one who kills and takes it afterwards.^ Wounding a wild beast so severely that it may be readily captured would seem to give title if the hunter followed up his advantage with reasonable diligence. Yet the civilians differed on this question, and Justinian, it is said, adopted the opinion that the right of property in a wounded wild beast could not attach until the beast was actually taken.^ While this qualified or special right of property lasts it is as much under the protection of the law as any other right, and remedies for its invasion are given accordingly.' But, as we have shown, animals ferce naturce give the right of ownership to man only so long as they continue in his actual keeping; and if at any time they regain their natural liberty his right instantly ceases.^ Thus the right which he acquires by force he must main- tain by force ; he must first catch and then keep. To this rule concerning wild animals an exception is found ; namely, where the animal has grown tame and allowed itself to be more thor- oughly the property of mankind, submitting voluntarily, so to speak, to the laws of civilized society. Whether this voluntary submission has taken place can only be judged by observing the habits of the creature and those of its kind ; and hence is the com- mon-law maxim, that if an animal fercB naturce appears to have, whenever it goes off, the intention of coming back, — animus revertendi, — which intention is manifested by habitual return to its master, his right of property is still preserved, notwithstand- 7. 2 Kent Ck)m. 349; 2 Ewell's Bl. tiniies in fresh pursuit. See 3 Kent Com.. 391. Com. 349 n. ; Laws N. Y., April 1, 8. Pierson v. Post, 3 Caines, 175; 1844, c. 109. Buster v. Newkirk, 20 Johns. 75. 9. Inst. 2, 1, 13; cited 2 Kent Com. But the New York legislature have 343. enlarged tliis right, in certain game 1. Finch's Law, 176; 2 Kent Com. laws, so as to give title to one who 348 ; 2 Ewell's Bl. Com. 393. starts the animal, so long as lie con- 2. 2 Ewell's Bl. Com. 392. 67 § 49 THE LAW OF PERSONAL PROPERTY. [pART II, iiig the animal goes sometimes astray.'' Wild animals killed belong absolutely to the killer, supposing his act not wrongful nor done on another's behalf.'* Two other instances are given by our elementary writers where animals ferce natures may be regarded as the subject of a qualified or special property. The first — which might, without violence, be referred to the principles we have already laid down — is said to be in case of their own inability, ratione impotentice ; as when hawks, herons, or other birds build in my trees, or coneys or other creatures burrow in my land and have young ones there; whereby I gain a qualified property in those young ones till such time as they can fly or run away.^ The second is propter privi- legium, or where one has a special privilege of hunting, taking, and killing, to the exclusion of others.^ But special privileges of this latter sort conferred by legislation are hostile to the policy of a free government; though there can be no dispute as to the right of the owner of lands to keep his own privileges or to give to another part of them, upon such consideration as may seem proper; whether it be to shoot his animals or to eat them after they are shot by himself; avoiding, of course, all wanton destruc- tion, so far as may be required by law. And we may add that the common law, differing, perhaps, in this respect from the civil law, insists that one who takes or kills a wild animal on another's land gains no title if a trespasser.^ 3. 2 Swell's Bl. Com. 332; Inst. 2, 11 H. L. C. 621; Rigg v. Lonsdale, 1, 15; Finch's Law, 177; 2 Kent Com. 1 Hurl. & N. 9'23. 348. Our modern law inclines to treat 4. Blades v. Hif^o^, 11 H. L. C. ^'^^ ™°^^ useful and less dangerous g2i animals with special favor. As to _^ ou-ii T-D-i/-i/~i dogs compare Sabin v. Smith, 26 Cal. 5. Queen v. Shickle, L. E. 1 C. C. '^ ^ _ ^ '. App. 676, 147 Pac. 1181; Colhnson v. Wier, 91 MisT -IT CI l;"' ; Regina v. Cheafor, 15 Jur. 1065; ownership, 86 Misc. 246, 140 N. Y. S. , '^ „ „ ' " 8 E. L. & Eq. 598. OlJ. As to owner's liability for injuries 1- Q^^^^n v. Sliicklo, L. R. 1 C. C. by the animal, see Dix v. Somerset •^"'^• Coal Co., 217 Mass. 146, 104 N. E. 2. See, as to a young buffalo, Ulery 433; Warrick v. Farley, 95 Neb. 565, v. Jones, 81 111. 403. GO § 50 THE LAW OF PERSONAL PKOPEKTY. [part II. creatures actually tame and owned for the time being. Yet cases may be found which proceed upon the doctrine that while some animals fcrcB naturcB may be so far subject to the ownership of one person as to give him the usual civil remedies, another is not criminally liable if he molest them, for the reason that they are of too base a nature ; and to this category have sometimes been referred sables, ferrets, coons, and the like, which, though sometimes worth money, are judicially pronounced to be unfit for food.^ Herds of cattle on our remote ranches are often 3. See Rex v. Brooks, 4 C. & P. 131 ; Norton v. Ladd, 5 N. H. 203; Rex v. Searing, Russ. & Ry. 350; Warren v. State, 1 Greene (Iowa), 106; n. to 8 E. L. & Eq. 598. See also 2 Ewell's Bl. Com. 393. A more satisfactory- rule would seem to be to refer cases of this sort to the test of money value, as in other instances of steal- ing, instead of mere fitness for food. Thus it has been held that, an otter being valuable for its fur, the steal- ing of the animal from its owner is larceny, if it be reclaimed, confined, or dead. State v. House, 65 N. C. 315. But in order to sustain a con- viction of larceny the animal must have been actually owned when the offender took it. L. R. 1 C. C. 315. Under the criminal law of some of our States, a dog is not the subject of larceny. State v. Lymus, 26 Ohio St. 400; Ward v. State, 48 Ala. 161; State V. Doe, 79 Ind. 9'. Otherwise in many other States. Harrington v. Miles, 11 Kan. 480 ; Mullaly v. People, 86 N. Y. 365. The regulation of the keeping of dogs, so as, in the interest of the public, to authorize their summary destruction if wholesome precautions are not followed, is within the police power of the legislature. Blair v. Forehand, 100 Mass. 136. See Heis- rodt V. Hackett, 34 Mich. 283. 7 There is a fundamental right in extreme cases, recognized and defined by various local statutes, to destroy animals doing damage to one's own property. Marshall v. Blackshire, 44 Iowa, 475; Aldrich v. Wright, 53 N. H. 398. And one has a natural right to defend his own domestic animals from external attacks, as where a dog worries sheep. But one should not kill another's animal merely for being on his premises, while doing no dam- age there. Brent v. Kimball, 60 111. 211. Where the emergency is not peril- ous, driving the intruding creature off is' the more appropriate course, or else distraining for doing damage. Hamlin v. Mack, 33 Mich. 103, 66 Barb. 345. And see general works on Criminal Law. Distress and sale of trespassing animals is provided in some American codes. And see " Es- trays," vol. ii., post. The duty to fence one's premises is sometimes en- joined in this connection. Action lies against the owner of an animal — e. g., a ferocious dog — for injury inflicted upon one who is free from blame, on proof that the animal was vicious and that the owner knew it. The right to bring such suits, whether because of injury to one's person or property, is also regulated and defined by various modem stat- CHAP. III.] CHATTELS TERSOXAL. § 50 branded by the owner, in token of his title ; and State codes pro- utes. A propensity to bite in sport or malice makes no difference. See Wright V. Pearson, 4 Q. B. 582; Worth V. Gilling, L. R. 2 C. P. 1, L. R. 2 C. P. 4; Rider v. WTiite, 65 N. Y. 54; Laverone v. Mangianti, 41 Cal. 138; Linnehan v. Sampson, 126 Mass. 506; 52 Vt. 251; Meibus v. Dodge, 38 Wis. 6; East Kingston v. Towle, 48 N. H. 57; Congress Spring Co. v. Edgar, 99 U. S. Supr. 645; Kightlinger v. Egan, 75 111. 141; Fallon v. O'Brien, 12 R. I. 518. In some States the owner's scienter or knowledge of vice need not be alleged or proved. Newton v. Gordon, 72 Mich. 642. The gist of 'such cause of action appears to be negligence on the part of the injuring animal's owner, the injured party being free from contributory negli- gence. And see general works on Torts, Negligence, etc. In cases of injury of this kind, the fundamental theory of a scienter ap- pears to be that dogs (and perhaps cats), living usually in an owner's house, and in companionship with the household, are presumably sufficiently tame and harmless to go at large. But police regulations are found for muzzling dogs at certain seasons of the year and requiring special precau- tions, which an owner must observe. Whenever an owner knows that his dog is vicious and likely to harm others, if at large, in person or prop- erty, he is bound to guard accordingly (as by chain or muzzle) against such danger. And so with the owner of any other domestic animal, horned cattle, horses and the like, which re- quire general or special care accord- ing to their knoT;\'n general or special propensities, and are presumably more dangerous than dogS; and an owner's scienter becomes always sub- ject to the general scienter of man- kind as to such creatures. See 37 Fed. 317. Even a horse at large upon the highway is a nuisance. 49 Conn. 113. Cf. 125 Ind. 531. As to a bull, see 75 Mich. 557, 42 N. W. 967. Animals kno^vn to be dangerous to mankind, finally, ought to be kept from harm with commensurate dili- gence by an owner, or else the latter will be held to respond for damage done by them to the property or per- son of third parties; thus an ele- phant, though " tamed " in a sense, belongs to this class. Filburn v. Aquarium Co., 25 L. R. Q. B. D. 258. So with a wolf kept in a shop. Manger v. Shipman, 30 Neb. 352. Game laws are found, enacted in the public interest, and to preserve the breed of animals not already owned, and worth killing for food, &c. ; as in prohibiting killing them during breeding time. See Phelps v. Racey, 60 N. Y. 10. Such laws are no un- constitutional invasion of the right of private property. lb. And see Hart v. State, 29 Ohio St. 666. So, too, are laws constitutionally enacted for sanitary reasons, as to prevent ani- mals from communicating such dis- eases as pleuro-pneumonia. Kenney v. Hannibal R., 62 Mo. 476; Caldwell V. Bridal, 48 Iowa, 15; 146 N. Y. 44. And to prevent and punish needless abuse or wanton cruelty to animals. See Swartzbaugh v. People, 85 111. 457; Commonwealth v. Thornton, 113 Mass. 457; State v. Hill, 79 N. C. 656; State v. Linde, 54 Iowa, 139; Chappell V. State. 35 Ark. 345: Rom- bert V. State, 56 Miss. 280; English 71 § 51 THE LAW OF PERSONAL PROPERTY. [PART II. tect such marks and prosecute those who brand or alter brands unlawfully.'^ Bees, too, are ferce naturae; but when hived they become re- claimed, so as to belong to the person who first hived them. If they afterwards fly away, his right of ownership continues so long as he can keep the swarm in sight, and he can, under such circum- stances, pursue and recapture them, even though they should set- tle upon a tree in another person's lands. ^ But one cannot gain an original title to bees as a trespasser upon some third person's premises.^ § 51. Offspring of Domestic Animals; How Owned. Of tame and domestic animals it is to be observed that the brood belongs to the owner of the dam or mother; the maxim of both civil and common law being, as to brute creatures, partus sequitur ventrem. Hence, the owner (or in certain cases the hirer) of the cow is the owner of the calf; the owner of the mare is the owner of the colt ; and so on : each proprietor of the female Acts 12 & 13 Vict., c. 92; 39 & 40 W. 154, as to fish; Dieterich v. Fargo, Vict., c. 77; Murphy v. Manning, 2 19^4 N. Y. 359, 87 N. E. 518, 22 L. R. Ex. D. 307; Durgan a*. Davies, 2 A. N. S. 696 (deer reclaimed) ; State Q. B. D. 118; 12 Q. B. D. 66. Dis- v. Shaw, 67 Ohio St. 157, 1 N. E. icrning cattle, however skilfully done, 753, 60 L. R. A. 481, n. (fish) ; Peo- is " cruelty." 23 Q. B. D. 203. pie v. Wanzer, 43 Misc. 246, 88 N. Y. 4. See, e. g., Texa& code; 13 Tex. S. 281 (oysters). App. 215. Various local 55-tatutes and ordi- 5. Goff V. Kilts, 15 Wend. 550. See nances are found regarding animals; Gillett V. Mason, 7 Johns. 16 ; 2 Kent as for mark of ownership ; injuries Com. 350; 2 Ewell's Bl. Com. 393. done by or to them; prevention of This was also the rule of the civil cruelty to animals, etc. See People law. See 2 Kent Com. 350. Bees in v. Downs, 76 Misc. 110, 136 N. Y. S. possession of the ovraer are the sub- 440 (green turtle) ; Walton v. Mitchell, ject of larceny. Hannam v. Dockett, 74 S. E. 1006 (Ga., 1912) ; McGilton 2 B. & C. 934, 944; State v. Murphy, v. St. Louis Nat. Stockyards, 254 111. 8 Blackf. 498. But see Wallis v. 178, 98 N. E. 250. The police welfare Mease, 3 Binn. 546. See also 1 U. S. of a city may demand a rule stricter Dig., "Animals Ferw Natura:" than in a rural community. See 4 6. Rexroth v. Coon, 15 R. I. 35. Chamberlayne Evid., p. 2144. See further, 110 Ark. 204, 161 S. CHAP. III.] CHATTELS PEESONAL. § 52 beiug taken rather than that of the male.^ And this, not only for the reason which Puifendorf elaborates at some length, that the female parent occasions her proprietor much the greater dam- age, requiring during the time of pregnancy especial expense in the keeping, while disabled from rendering her usual service ; but upon another consideration, quite sufficient in many instances, namely, that the male parent cannot be clearly identified. It is therefore quite a common thing in the case of certain domestic creatures, where the pedigree of the offspring is deemed a matter of importance, for the owner of the sire to demand and receive from the owner of the dam some special compensation in advance by way of equivalent for paternal services. The progeny of cows and of other domestic animals will go presumably to the new purchaser notwithstanding no full transfer of possession of prem- ises or animals has been made.^ § 52. Property in a Person or Corpse. Property in a living human being is no longer permitted by English or American law.^ As to a corpse, no one can in the strict sense of the common law be said to own it; yet there is a quasi property in a dead body, more especially for the purposes of interment and protection from insult, which the courts will protect out of regard to the next relatives; and the persons hav- ing charge of such remains hold them as a trust subject to the regulation of a court of equity, and must act with decency.^ The 7. 2 Ewell's Bl. Com. 390; 2 Kent 8. Wolcott v. Hamilton, 61 U. S. 79. Com. 361; Puff. Droit Nat., lib. 4, 9. Cf. 2 Ewell's Bl. Com. 402. c. 7, § 4; Stewart V. Ball, 33 Mo. 154; 1. Tierce v. Swan Point Cemetery, 130 U. S. 69. Blackstono, however, 10 R. I. 227, and cases cited. When cites 7 Co. 17, where, under peculiar a coffin, with the consent of all per- circum-stances, young cj'^ets were sons having any interest in it, has equally divided ]>etween the owners been deposited in the earth, for the of the hen and cock, as an exception purpose of interment, with a corpse to this rule; founded, as he asserts, enclosed within it, it is no longer a upon natural reasons, though perhaps subject of property, nor can replevin it was upon mere custom. See Han- for it be maintained. Guthrie v. Son v. Millett, 55 Me. 184. Weaver, 1 Mo. App. 136. As to cre- 73 § 53 THE LAW OF PERSONAL PROPEETY. [pART II. primary right to regulate is in the surviving spouse or nearest of kin. The last wishes of the deceased person, moreover, as to the interment or disposal of his own corpse, receive often great con- sideration from his executors and family.^ § 53. Vegetables, Minerals, etc, ; Severance or Annexation. l^ext to animals may be mentioned vegetables, which also, under certain circumstances, come under the designation of chattels personal of a corporeal nature. Vegetables are essentially dis- tinguished from animals in lacking the quality of sensation; though in scientific classification this may not always prove an exact test, so closely are some orders of animals and vegetables allied. We speak of vegetables as chattels when they are disjoined or severed from the ground; and so, too, the fruit of a tree is a chattel when severed from the body of the tree ; and the tree or plant itself is a chattel when severed from the ground.'' The same may be observed of minerals and metals, like coal, iron, gold or silver, whose substance is part of the realty while in the mine; but after being dug out they are corporeal chattels personal."* A similar rule applies to soil dug out to be used elsewhere,^ and to ice formed on a sheet of water, when it is cut away.^ Coal oil or petroleum is a mineral, too, in its natural mation of a dead body, see Williams to the disposition of one's body can- V. Williams, 20 Ch. D. 659. not be enforced. Williams v. Wil- See further, Wright v. Earned, 163 liams, 20 Ch. D. 659. S. W. 685 (Tex. Civ. App.) ; Men- 3. 2 Ewell's Bl. Com. 389; 1 Wms. singer v. O'Hara, 189 111. App. 48; Ex'rs, 6th ed. 608; Yale v. Soely, Finley v. Atlantic Transport Co., 90 15 Vt. 221. Misc. 480, 153 N. Y. S. 439 (damages 4. 2 Burge Col. and For. Laws, 10; against person interfering) ; Painter Bainbridge on Mines and Minerals, V. Fidelity Co., 123 Md. 301, 91 Atl. 1st Am. ed., 3; Lykens, Ac, Co. v. 158 (ordering undertaker's S'ervices) ; Dock, 62 Penn. St. 232. Cooney v. English, 86 Misc. 292, 148 5. Lacustrine Fertilizer Co. v. Lake N. Y. S. 285 (directions in will con- Guano Co., 82 N. Y. 476. Natural trol) ; Seaton v. Commonwealth, 149 gas when put into pipes becomes per- Ky. 49^8, 149 S. W. 871, 42 L. R. A. sonal property. Crystal Ice & Cold N. S. 209, n. (a decent burial) ; Storage Co. v. Marion Gas Co., (Ind. Darcy v. Hospital, 202 N. Y. 259. App.), 74 N. E. 15. 2. Yet a direction even by will as 6. Higgins v. Kusterer, 41 Mich. 74 CHAP. III.] CHATTELS PERSONAL. § 53 state, and being a mineral is part of the realty where it lies con- fined, like coal, iron, gold or silver, although of a liquid character ; and the same may be said of natural gas, and of percolating or subterranean waters.^ But where the imprisoned gas, water, or oil escapes, it becomes personal property.^ Actual severance rightfully made, and with the intention of converting the thing into a chattel, makes what before was realty personal property.^ But a constructive severance of fruit, vege- tables, or trees, or other products, sometimes takes place before there is an actual separation from the land. As where the owner of the fee in lands by a valid deed sells the trees to a third person, or sells the land reserving the trees ; the intention being that these trees shall be speedily removed from the land. In such cases it has been held that the trees became chattels personal, and were not, under the Statute of Frauds, to be regarded as interests in land, but might be transferred by parol. ^ And we shall see here- after that growing crops are for many purposes treated as chattels. Mutual intention, however, to such constructive severeance is need- ful ; likewise, that the act bo rightful and not wrongful, and with 318, 2 Wall. (U. S.) 645. Ponds, Ky. 818, 178 S. W. 1084 (oil and gas streams, &c., are usually owned with lease) ; Tupeker v. Deaner, 148 Pac. the soil; but ice may be sold, if 853 (Okla. Sup. IQ'IS) ; Fairbanks v. formed, whether in or out of the Warrum, 56 Ind. App. 337, 104 N. E. water, as personalty. lb. As to the 983, 1141 ( natural gas ) . right to cut ice, see People's Ice Co. 7. Williamson v. Jones, 39 W. Va. V. Davenport, 149 Mass. 322, 21 N. E. 231, 257, 28 S. E. 411, 25 L. R. A. 222, 385. And see Hagerman Co. v. Mc- n., and citations; Frank v. Haldeman, Murry, 16 N. M. 172, 113 Pac. 823. 53 Penn. St. 223; 131 Penn. St. 143, Water stored by an irrigation com- 6 L. R. N. 280; 152 Penn. St. 235; pany in its reservoir is held to be real Chasomore v. Richards, 7 H. L. Cas. property, the right to use being ap- 349 ; 15 B. Mon. 479. purtenant to the land. Copcland v. 8. lb.; 28 W. Va. 210. See further, Fairview Co., 165 Cal. 148, 131 Pac. § 130, post. 119. So, too, semble, with water for 9. § 4. civic use while in a public reservoir. 1. 1 Ld. Raym. 182 ; Warren v. Le- But water drawn oflF in a pail or other land, 2 Barb. 613 ; Kingsley v. Hol- receptacle for personal us« becomes brook, 45 N. H. 313, and cases cited, personal property certainly. See note to 4 Kent Com. 451, where See further, §§ 130-133, post; this question is fully discussed, with Beckett-Iscman Oil Co. v. Barker, 165 references. 75 § 54 THE LAW OF PERSONAL PROPERTY. [PAET II. the purpose of passing chattel property; and no constructive sev- erance can operate to prejudice subsequent purchasers for value of the realty without notice.^ Even the conveyance of a building apart from the land is held to vest as personal property before actual severance.'' On the other hand, annexation to the soil, or even, as it would appear, a deep embedding in the ground, will change that which before was personal into part of the realty/ And hence, in a modern case, where an aerolite, weighing over sixty pounds, buried itself in the ground where it fell to the depth of three feet, it was held that it thereupon became the property of the person who owned the soil.^ § 54. Money a Corporeal Chattel Personal, Money is likewise a corporeal chattel personal. This is the common medium of exchange in a civilized nation. At our law the word " money " usually comprehends coins of gold and silver, which have become the recognized standard of value throughout the civilized world. The Constitution of the United States vests in Congress the power to coin money and regulate the value 2. Lewis V. Rosier, 16 W. Va. 333. down. 4 Co. 63 a; Bewick v. Whit- Soil removed from the land of one field, 3 P. Wms. 268. But as to person and placed on the land of hedges or trees not timber, a rule another, without intent of reclaiming somewhat less strict applied. Com. or removing it, becomes part of the Dig. Biens, H. See § 101, post. latter peri3on's land. Lacustrine Fer- 3. Hood v. Whitwell, 66 Misc. Rep. tilizer Co. v. Lake Guano Co., 82 N. Y. 49, 120 N. Y. S. 372. 476. The owner of land cannot, 4. § 4. by agreement between himself and 5. Goddard v. Winchell, 86 Iowa, another, without actual severance, 71, 52 N. W. 1124. See also Elwea make that which is part of the realty v. Briggs Gas Co., 33 Ch. D. 562, personal property a& against a sub- where a like rule of title was applied sequent purchaser for value without to a prehistoric boat whioh was dis- notice. lb. covered six feet under ground ; though Cutting down timber trees did not, the court did not define whether this at common law, entitle tenant in was real or personal property, but con- dower or by the curtesy, &c., to them ; sidered the oAvnership the same in nor where a stranger cut them down; either case. nor even though the wind blew them 76 CHAP. III.] CHATTELS PERSONAL. § 54 thereof;^ in pursuance of which hiws have been framed from time to time regulating the coinage. Again, the Constitution declares that " no State shall coin money, or make any thing but gold and silver a legal tender in payment of debts." ^ Thus the power to legislate in such matters is checked and controlled in this country by the fundamental law of the land. Civilized na- tions in general claim the prerogative of regulating each its own coinage, by taking the bullion, or precious metal, in the rough state, dividing it into small portions of convenient size, and mark- ing them with a stamp which attests their value. This is what constitutes coined money. The usual money of the United States consists of gold and silver coins; and though copper coins and nickels are used in making small change, being authorized by statutes to " pass current," they are not constituted a legal tender for the payment of debts.^ During a revoluntionary period, and in seasons of great finan- cial distress, however, government sometimes puts forth, as a means of temporary relief, notes of a promissory nature, and declares these to be a legal tender for the payment of debts, thereby forcing them into circulation to supply the place of the gold and silver coins which have disappeared, establishing them temporarily as the medium of exchange, and constituting them in effect lawful money.^ Such notes, if irredeemable, are corporeal chattels per- sonal; and, even though they be redeemable, we should say they were still corporeal rather than incorporeal ; though greatly assimi- lating in general features to bills and notes which are now fully recognized as incorporeal chattels. For whatever circulates as money, whatever we may pronounce to be '' cash," appears to be properly treated as a chose in possession ; that is to say, as a chat- tel personal of a corporeal character. And even bank-notes are for many purposes treated as money. ^ 6. Art. 1, § 8. cycl. Am. " Money." And see §§ 335- 7. Art. 1, § 10. 352, pott, on Money, where the sub- 8. See Bouv. Diet. " Money ; " En- jcet of iep^al-tendcr notes under our cycl. Am. " Money." Constitution is fully discussed. 9. See Bouv. Diet. "Money; " En- 1. Crane v. Frcese, 16 N. J. L. 305. § 56 THE LAW OF PERSONAL PROPERTY. [pART II. § 55. Ships and Vessels Are Corporeal Chattels Personal. Among chattels personal of a corporeal character, no class is more important, in a legal point of view, than that of ships and vessels. But the law of shipping is in many respects peculiar ; and while ships and vessels are undoubtedly personal chattels per se, and not real estate, yet the rules respecting their title and transfer, together with the registry systems established by legis- lation in England and America, are such as liken these consider- ably to lands and tenements.^ § 56. Miscellaneous Corporeal Chattels Personal. There are many other chattels personal of a corporeal character, which give rise to no very peculiar legal doctrines. Among these are to be enumerated household furniture, implements and uten- sils, garments, plate, jewelry, wares, merchandise, and carriages. The list might be indefinitely extended. Rolling-stock of a rail- way, such as cars and locomotive engines, are personal chattels of a corporeal character."' Ice, when cut and taken from a pond or stream for purposes of merchandise, becomes a chattel personal of the same description.'* Liquors and imitation butter are chat- tels personal ; though modern legislation in various States may interfere much with the transfer and traffic in these and other things deemed injurious. Whatever personal chattel, in short, you can see or touch is to be classed as corporeal. And such things are what our writers were wont to style choses in possession^ See contra, Hamilton v. State, 60 Ind. here fche rails are movable property. 193. Woodward v. Exposition R., 39 La. 2. Taggard v. Loring, 16 Mass. 339; An. 566; c. 6, post, on Fixtures. Ogle V. Eagle Ins. Co., 4 Mason, 390; 4. See Minnesota Co. v. St. Paul 1 Pars. Shipping, c. 2. See §§ 300- Co., 2 Wall. 645; supra, § 53; 1 334, post, on Ships and Vessels. Washb. Real Prop. 11; State v. Pott- 3. But the roadbed, rails fastened meyer, 33 Ind. 402; Higgins v. Ku3- in place, and right of way in a rail- terer, 41 Mich. 318; Gregory v. Ros- road are usually real property. Hart enkrans, 72 Wis. 220. See post, c. 6, V. Benton-Bellefontaine R., 7 Mo. App. as to Fixtures. 446, and citation. Otherwise as to 5. St-e 2 Ewell's Bl. Com. 389; 2 rails fastened and a railroad con- Kent Com. 351; supra, c. 1. structed upon the soil of another; for 78 CHAP. III.] CHATTELS PEKSOXAX. § 59 § 57. Civil-Law Distinctions Among Movable Things. The civil law distinguished between two sorts of movable things ; those animate, or animals, which move themselves, and those inanimate, which required to be moved, and hence were called dead movables. This classification applies in reason to corporeal personal property only.^ There is another distinction made by the civil law ; namely, between things that may be used and kept entire, such as a horse, tables, beds ; and things which we cannot use without consuming them, such as fruits, corn, wine, and oil.^ § 58. Incorporeal Chattels Personal, or Rights in Action, to be Considered. Secondly, as to chattels personal of an incorporeal character, or choses in action. Things incorporeal were designated by a word at the Koman law corresponding to our English word " rights." And if our reader keeps the idea before his mind that an incorporeal personal chattel is a sort of " money right," or right in action, he is likely to get all that was worth extracting from the old-fashioned phrase, choses in action, upon which we have commented sufficiently in a former chapter.^ § 59. Debts, Claims, Demands, etc. The right to receive the payment in money of what another owes me — or, considered with reference to the party owing, a debt — is an incorporeal chattel personal of a very important kind. The word " debt " is used by Blackstone as though applica- ble only to money due by some certain and express agreement; but in reality it has a broader signification, being properly used to denote all that is due a man under any form of obligation or promise. A debt may be a lien on an estate ; or it may be secured by a pledge or pawn; or by a mortgage of other property; or it may be without any lien or security at all.' 6. Domat Civil Law, by Strahan, 9. See Bouv. Diet. "Debt;" 3 Bl. 152. Com. 154; Part III., c. 3, post, on 7. lb. Debts. 8. Supra, §§ 11-15. 79 § 61 THE LAW OF PERSONAL PROPERTY. [pART II. Money rights of value in general for which one may bring an action against the person, whether founded on contract, or to recover damages arising from injuries to person, reputation, or property, are to be classed with chattels personal of an incorporeal character, whether properly styled " debts," or (as seems to us preferable) " claims," or " demands." ^ § 60. Debts upon Security. We are to suppose that all such debts, claims, or demands, how- ever created, give a right of action against the person obliged or indebted, and also accompany the owner or creditor wherever he goes; so that, on either consideration, they are to be treated as movable property. These qualities being retained, they remain movables, although the indebtedness be secured by land or other immovable property, if that security be accessory only to the debt. Hence a mortgage, though of real estate, represents, before fore- closure, security for an incorporeal personal chattel.^ So, too, is any loan of money on chattel mortgage, or collateral .security generally, an incorporeal personal chattel.^ Arrears of profits and of income, as well as the outstanding loans themselves, are likewise incorporeal.'* § 61. Bank Deposits Considered; General or Special Deposit. The distinction between a corporeal and incorporeal chattel, or betv/een a chose in possession and a chose in action, may be illus- trated by the case of money at a bank. If I deliver money in a package or receptacle properly marked, to a banker, for safe keeping, intending that it shall be returned to me in the same 1. See 2 Ewell's Bl. Com. 397, as 2. 2 Powell Mortgages, 781, 782; 2 modified in notes by Chitty, Shars- Burge Col. and For. Laws, 34. See wood, and others. And see Part III., Reg. v. Powell, 2 C. C. R. 403. c. 3, post, on Debts. See Bouv. Diet. 3. See chapters, post, on Liens, " Claim ; " " Demand " ; Gillet v. Fair- Fledges and Mortgages, Part III., C9. child, 4 Denio, 80; Hall v. Robinson, 4-6. 2 Comst. 29'3 ; Wallen v. St. Louis R., 4. Wilkinson v. Charlesworth, 11 74 Mo. 521; Di'bert v. D'Arey, 248 Jur. 644. Mo. 617, 154 S. W. 1116. 80 CHAP. III.] CHATTELS PERSONAL. § 62 specific condition, this is the deposit of a corporeal chattel, namely, the receptacle with its contents ; but if I pay the same money over the counter, on a regular account with the banker, to be subject to my check for a like amount whenever I choose to draw, he owes me a balance, and this balance is a debt, and hence an incorporeal chattel.^ Banks ordinarily do their business on the latter princi- ple; but we have in these days banks of safe deposit, whose special duty it is to receive moneys, jewels, plate, and other valuable on deposit, to be returned in presumably the same condition as left by the owner. There may be, of course, the special deposit of corporeal chattels, such as plate or jewels; or of muniments of rights, such as notes or bonds; or of both together; but usually the deposit is of the specific package or receptacle with undisturbed contents, which is corporeal. § 62. Various Instances of Incorporeal Chattels Personal. Among instances which are to be referred to the class of incor- poreal chattels personal — or, as the courts usually have it, choses in action — are the following : contracts for railway shares ; ^ an interest in a partnership ; ^ a lottery ticket ; ^ a claim against a railroad company for the value of goods destroyed while in its custody,^ public land scrip; a seat at the stock exchange or Brok- ers' board assignable and having a market value ; ^ book accounts and assignable claims and rights to sue generally.^ Those speci- fied are but scattered instances ; for, as Chancellor Kent has said, by far the greatest part of the questions arising in the inter- 5. See Carr v. Carr, 1 Mer. 543, n. ; 9. Ayres v. Western R. R. Co., 48 Wyatt V. State Board, 74 N. H. 352, Barb. 132. 70 Atl. 387. 1. Powell v. Waldron, SO' N. Y. 328; 6. Humble v. Mitchell, 11 A. & E. ^^4 Minn. 398. 145 N. W. 108. n-- 2. Consolidated Tank Line Co. v. Collier. 148 111. 259, 35 N. E. 756; 7. Tempest V. Kilner, 3 D. & L. 407, g. H. & S. A. R. R. v. Freeman. 57 2 C. B. 300. Tex. 150; Shaw v. Colwell Lead Co., 8. Jones v. Carter, 8 Q. B. 134. 20 Blatchf. 417. 6 81 § 63 THE LAW OF PERSONAL PROPERTY [PART II. course of social life, or which are litigated in the courts of justice, are to be referred to this head."' The goodwill of a newspaper establishment is personal prop- erty and capable of being valued and sold as such.'* And so with the goodwill of other business of a chattel character,^ and valua- ble personal rights or franchises generally. But it is held that the goodwill of a public house grows out of realty in such a man- ner that it cannot be considered a personal goodwill.^ § 63. Legacies and Distributive Shares. To the same class of incorporeal chattels personal belong lega- cies and distributive shares. These are sometimes placed among " equitable choses in action," or rights to be enforced by suit in equity; since the rule formerly was, that if the' executor withheld payment, the legatee could maintain no action at law, but had to sue in equity.'^ But the English statutes have modified that rule, while in some of the United States an action at law for a pecuniary legacy has been maintained, and in some it is expressly given by statute.^ By the term " legacy " we mean a gift of personal prop- erty under a last will and testament.^ By a '' distributive share " we mean that share of the residue of the personal estate, after payment of all debts and charges, to which a person is entitled 3. 2 Kent Com. 351. ed. 6; Deeks v. Strutt, 5 T. R. 690; 4. Boon V. Moss, 70 N. Y. 465. Braithwaite v. Skinner, 5 M. & W. 313. 8. See Stats. 9 & 10 Vict., c. 95, §§ 58, 65, and later statutes cited in 6. Kitchin, in re, 16 Ch. D. 226. Wms. Pers. Prop, ib., and see Wetlier- In Texas a " head-right " or unlocated gU's Am. note to ib. ; Beeker v. Bee- land certificate is in the nature of a ker, 7 Johns. 99; Farwell v. Jacobs, chattel personal. Johnson v. New- 4 Mass. 634; Morrow v. Brenizet, 2 man, 43 Tex. 628; Porter v. Burnett, Rawle, 185; Wooten v. Howard, 2 60 Tex. 220. A liquor tax certificate gm. & M. 527. or license is personal property. Brew- 9. !„ re Ross, 140 Cal. 282, 73 Pac. ing Co. V. G«hl, 154 App. Div. 84?, 976. The word legacy may also in- 139 N. Y. S. 807. See 4 Chamberlayne elude realty where the context re- Evid., § 776. quires it. In re Stuart, 115 Wis. 294, 7. See Wms. Pers. Prop. 3d Am. 91 N. W. 688. 82 5. Batchelder v. Batehelder, 220 Mass. 42, 107 N. E. 455. CHAP. III.] CHATTELS PERSONAL. § 64 under the statutes of distribution, relative to the estates of persons dying intestate.^ § 64. Patent-Rights and Copyrights. Patent-rights and copyrights are species of incorporeal personal chattels. The Constitution of the United States confers upon Congress the power to pass laws " to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." ^ The limited monopoly conferred by patent and copyrights laws has been so long a feature of English and American jurisprudence as to make it questionable what are the natural rights of an inventor or author. In either case free dedication to the public of the creation of one's brain debars him from asserting an ex- clusive claim subsequently, however valuable it might be.^ As to literary property, for instance, the sole proprietorship of a manuscript is in the author, or his assigns, before publication; but an unqualified publication, such as one makes by printing and offering copies for sale, dedicates the contents to the public, unless the sole right of printing, reprinting, publishing, and vending the work is secured by copyright.'* Books that are printed or machines that are made, embodying one's ideas, are themselves corporeal chattels of course. Every private letter belongs so far to the author of them as against the receiver, that the latter cannot pub- lish or sell them without the former's consent ; ^ thus the owner- ship of ideas not fully imparted finds much protection aside from statute.^ 1. See post, as- to Legacies and Dis- Large, cs. 783, 1019, 35 St. at Large, tributive Shares, Part III., c. 12. 245, 246, 38 St. at I-«irgc. 958. 2. U. S. Const., art. 2, § 8, cl. 9. 3. lb., 122 App. Div. 260, 106 N. Y. See post, Part III., c. 10, as to Pat- S. 1016. ents and Copyrights ; Wms. Pers. Prop. 4. Parton v. Prang, 3 Cliff. 537. 5th Eng. ed. 6. The patent laws are 5. 2 Story, 100; Riee v. Williams, found in Rev. St., §§ 4883-4936, as 33 Ff>d. 437, and cases cited, amended by the Act of 19'02 (32 St. 6. The inventor of a machine who at Large, c. 417) and by 32 St. at sells it without a patent may still 83 § Q6 THE LAW OF PERSONAL PKOPERTY, [pART II. But one who has ideas, trade secrets, or systems of his own which cannot be used or sold without disclosure, must guard his own property, if he has no patent or copyright to protect him; for if he discloses the idea or secret to another even in confidence, without contract to guard it or an agreement for recompense, such a party is entitled to use it for his own benefit without rewarding him/ It is otherwise, however, where the other party obtains knowledge by some fraud or breach of trust or of contract, for to this extent the owner of the original idea or secret is protected.^ § 65. Insurance Policies. Debts arising under contracts to insure, effected by means of what are called policies of insurance, are in the nature of debts payable on contingencies ; and these are to be classed among incor- poreal chattels personal. Insurance may be defined as a contract, by which, in consideration of a certain sum, one party agrees to indemnify another against risks incurred in a certain manner, during a specified period. The usual kinds of insurance are, — first, insurance on lives ; second, insurance against loss by fire ; third, marine insurance, or insurance on risks incurred in navi- gation; and there are other kinds, such as accident, liability and fidelity insurance.^ § 66. Annuities, Pensions, Salaries, etc. Personal annuities, or annual payments of money, not charged on real estate, are likewise a species of incorporeal personal chat- tel. The law of personal annuities is so closely allied to that of have exclusive ownership of the pat- Co. v. Delaney, 211 Mass. 231. As to terns, where simple measurenipnt of a mere idea unprotected by contract the machine does not give it Tabor or statute, see Haskins v. Eyan, 75 V. Hoffman, 118 N. Y. 30, 23 N. E. 12. N. J. E. 623, 73 Atl. 1118; Henry v. Cherry, 30 R. I. 13, 73 Atl. 97. 7. Morison v. Moat, 9 Hare, 241, q g^^ g^^^ p-gt "insurance;" 263; Bristol v. Equitable Society, 132 ^y^^^ p^^^ p^^p ^r^^^ ^^g ^^ 304. N. Y. 264, 30 N. E. 106; Chadwick v. p^^.^ jjj^ ^ ^^^ p„^^^ on the various Covell, 151 Mass. 190, 23 N. E. 1068. ^^^^^ ^^ Insurance. See Chamber- 8. lb. See American Stationery layne Evid., § 2776. 84 CHAP. HI.] CHATTELS PERSONAL,. § 68 life insurance, at the present day, that it is difficult to separate them in legal principle. Pensions, or those stated money allow- ances which government grants to an individual, or his repre- sentatives, in consideration of valuable public services rendered by him to the country; also salaries (a term usually applied to the recompense paid for the performance of one's official duties) ; these are all to be classed under the same general head, being "money rights" of an incorporeal character.^ § 67. Incorporeal Personal Chattel; Right to be Distinguished from Evidence of Right. We are already getting beyond the term chose in action or the " right-to-sue " theory, and coming upon the more truly debatable ground of incorporeal personal property. Let us, then, take care not to confound our " money right " or right of action to obtain money, with the instrument which evinces the possession of that right. Thus the right to recover money under a contract, the debt, claim, or demand, is one thing; but the contract itself is another, and evidence, rather, of the right. One may have a pension claim, though not a pension certificate. A patent-right may exist before the letters-patent are issued. And while there may be a debt due under an insurance policy, this is to be distinguished from the insurance policy or contract itself. To preserve such distinctions is not always easy, especially where the right and the instrument are closely blended in legal consideration, as in these last instances; and one finds himself strongly tempted to consider patent and insurance rights as corporeal property, mis- taking the instrument — the letters-patent, or the insurance policy — which may be seen and touched, for the right which is and must be invisible and intangible. 't-'' § 68. Stocks and Shares. The necessity of the distinction becomes more apparent when 1. See Bouv. Diet. "Annuity; " post, as to Annuities, &c., Part III., "Pensions;" "Salary;" Wms. Pers. c. 11. Prop. 17th Eng. ed. 312. See chapter 85 § 68 THE LAW OF PERSONAL PROPERTY. [PART II. we come to consider the subject of stock, upon whose nature the courts have spoken somewhat doubtfully. Said Lord Chief Baron Kichards, of England, in King v. Capper,^ in the year 1817: " JSTow it is certainly not easy to define precisely the meaning of ' stock.' It is not an ancient subject of property nor known to the common law. It is, however, a hereditament." And further he adds that stock is to be considered " a chose in action, or in the nature of a chose in action. It is not a thing tangible of which you can take corporeal possession." ^ And Chief Justice Shaw, of Massachusetts, observed later of bank shares, which are a species of stock: " If a share in a bank is not a chose in action, it is in the nature of a chose in action, and, what is more to the purpose, it is personal property." ^ Again, in a later Pennsylvania case the same question was fully discussed by Judge Rogers, who, after referring to what Kent ^ had included under the title of " things in action," proceeded to say that " bank shares would seem to be included in that class, as they merely entitle the holder to receive on demand a proportion of the profits or earnings of the bank, and never in this country have been considered other than chat- tels." ^ And Judge Comstock, of ^ew York, considers that cer- tificates of stock are not securities for money in any sense, much less negotiable securities ; that they are simply the muniments and evidence of the holder's title to a given share in the property and franchises, of which he is a member.^ The reader will thus 2. 5 Price, 217, 262. And see Wild- 6. Slaymaker v. Gettysburg Bank, man v. Wildman, 9 Ves. 177. 10 Penn. St. 373. And see further. 3. King V. Capper, ib. Union Bank of Tennessee v. State, 9 Yerg. 490. In the text of Angell and 4. Hutchins v. State Bank, 12 Met. Ames on Corp., § 560, there is an in- 421. Shares of stock are incorporeal accurate use of the word " chattels." personal property. Allen v. Pegram, The writer says: "Shares in joint- 16 Iowa, 173. stock companies are not. Strictly 5. 2 Kent Com. 351. The state- speaking, chattels;" but the context ment of Chancellor Kent in question shows that he meant only corporeal should be qualified, considering the chattels. later developments of the law of per- 7. Mechanics' Bank v. Xew York §onal property. R. R. Co., 3 Kern. 627. 86 CHAP. III.] CHATTELS PERSONAL,. § 68 perceive that the court sare rapidly outgrowing this chost in action doctrine, now that new and peculiar kinds of personal prop- erty have come into use; while they intimate plainly enough, what we undertake to assert, that shares in stock, notwithstanding the visible and tangible certificates which are sold in the market, and represent them, constitute a sort of " money right," and are an incorporeal, not corporeal, species of property. The dividend of the stock is incorporeal as well as the stock itself.^ In Eng- land, shares in companies acting exclusively on land, as canal and turnpike companies, were at first sometimes treated as real estate ; but in the great majority of cases, and in all the modern charters and acts of incorporation, shares in joint-stock corporations are made in that country, what they have been almost universally regarded in the United States, personal property, or chattels. This, of course, is a matter regulated by general or special legis- lation, since corporations which issue stock are the creature of statute or charter.^ One especial difficulty, in regarding the nature of stock, arises from the fact that stock certificates express some certain money value on their face. Unlike letters-patent, which represent an uncertain value, and insurance policies, where the liability indi- cated is purely contingent or remote, certificates of stock are the evidence of a definite fraction of a definite and existing debt ; and if the corporation issuing these certificates be well conducted, the certificates will have a market value so precise as might readily mislead one into the belief, in days of paper money, that they are themselves money or securities for money; though the par value and market or actual value of the shares may be by no means synonymous. 8. Sla>Tnaker v. Gettysburg Bank, Trcpi-ar v. Water Co., 76 Cal. 537. 10 Penn. St. 373. As to our recent real estate " trusts " 9. See Wms. Pers. Prop. 17th ed. which issue stock for investors quaere, 327; 2 Kent Com. 340, n. ; post. Part unless local statute defines. § 18, III., c. 9, as to Stock; 11 Phila. 609; supra. 87 § 69 THE LAW OF PERSONAL PKOPERTT. [PABT U. § 69. Bills and Notes, Checks, etc. Now let us look a little further into this subject of incorporeal chattels personal. Every " money right " is a money right only while the obligation to pay lasts. But if a debt be paid in money (the legal tender for debts), this debt is extinguished, and the creditor has no longer an incorporeal chattel personal of the nature of a money right, but in its stead, a corporeal chattel personal ; that is, the money which was paid in satisfaction. And so with any claim or demand ; though payment might be by agreement in other property. And so long as the right of action to recover a debt, claim, or demand which the law gives a person is without visible or tangible instrument, by way of evidence of its amount, we find no difficulty in calling the debt, claim, or demand, an incorporeal chattel. But it is otherwise when some written certifi- cate, which acknowledges an indebtedness, floats about seeking purchasers in the money market. Thus, if A owes me a thou- sand dollars, I have in the money right an incorporeal chattel personal. If he pays me in money one thousand dollars, the incorporeal chattel is gone, and I have a corporeal personal chattel — namely, one thousand dollars cash — in its place. But sup- posing A makes out his note for one thousand dollars, payable on demand instead, and hands it to me, what kind of a chattel is this note ? His mercantile standing may be so good that I could hand the note to a third person and receive one thousand dollars upon it; and I may regard it as in every respect the equivalent of money. But it is not money. The instrument is but evidence of an indebtedness which A must eventually pay ofi", as in the other case, in money. The note may be visible and tangible; but the money right which it represents still continues incorporeal as before. Being misled by the negotiable quality of bills and promissory notes, whereby they passed current very much like money, the courts were formerly inclined to treat them as choses in possessio7i, or corporeal property; but the later authorities more correctly hold that they are " in the nature of choses in action; " which 88 CHAP. III.] CHATTELS PBESONAI,. § 70 means, that thej are incorporeal chattels personal.^ Bank checks are properly referred to the same class.^ And the debt or bal- ance due from a bank is likewise to be distinguished from the bank book which evidences it. § 70. Bonds and Other Instruments for the Payment of Money. Individual bonds for the payment of money, with or without security, have long been known in our law. Government and corporation loans furthermore have become an important subject for investment in latter days ; and not only does the federal or State government issue its bonds or certificates of debt bearing interest, to tempt the capitalist, but similar issues are frequently authorized by law in the case of public and private corporations. Thus, there are county and city bonds, railroad bonds, State bonds, and United States bonds, all offering fair rates of interest, to be purchased in the open stock markets at this day. So, too, we have a great variety of bonds issued by industrial and other private corporations. Some of the bonds offered are of a negotia- ble character, and are put forth as coupon bonds ; some are to be registered ; some are bonds accompanied by pledge or mortgage security. Indeed, private individuals in many of the United States, who wish to borrow on mortgage of their lands, do so, by giving with the mortgage their coupon bond, as a matter of convenience to the lender, although the usual practice in the older States appears rather to issue a simple promissory note for the loan instead, which note is secured by the mortgage. Bond and mortgage securities without coupons have long been known. 1. Gaters v. Maddeley, 6 M. & W. down from more archaic conditions." 423; Nash v. Nash, 2 Madd. 133; Blackstone v. Miller, 188 U. S. 189, Richards v. Richard?, 2 B. & Ad. 447; 206, 23 Sup. Ct. 277, 47 L. Ed. 439; Scarpollini v. Acheson, 7 Q. B. 864; Bacon v. Hooker, 177 Mass. 335, 58 N. Phelps V. Phelps, 20 Pick. 556. E. 1078, 83 Am. St. Rep. 279. See "Bonds and negotiable instruments post, chapters on Bills and Notes, are more than merely evidences of Part III., ca. 7, 8. debt. The debt is inseparable from 2. See 1 Pars. Bills and Notes, 87, the paper which declares and consti- and cases cited ; WmS. Pers. Prop, tutes it, by a tradition which comes 17th Eng. ed. 205. 89 § 70 THE LAW OF PERSONAL PROPERTY. [PAKT II. Some of our present government loans are nothing more than promissory notes bearing interest; others have the character of bonds. The national debt of England is composed of several separate stocks, of which the most important is called the " consols," and a general designation is that of " stock in the public funds." We use the terms in this country, " government " or " public securi- ties," in general; and special loans were popularly designated, during our Civil War period, as the United States " seven-thirties," '^ five-twenties," and the like, according to some peculiar characteristic, of which we shall speak elsewhere. There are " Massachusetts " or " Ohio State bonds," and so on. As to what are more properly corporation bonds, appropriate names are used in the stock market; such as "Chicago City" bonds, or " Union Pacific Railroad " bonds, and the like. From what has been already said, it is evident that all loans on securi- ties of this sort are incorporeal chattels personal. Perhaps in the case of public securities of the United States, difficulty would be sometimes found in drawing the line between corporeal and incorporeal ; but we apprehend that while notes issued by legis- lative authority in pursuance of the Constitution, for circulation as a legal tender for the payment of debts, should be classed with gold and silver money as corporeal, others which were put forth to invite investment merely, being evidence of a debt to be paid thereafter, like the promissory note of an individual, ought to be regarded as incorporeal. This subject has not as yet received great attention in the courts."' 3. See Wms. Pers. Prop. 17th Eng. on Money, Public Securities, Bonds, ed. 313 et seq.; Craig v. Missouri, 4 &c. And see Attorney-General v. Pet. 410; Thomson v. Lee County, 3 Jones, 1 Mac. & G. 574, 585. Note Wall, 327; chapters, post, Part III., our "Liberty loan" of 1917. 90 CHAPTER IV. PERSONAL CHATTELS COKPOREAL AND INCORPOREAL CONTRASTED. § 71. Leading Distinctions between Corporeal and Incorporeal Chattels Personal. Having classified the various kinds of chattels personal under their appropriate headings of corporeal and incorporeal, let us now proceed to point out some of the leading distinctions which the law has applied to the two classes; or, if the reader prefers to call it so, as between clioses in possession and choses in action. § 72. As to Assignment and Transfer; Early Doctrine. Perhaps the most important distinction concerns the assign- ment or transfer of such chattels. Corporeal chattels personal might always be assigned and transferred by mere delivery of possession with appropriate intention.' But as to those incor- poreal, the old common-law rule was, that no assignment or trans- fer could be made; and of course corporeal delivery was imprac- ticable. We are still to bear in mind that incorporeal chattels personal, as such, were not known in the early days; but that choses in action, or, at most, the right to sue to recover some debt, claim, or demand, in the courts, were all which our ancestors regarded in applying their rule of prohibition. To permit a transfer of such a right was thought to encourage litigation, while the very attempt to transfer was looked upon with abhorrence as involving the guilt of maintenance, or maintaining a stranger in his private suit. These were, indeed, the days of primitive sim- plicity; and such a state of things could not last long. With the revival of trade, bills of exchange became introduced into the mercantile community of England. These, by the custom of merchants, were rendered negotiable; that is, they could be legally assigned or transferred by simple indorsement or delivery; and 1. See Wms. Pers. Prop. 17th Eng. ed. 69 ct seq. ; 2 Ewell's Bl. Ck)m. 441. 91 § 73 THE LAW OF PERSONAL, PROPERTY. [pART II, in the reign of Queen Anne promissory notes were made assignable by indorsement and delivery in the same manner; so that if a debtor could be induced to give his bill or note for what he owed, his creditor might pass the debt over to a third person, and prac- tically set the old policy of the law at defiance. Bills and notes therefore grew into favor very rapidly. Meantime an indirect method of assigning money rights was discovered ; for in the reign of Henry VII. it was determined that a person might assign over a debt secured by bond, by way of adjusting his own liabilities with a third person, though not for maintenance, and thus empower the assignee to sue in the assignor's name at his own cost ; which principle has since become commonly applied to choses in action generally.^ It has even come about that an instrument which is not a negotiable bill or note, but was intended as such, may, if valid, be proved and assigned as a contract or money right ; though primarily perhaps as an equitable rule and of course subject to equities against the assignor from which negotiable instruments are free."' § 73. Assignment; The Subject Continued; Old Rule of Law. The legal assignment of a debt is now usually made by an instrument in the nature of an assignment, coupled with a power of attorney, which confers authority from the creditor to his assignee to sue the debtor in the creditor's name ; and it is better to have such assignment by deed, or at all events, by writing of some kind; though a power of attorney of this sort may be con- ferred by parol."^ The transfer of debts or money rights by means 2. See Wms. Pers. Prop. 17th Eng. statutes confirm quite generally the ed. 31; 10 Co. Rep. 48 a; Bro. Abr. right to sue on choses in action, and Chose in Action, pi. 3, 15 Hen. VII. regulate this whole subject. 2; Bouvier's Diet. "Chose in Action;" 3. First Nat. Bank v. Carson, 60 Bac. Abr. Assignment; Welch v. Mich. 432, 27 K W. 589: § 76. Mandeville, 1 Wheat. 236, per Story, 4. Wms. Pers. Prop. 17th Eng. ed. J.; Pitts V. Holmes, 10 Cush. 93; 199; Heath v. Hall, 4 Taunt. 326: Bartlett v. Pearson, 29 Me. 9; Webb Howell v. Mclvers, 4 T. E. 690. See V. Steele, 13 N. H. 230; Blin v. Greenby v. Wileocks, 2 Johns. 1; Pierce, 20 Vt. 25. Local American Welch v. Mandeville, 1 Wheat. 236. 92 CHAP. IV.] PERSONAL CHATTELS CONTRASTED. § 74 of an assignment with power is recognized and protected in the courts of law. As a power of attorney is legally revoked by the death of the person giving it, the question might be asked whether such powers are available to the assignees of creditors under such circumstances ; but the general rule as to powers of attorney is qualified by this exception, that if a power be coupled with an interest, it survives the person giving it, and may be executed after his death. Hence, if a power of attorney be given on an assignment of a debt for a valuable consideration, it is generally made irrevocable in terms, and is certainly deemed irrevocable at law.^ But a power of attorney, though irrevocable during the life of the party giving it, may yet become extinct by his death.^ The principle which forbade the assignment at law of a debt is at the foundation of the law of contracts. For, as a general rule, a contract is not legally assignable.'' The instrument of contract (if there be any) passes, it is true, to the transferee, so that he can sue to recover the document ; for the instrument con- sidered by itself is a corporeal thing, and might perhaps be valu- able because it bore a distinguished person's autograph, or for other special reasons ; but the rights under a contract cannot be legally transferred at the old common law so as to put the assignee in the place of the assignor, and entitle him to sue in his own name. At best, he can only sue in the name of the original party who assigned the contract, and he is regarded rather as attorney than an out-and-out assignee.^ § 74. Assignment; The Subject Continued; Rule of Equity. iSTow, in equity, from an early period, the courts viewed the 5. Hunt V. Rousmanier, 8 \Mieat. sin^nod. Book 30, N. Y. Epts., Bender 174 ; ib., 1 Pet. 1. See Michigan Ins. ed., note, p. 262. Co. V. Leavenworth. 30 Vt. 11; Salt- 8. Sniitli Contr. 247, 248; Chitty marsh v. Smith, 32 Ala. 404; Walsh Contr. 131-133 and notes; 1 Pars. V. Whitcomb, 2 Esp. 565. Contr. 223-228 ; Story Eq. Jur., § 1056. See articles on the alienability of fl. Hunt V. Rousmanier, 8 Wheat. ^^^^^, .^ ^^^.^ .^ ^^ Harvard "Law 174 Review, 816, and in SO Harvard Law 7. What contracts may not be as- Review, 97, 449, 821. 93 § 74 THE I.AW OF PERSONAL PROPERTY. [PART II. assignment of a chose in action quite differently. Courts of equity, dealing with a great variety of rights, prospective interests, whether in real or personal estate, contingent gains, such as freight to be earned on a cargo to be procured, expectancies of heirs to their ancestor's estate, trusts and debts, claims and demands gen- erally, were wont to treat all assignments of incorporeal things, SO far as concerned their own jurisdiction, as amounting to noth- ing more nor less than an agreement to permit the assignee to make use of the name of the assignor at law for the purpose of recovery; or as a contract which entitled the assignee to sue in equity in his own name, and to enforce payment of the debt directly against the debtor, whether the latter had assented to the assignment or not ; making the debtor, as well as the assignor, if need be, a party to the bill.^ And as to things which had no actual or potential existence, but rested in mere possibility, equity would in a fair case support an assignment, not as a positive transfer operative in prccsenti, but as a present contract to take effect and attach as soon as the thing should come in esse} 9. See Story Eq. Jur., §§ 1040, 1043, held (particularly under the common 1055, 1057, and cases cited; Smith law aspect) that he cannot assign Man. of Equity, 9th Eng. ed. 244 future earnings where not actually et seq.; Wms. Pers. Prop. 17th Eng. engaged nor under contract, as out of ed. 133. some mere possibility of becoming 1. Story Eq. Jur., § 1040 ; Calkins employed. Mulhall v. Quinn, 1 Gray, V. Lockwood, 17 Conn. 154; Langton 105; Jermyn v. Moffitt, 75 Penn. St. V. Horton, 1 Hare, 549; The Wasp, SQO'; Wade v. Bessey, 76 Me. 413. But L. R. 1 Ad. & Ec. 367. A contingent this seems a narrow doctrine from the remainder may be assigned in equity, equitable standpoint; and hence an though not at law. Watson v. Smith, assignment of wages reasonably ex- 110 N. C. 6. pected to be earned in the future in a As to wages or earnings, while one specified employment, and not a mere may assign whatever he may earn indefinite expectation of earning hereafter under an existing and spe- money, is held valid in equity at all cific employment (Mallin v. Wenham, events, though founded upon no exist- 209 111. 252, 70 N. E. 564, 65 L. R. A. ing emplojTnent or contract. Edwards 602 n, 101 Am. St. Rep. 233; Rodij- v. Peterson, 80 Me. 367, 14 Atl. 936; keit V. Andrews, 74 Ohio St. 104, 77 Metcalf v. Kincaid, 87 Iowa, 443, 54 N. E. 747, 6 Ann. Cas. 761. See N. W. 867. O'Keefe v. Allen, 20 R. I. 414, 39 Claims for services already ren- Atl. 752, 78 Am. St. Rep. 884), it is dered may, with their lien incidents, 94 CHAP. IV.] PERSONAL CHATTELS CONTRASTED. § 74 But equity recognizes just limits to this doctrine, by its refusal to enforce such assignments as are against public policy. Assign- ments of future pay by officers of the government, whether in the civil, military, or naval service, have been discountenanced on this ground ; ^ although as to back pay, prize-money, and arrears of pension, it has been frequently decided otherwise.^ Legislation sometimes interposes to protect soldiers, sailors and others against assignments of this nature. And the assignment of a government claim is in general void under an act of Congress."* So, too, on principles of public policy, equity will not uphold assignments which plainly involve champerty or maintenance, nor where, in general, litigation would be thereby encouraged on a mere specu- lation. But, in this mattt?!* of money rights, equity deals more liberally than the law ; and while the assignment of a mere naked right to litigate, — such as the right to set aside a conveyance for fraud, — which is incapable of giving any benefit except through the medium of a suit, would not be enforced by courts of equity, because against public policy; yet they permit a person to take an assignment of the whole interest of another in a contract, or be readily assigned in any case. But assignment of officers' salaries, Book one who agrees to perform personal 25, N. Y. Rpts., Bender ed., note, services requiring skill or peculiar p. 364. Assignment of unearned sal- qualifications cannot, without the as- aries of public officers and future sent of the other contracting party, earnings generally. Book 29, N. Y. so assign over his executory contract Rpts., Bender ed., note, p. 7. to perform as to substitute another 3. See Story Eq. Jur., §§ 763, 1040, in his place to complete the service. and cases cited; Ileald v. Hay, 3 Gif. Sloan V. Williams, 138 111. 43. Local 467; Smith Man. Equity, 238-240. statutes now regulate to a consider- Cf., Johnstone v. Cox, 19 Ch. D. 17. able extent the subject of assignments And see as to Pensions, &c., c. post. of wages, and confirm the right upon 4. See Act Feb. 26, 1853, § 1. But pursuance of prescribed formalities. cf. 48 Fed. 43. And see, as to assign- See Day V. Vinson, 78 Wis. 198, 47 ing a public contract, Littlefield v. N. W. 269; 47 Minn. 364. Pinkham, 72 Me. 369; First National 2. Schwenk v. Wyckoff, 46 N. J. Bank v. Ottawa, 43 Kan. 294, 23 Pac. Eq. 560, 20 Atl. 259, 9 L. R. A. 221, 485; local statutes. Assignments of 19 Am. St. Rep. 438. Wages of fire- claims against the United States, Book men, Sandwich Mfg. Co. v. Krake, 66 30, N. Y. Rpts., Bender ed., note, Minn. 110, 68 N. W. 606. Validity of p. 337. 95 § 75 THE I.AW OF PERSONAL PROPERTY. [part II. security, or property which is in litigation, provided he does not make any advance beyond the mere support of the interest which he has so acquired. And, not to follow too far the subtile and rather finely drawn distinctions which are made in this respect of transactions against public policy, we may lay it down as well established in chancery, that a legatee may assign his legacy ; also that a creditor may assign his interest in a debt, although he may have already commenced a suit to recover it.^ § 75. Assignment; The Subject Continued; Modem Fusion of Equity and Common-Law Doctrines. Modifications, like these, of the rigor of the common law con- cerning the assignment of money rights, have produced a marked effect upon the modern jurisprudence of personal property.^ And 5. See Story Eq. Jur., §§ 1049-1054, and oases cited; Tjrson v. Jackson, 30 Beav. 384; Smith Man. Equity, 241, 242. The subject of the assignment of rights of action, as tending to the common-law offences of champerty ■and maintenance, is left by the later decisions in a state of considerable uncertainty. See Danforth v. Street- er, 28 Vt. 490; and Story Eq. Jur., § 1057 c, 10th edition. 6. A patent right is assignable, and so is a copyright; and such rights being conferred by statute they are likewise protected by appropriate legislation. In case of the former, where letters-patent are requisite, the thing to be assigned is not the mere parcliment, but the monopoly con- ferred, — the right of property which it creates; and, when the party has acquired an inchoate riglit, an assign- ment of it is legal, and an invention may be sold as well before as after the application for a patent. Act of Congress, July 8, 1870, K. S. U. S., § 4898; Gayler v. Wilder, 10 How. 477, 493 ; Rathbone v. Orr, 5 McLean, 132; Jones v. Eeynolds, 120 N. Y. 213, 24 N. E. 270. See Part III. c. 10, post, on Patents and Copyrights. An unliquidated balance of account is now assignable. Westcott v. Pot- ter, 40 Vt. 271. But not items in a mutual account unadjusted and before a balance is struck. Nonantum. Co. V. Webb, 124 Penn. St. 125, 16 Atl. 632. Assignment of the right to sell and canvass for a patented machine as agent may be verbal. Springfield V. Drake, 58 N. H. 19. And a claim for damages, though arising ex de- licto, of a kind which on the death of the party would survive to his execu- tors or administrators as assets, may also in many instances be assigned. Freeman v. Newton, 3 E. D. Smith, 246; McKee v. Judd, 12 N. Y. 622; Quin v. Moore, 15 ib. 432. But a mere right of action for a tort is not assignable unless statute permits. Hunt V. Conrad, 47 Minn. 557, 50 K W. 614, 14 L. R. A. 512, n.: Mur- ray V. Buell, 76 Wis. 657; Central 96 CHAP. IV.] PEESONAL CHATTELS COXTRASTED. 75 in this country, where we find that, in many States, a fusion, more or less imperfect, of equity and common-law doctrines is gradually being accomplished, it appears to be already a well- settled rule that, if the assignment of a debt be followed by the debtor's promise of payment to the assignee, the latter may enforce it by a suit in his own name; inasmuch as such a promise operates as a ratification of the duty recognized in equity which R. V. Brunswick R., 87 Ga. 386; as- signability of causes of action for tort, Book 3, N. Y. Rpts., Bender ed., note, p. 401. Nor the right to bring a bill in equity for a fraud oommitted on the assignor. Gardner v. Adams, 12 Wend. 297; Story Eq. Jur., § 1040 h; Dunklin v. Wilkins, 5 Ala. 199 ; Dick- inson V. Seaver, 44 Mich. 624 ; 104 Mass. 353. And see Dewitt v. Brisbane, 16 N. Y. 508. For in these last two in- stances an assignment is thought to be contrary to public policy, and savoring of the character of mainte- nance ; grounds, as we have just seen, upon which equity refuses to lend its assistance to petitioners. Supra, § 74. But as to waiving the tort one may assign a right of action for conver- sion. Smith V. Thompson, 94 ilich. 381. One's interest in a suit may be as&igned in various' modem instances. As a suit for negligence. 78 Mich. 681. Or against a common carrier for loss or injury to goods. Norfolk R. V. Read, 87 Va. 185. Or any cause of action founded on injury to prop- erty which survives. Webber v. Quaw, 46 Wis. 118 ; Chouteau v. Boughton, 100 Mo. 406, 138 S. W. 877. But an instalment of alimony not yet due is not assignable. Kemp- ster v. Evans, 81 Wis. 247, 51 N. W. 327. Nor is a contract founded in personal trust and confidence assign- able at the option of one party alone. 7 97 Lansden v. McCarthy, 45 Mo. 106; Sloan v. Williams, 138 111. 43, 27 N. E. 531. A promissory note with its accompanying bond or guaranty may be thus transferred. 43 Minn. 466. Or stock certificates with their inci- dental rights. Wages or earnings are assignable. § 74, note. And the pref- erence or lien that goes with it. Or a broker's or agent's profits. Knevalsv. Blauvelt, 82 Me. 458, 19 Atl. 819. Or a la%vj'er's fees in a suit, subject to equities of parties litigant. 36 Fed. 147. Heirs or legatees may assign. 142 Mass. 366; 62 Hun, 622; even expec- tancies in an ancestor's estate. Fritz's Estate, 160 Penn. St. 156, 28 Atl. 642. Or partners, so as to give the assignee the right to sue for a partnership accounting. Greenwood V. Marvin, 111 N. Y. 423, 19' N. E. 228. A right of action on a contract is assignable, unless statute or the nature and terms of the contract ex- clude it. First Nat. Bank v. Maxfield, 22 Atl. 479. 83 Me. 576. Particularly if its obligation may be dischargiHi by a mere money payment. Rochester Co. V. Stiles Co., 135 N. Y. 209. The limits prescribed in a contract must be observed. Burck v. Taylor, 152 U. S. 634, 14 S. C. 696. Statutes are found in aid of this right to assign. And see Codman v. Brooks, 159 Mass. 477. It is held against public policy for 75 THE LAW OF PERSONAL PROPERTY. [part II. resulted from the assignment.'' This subject is regulated by vari- ous practice codes as to the party in whose name a suit should be an executor (semble any fiduciary in the probate court) to assign his fees not yet ascertained and approved. Worthington, Re, 141 N. Y. 9, 35 N. ^E. 929, 23 L. R, A. 97. 7. Compton v. Jones, 4 Cow. 13 ; Crocker v. Whitney, 10 Mass. 316; Cromelien v. Mauger, 17 Penn. St. 169; 2 Am. Lead. Cas. 5th ed. 145, 209, and eases cited; Tiernan v. Jackson, 5 Pet. 580. " If," as was observed in a Penn- sylvania case, " there be a debt due by the defendant, which has been assigned to the plaintiff, and in con- sideration of that debt and that as- signment the defendant expressly promises to pay the plaintiflF, the latter has a good cause of action." Per Lowry, J., in Cromelien v. Mau- ger, 17 Penn. St. 169. But the law courts of England do not seem to have proceeded quite so far in favor of the assignee; for they adhere very strictly to the doctrine that a promise made by the debtor to his- creditor for the payment of his debt to a third person is not valid unless such third person is a party to the contract, and agrees to relinquish some claim or demand against the original creditor ; even though such third person subse- quently accepted the promise in lieu of an original demand which he had against the original creditor. Coch- ran V. Green, 9 C. B. x. s. 448. See Lilly v. Hays, 5 A. & E. 548. In New Hampshire it has been decided directly to the contrary. Warren v. Batchelder, 16 N. H. 580. But see Blymire v. Boistle, 6 Watts, 182. See Am. Lead. Cas. 5th ed. 209-217. The common-law objection to Such a transaction would be that the third person does not thereby discharge the original creditor from liability on the debt due to himself, but accepts the debtor's liability to the original creditor as a sort of collateral secu- rity for his own benefit. But in equity such a transaction would be viewed as an equitable appropriation, trans- fer, or assignment of the debt. And, to sustain an equitable assignment, it is not necessary that the debt, on account of which the transfer is •made, should be satisfied; it is enough that it exists ; and an assign- ment by way of collateral security is as valid as if it were accepted in pay- ment. See 3 Lead. Cas. Eq. 379, 3d Am. ed.; 2 Am. Lead. Cas. 214, 215. And see chapter on Debts, post. It is towards this latter and more liberal view of* an assignment of money rights that the American courts are steadily tending. " The ordinary course," says Bo- vill, C. J., in a modern English case, " where it is intended to give a secur- ity on a fund in the hands of a third party, is to give an order upon such third party to pay, or an authority to the creditor to receive, the money." Field V. Magaw, L. E. 4 C. P. 660. In this case it was held that a mere verbal promise (without notice to the debtor) to pay money when the debtor received a debt due him from a third person constituted no assignment of such third person's debt. lb. Upon the doctrine of equitable assignment of a debt, which is subtle, the com- mon-law courts inclined to put a re- straint. And yet in English practice it is a proper equitable plea (allowed 98 CHAP. IV.] PERSONAL CHATTELS CONTRASTED. § 76 brought; but there are still various informal assignments which, if not legal, are upheld as equitable. § 76. The Same Subject; What May now be Assigned. Every species, therefore, of incorporeal personal property, with a few nominal exceptions, — as certain rights to litigate, whose transfer is still deemed repugnant to sound policy,^ or made illegal by statute,^ and in positive instances things with no actual or potential existence,^ — may now be assigned. Debts, claims, and demands of a money value may accordingly change o"\vners ; which is constantly done, though not always without pursuing formalities of a peculiar sort, based upon the theory that an incorporeal chat- tel of a particular class requires delivery of its appropriate muni- ment or voucher and of a writing of transfer besides. A contract involving personal services cannot, however, be assigned, as every in a court of law, since otherwise equity would enjoin), that the plain- tiff assigned tlie debt to B, who gave notice to the defendant, and that the assignment still remains in full force. Jeffs V. Day, L. R. 1 Q. B. 372. 8. A right of action for malicious prosecution is not assignable even after verdict. Lawrence v. Martin, 22 Cal. 174. And neither is a right of action for assault. Weber v. Gaffin, (Nova Scotia), 9 East L. R. 277. 9. Supi-a, § 74, and note. All right and title to the goods in a replevin suit is upheld. Caldwell v. Perry, 86 Mich, 266. 1. Kendall v. United States, 7 Wall. 113; Gragg v. Martin, 12 Al- len, 498. An assignment of fish not yet caught is void as' being of a mere possibility. Low v. Pew, 108 Mass. 350, 11 Am. Rep. 357. So for the same reason the unearned fees of an executor before they are fixed are not assignable. In re Worthington, 141 N. Y. 9, 35 N. E. 929, 23 L. R. A. 97. An assignee of hay to be grown on a certain field has a title inferior to that of a purchaser of the hay after it is cut. Shaw v. Gilmore, 81 Me. 396, 17 Atl. 314. A contingent remainder in chattels can be a.ssigned only by estoppel as in case of land. Ridgeway v. Under- wood, 67 111. 41D. This rule of the common law has been modified by statute and decision so that a contingent interest may be assigned. Ham v. Van Orden, 84 N. Y. 257; Putnam v. Story, 132 Mass. 205. A contingent equitable remainder may be taken by i^iuitable process and sold at suit of a creditor of the remainderman. National Park Bank V. Billings, 144 N. Y. App. Div. 536, 129 N. Y. Supp. 846. 99 § 76 THE LAW OF PERSONAL PROPERTT. [PART II. man has the right to decide with whom he will have contractual relations.^ Equity is constantly encroaching upon the legal doctrine of assignment, and nullifying the letter of transfer requirement, out of regard to the transferring party's intent.^ All personal prop- erty of an incorporeal character, if not negotiable, may, as a rule, be assigned by the owner at the present day; and even the trans- fer of a negotiable instrument by mere delivery, without the technical indorsement, has been in certain instances protected, for the transferee's benefit, on the broad basis of a transferring intent and an equitable assignment; though an assignment imports not, like an indorsement, the ability of the primary debtor to pay, but rather, if for value, the thing's genuineness, as in a corresponding transfer of corporeal property."* In this connection the terms " legal " and " equitable " assign- ments are sometimes used confusedly. The law has in truth so far succumbed to equity, that it now lends its support and pro- tection to the enforcement of an assignee's rights, though in prac- tice requiring suit to be brought in the assignor's name, — a practice, moreover, which local statute has largely modified. Equity, when invoked, pursues remedies after its ovni form. But the doctrine of legal assignment has become substantially that of equitable assignment, as concerns the right ; and in general every transfer by assignment of incorporeal chattels, whether by deed, by writing not under seal, or even by delivery of the muniment or voucher with mere words of parol transfer (though local stat- utes often repudiate parol assignments to a great extent, while 2. Boston Ice Co. v. Potter, 123 Stiles v. Farrar, 18 Vt. 444; Dyer v. Mass. 28, 25 Am. Eep. 9. See BuTck Homer, 22 Pick. 253 ; Giffert v. West, V. Taylor, 152 U. S. 634, 14 Sup. Ct. 33 Wis. 617 ; Robinson v. McXeill, 51 696, 38 L. Ed. 578. Assignment of 111. 225; First Nat. Bank v. Carson, mechanics' lien, Book 26, N. Y. Rpts, 60 Mich. 432, 27 X. W. 589. And see Bender ed., note, p. 1098. § 84, post, as to indorsement. The 3. Winfield v. Hudson, 4 Dutch, selling of non-transferable trading 255; Welch v. Mandeville, 1 Wheat. stamps may be enjoined. Sperry & 236, per Story, J. Hutchinson Co. v. Weber & Co., 161 4. Wolfe V. TylQT, 1 Heisk. 313; Fed. 219. 100 CHAP. IV,] PERSONAL CHATTELS CONTRASTED. § 77 equity inclines to sustain them), is upheld in law as well as equity.^ § 77. The Subject Continued; What Constitutes an Assignment. As a general rule, anything written, said, or done in pursuance of an agreement, and for valuable consideration, or in considera- tion of some pre-existing debt,^ to place a money right or fund out of the original owner's control, and to appropriate in favor of another person, amounts to an equitable assignment. Hence no particular writing or form of words is necessary, provided only a consideration be proved, and the intention of the parties made apparent by suitable evidence.^ And assignment of chattels cor- poreal or incorporeal is made, according to the nature of the property and the circumstances, by a direct transfer or by some draft or order upon a particular fund. Any act, therefore, which amounts to an appropriation of a particular fund — as where an order is drawn for the whole of a specific sum or deposit — constitutes, in equity, an assignment thereof, and (upon due notice to the drawee) will bind it.^ In like manner there may be an appropriation of this specific fund, pro tanto, to the amount of an order, which equity courts, at least, will protect.^ But though the phraseology used is immaterial, 5. See Allen v. Pancoast, Spencer Hoey, 89 N. Y. 537. Best evidence (N. J.), 68; Welch v. MandeAnlle, 1 rule applied to assij^nments, see Wheat. 236; Hooker v. Eagle Bank, Cliainberlayne Evid., § 3570. 30 N. Y. 83. 7. Story Eq. Jur., § 1047, and cases But the assignee of a legal right cited ; Row v. Dawson, 1 Ves. 332 ; may not proceed by bill in equity Morton v. Naylor, 1 Hill, 583. Oral merely because he cannot sue in law assignments, Book 37, N. Y. Rpts., in his own name. Hayward v. An- Bender ed., note, p. 559. drews, 106 U. S. Supr. 672; Walker 8. Mandeville v. Welch, 5 Wheat. V. Brooks, 125 Mass. 241, per Gray, 277; Robbins v. Bacon, 3 Greenl.346; C. J., commenting upon Story Eq. Black v. Zacharie, 3 How. (U. S.) Jur., § 1057 a. 483; McWilliama v. Webb, 32 Iowa, 8. A valuable consideration actually 577 ; Conway v. Cutting, 51 N. H. rendered is a necessary element to an 407; Blin v. Pierce, 20 Vt. 25. equitable assignment, the assignment 9. I^ewis v. Berry. 64 Barb. 593 ; being insufficient in law. Tallman v. Christmas v. Russell, 14 Wall. 69; 101 § 77 THE LAW OF PEESONAL PROPERTY. [part II. provided the assigning intent be clear, there must be something more than a mere promise — an actual appropriation in fact, without reserving to the holder of the fund any control over it — to constitute an assignment.^ And the splitting up of a demand, though otherwise admissible in equity, is said to be ineffectual as a part assignment, without the debtor's assent, that is to say, the assent of the third party who has the payment to make, inasmuch as it subjects him to responsibilities and embarrassments not orig- inally undertaken by him ;^ a theory which in equity yields often, in these days, to the practical accomplishment of just ends.^ A remittance may be specially made for paying off a certain creditor, so as to constitute an assignment of that remittance ; and wherever A owes B, and B owes C, and it is mutually agreed that A shall pay C (the principle which is at the foundation of foreign exchange transactions), there is an assignment which the courts will protect,'* if the mutual arrangement is complete.^ Indeed, it Moody V. Kyle, 34 Misa. 506; Public Schools V. Heath, 2 McCart. 22. But only upon consideration. Alger v. Scott, 54 N. Y. 14. 1. Christmas v. RusSell, supra; Field V. Magaw, L. R. 4 C. P. 660; Canfield v. Monger, 12 Johns. 346; Blin V. Pierce, 20 Vt. 25; Story Eq. Jur., § 1044; Clarke v. Thompson, 2 R. I. 146. 2. Story, J., in Mandeville v. Welch, 5 ViTieat. 277; Getchell v. Maney, 69 Me. 442. See Carvill v. Mirror Films, Inc., 163 K Y. Supp. 268, (App. Div.), which seems to uphold the right of the assignee under a partial assignment to sue at law. A recent view is that the as- signee should be allowed to sut at law by joining the assignor as co- plaintiff. Dickinson v. Tyson, 125 N. Y. App. Div. 735, 110 N. Y. Supp. 269. Assignment of part of claim, validity of, Book 32, N. Y. Rpts., Bender ed., note, p. 1143. But as this assent raay be implied, and notice of an assignment should always be given the debtor, the rule is not harshly en- forced. See Gibson v. Cook, 20 Pick. 15 ; Stevens v. Bowers, 16 N. J. L. 16; Gardner v. Smith, 2 Heisk. 256; McPike V. McPherson, 41 Mo. 521; Pomeroy v. Manhattan Life Ins. Co., 40 111. 398. 3. Exchange Bank v. iMcLoon, 73 Me. 498', and various English and American cases cited. The assign- ment of a fractional part of a fund is good in equity where the person who is to pay raises no objection. Kings- bury V. Burrill, 151 Mass. 199; Lan- igan V. Bradley & Currier Co., 50 N. J. Eq. 201, 24 Alt. 505. 4. Harwood v. Tucker, 18 111. 544; Wiggins V. McDonald, 18 Cal. 126. 5. See Borden v. Boardman, 157 Mass. 410, 32 N. E. 469. 102 CHAP. IV.] PEKSO.NAL CHATTELS CONTRASTED. § 77 has long been a settled principle that any liquidated and complete debt may be transferred by a triple arrangement, so that the debtor of the assignor shall become the debtor of the assignee, and that such an assignment is with sufficient consideration ;^ but (subject to modern qualifications as to giving a debtor notice of assignment'^) the principle of the case requires not only a definite and existing fund or debt, but the assent of the debtor or depos- itary to the assignment.^ A general order drawn on no particular fund is no assignment f and merely to draw upon the debtor or party who makes payment is insufficient, whether pro tanto or otherwise.^ No particular form of assignment is at the present day requisite ; since the only indispensable thing upon which equity has insisted is that the assignor intended to transfer, and the assignee to accept the transfer; so that the latter might be enabled to come into court, and have the full formalities on his behalf.^ An instru- ment in the form of a deed setting forth the parties, the subject- matter, and the consideration, and reciting that the one party does hereby " grant, sell, assign, and set over " the subject-matter described, and all his " right, title, property, and interest " in the 6. lb. ; Fairlee v. Denton, 8 B. & C. Avitliout the bank's acceptance. First 395; Crowfoot v. Gurney, 9 Bing. Nat. Bank v. Clark, 134 N. Y. 368, 372; Stiles V. Farrar, 18 Vt. 444. 33 N. E. 38. See further, Hull v. 7. See infra, % 78. S"^';''''„^^^ J"'. ^^^' ^ ^- ^- f .^^l 8. See Kendall v. Unitwi States, 7 Wall. 113, per Miller, J.; Ford v. Garner, 15 Ind. 298. An unaccepted ,. , .^ , , , .„ r 1 J ti. • 2. an entire and specific fund makes a bill of excnanore or draft is not even , , . , „ , -,, -.r , ., , , . . o V le^al assi^ment. Hemphill v. Yerkes, an equitable assignment. Cashman v. *= ^ *^, ^ .,..,„„ ,t^ ., tr • n^ o 1 on- o^ -D oQo 132 Penn. St. 545, 19 Atl. 342. \Mule Harrison, 90 Cal. 297, 27 Pac. 283. , , , . ... part of a debt or monev claim is not 9. Drafts and orders are not assign- ^ggi^able at law, it mav be assigned ments. Book^l2, N. Y. Rpts., Bender .^ ^^^^.^^^ ^^ ^^ ^^ constitute an equi- ed., note, p. 331. ^^^5^,^ ,Jpj^ ^^p^^ ^j^p ^^^^^ Warren v. 1. Hall V. Flanders, 83 Me. 242, 22 First Nat. Bank of Columbus. 149 HI. Atl. 158; Covert v. Rhodes, 48 Ohio 9, 38 N. E. 122, 25 L. R. A. 746. St. 66, 27 N. E. 94. The check of a 2. Fourth Street National Bank v. genera! depositor for part of his de- Yardley, 165 U. S. 634, 17 Sup. Ct. posit is not an assignment pro tanto 439, 41 L. Ed. 855. 103 First Nat. Bank v. Hartman Steel Co., 87 Ga. 435, 13 S. E. 586. But a check or draft or order upon § 77 THE LAW OF PEESONAJL PROPEETY. [PAET II. same, to the other party, " to have and to hold the same " to the latter, " his executors, administrators, and assigns, to his and their use and hehoof forever," is a suitable means of making formal assignment; the instrument being properly dated and executed by the assignor, upon the addition of a power-of-attorney clause to enable the assignee to collect and recover the same, and being duly delivered.^ Some such formal writing is peculiarly appro- priate to the transfer of a mere debt, claim, or demand, like wages, a legacy, or a money balance due, which is utterly without visible or tangible voucher of title ; and it may well accompany the delivery of certificates of stock, bonds, letters-patent, and other muniments of title, in case one of these latter money-rights be the property assigned. But other writings, manifesting by language the assigning intent, are constantly accepted by the courts as suffi- cient, if duly delivered, without regard to any particular form of words, or even requiring the use of the word " assign," or an expression of value received, — such as an order on the debtor ; * a letter of attorney with words expressive of an assigning purpose, even though not irrevocable in terms ; ^ or special written direc- tions to the debtor ; ^ while, on the other hand, are writings which have been pronounced insufficient because indicating less than an assigning intent on the owner's part, such as the mere authority to another to collect and receive on his behalf.^ Assigning a security or document of title, not negotiable, by handing it over with the assignor's name indorsed on the back, is often held sufficient ; the 3. See Curt. Conveyancer, "Assign- Rich, 6 Vt. 666; Adams v. Robinson, ments;" Bromley v. Holland, 7 Ves. 1 Pick. 461. 28; People v. Tioga, 19 Wend. 73. 5. Weed v. Jewett, 2 Met. 608; To execute an assignment without Bromley v. Holland, 7 Ves. 28 ; Peo- delivering it is InsuiBcient. Clark v. pie v. Tioga, 19 Wend. 73. Boyd, 2 Ohio, 56; Ritter v. Steven- 6. See King, Re, 14 Ch. D. 179; 7 son, 7 Cal. 388. Oh. D. 419 ; In re Hurst, 7 Wend. 4. Field v. Magaw, L. R. 4 C. P. 239 ; Able v. Shields, 7 Mo. 120. 660; Tiernan v. Jackson, 5 Pet. 59&; 7. Green v. Ashby, 6 Leigh, 135; Blin v. Pierce, 20 Vt. 25 ; Clarke v. Spain v. Hamilton, 1 Wall. 604 ; Rob- Thompson, 2 R. I. 146; Moore v. inson v. Tipton, 31 Ala. 595; Ford Lowrey, 25 Iowa, 336; Harrington v. v. Garner, 15 Ind. 298; Boesch v. Graff, 133 U. S. 697. 104 CHAP. IV.] PEKSONAL CHATTELS CONTRASTED. § 77 indication here being, not to indorse as in negotiable paper, but as it would appear (especially if the word " assigned " were writ- ten or there was a printed blank on the back of the instrument which was really signed by the assignor), to authorize the assignee to write a formal assigimient to himself over the signature.^ One should not expect indorsement of a non-negotiable instrument like a stock certificate to have the same effect as indorsing a bill or note; though mercantile tendency is so greatly to assimilate all such instruments.^ Far less than this is acceptable, however. Even gifts, transfers utterly without consideration, are now estab- lished, as to many species of incorporeal chattels, by merely deliv- ering the security or document of title with no other writing whatever; * which is a rule of application, no less, but rather more, to transfers for value.^ There should be, doubtless, the intent to transfer title accompanying the delivery; but, upon proof of suitable intent, any assignment by word of mouth will stand, as the rule is now applied, — even, as it is held, the assign- ment of an account, or other incorporeal money right utterly with- out corporeal voucher; and the verbal assignment which is thus established by the conduct of the parties, as what they really meant, is at least enough to entitle the assignee to equitable protection in the courts, proper notice thereof having been given to the debtor."' A like principle is applicable to re-assignments ; ^ and 8. See Nevill v. Hancock, 15 Ark. failed to execute properly. Mowry v. 511; Ryan v. Maddux, 6 Cal. 247; Todd, 12 Mass. 281. Odenheimer v. Douglass, 5 B. Mon. g. But cf. Tallman v. Hoey. 89 N. 107;Hen]eyv. Bush, 33Ala. 636. ^ 537 p^^, transaction may be 9. See White v. Brooklyn, 122 N. Y. ^^^^^ .^ ^^^^^.^^ ^^ assignments. See 53, as to indorsing a tax certificate chamberlayne Evid., § 3546. by way of assignment. 1. 2 Schoul. Pors. Prop., §§ 75, 166; 3. Crane v. Gough, 4 Md. 316: Pass Story Eq. Jur., § 1047. And see Licey v. McRea, 36 MisS. 143 ; Noj-es v. V. Licey, 7 Penn. St. 251; Grain v. Brown, 33 Vt. 431; Hackett v. Mox- Paine, 4 Gush. 483; Boyd v. Eock- ley, 65 Vt. 71, 25 Atl. 898; Garnsey port, &c.. Mills, 7 Gray, 406. Hence v. Gardner, 49 Me. 167; Gurrier v. one might deliver the security so as Howard, 14 Gray, 511; Cleveland v. to give the transfer effect, though an Martin, 2 Head, 128; BriggS' v. Dorr, aasignment accompanied it which he 19 Johns. 95; Galway v, Fullerton, 105 § 77 THE LAW OF PERSONAL PROPERTY. [part IL parol authority given by the owner to another to assign for him in writing has been pronounced satisfactory.^ An instrument of assignment ought of course to be suitably delivered and received, as between the parties.** 2 C. E. Green, 390; Durst v. Swift, 11 Tex. 273. 4. Ball V. Larkin, 3 E. D. Smith (N. Y.), 555; Sumpter v. Tucker, 14 Ark. 185. The doctrine of the text is affected somewhat by local statutes and practice, as applied to certain classes of personal property. But the rule is broadly applied as to strictly personal chattels; even to dispensing in most States with assignments of bonds and other specialties by instru- ment as solemn as the original. See Currier v. Howard, 14 Gray, 511; Gillett V. Campbell, 1 Den. 520. But see Chadsey v. Lewis, 1 Gilm. 153. Mortgages of personal property follow the rule. But the principle is not uni- versally admitted as to mortgages of real estate. Cf. DufBeld v. Elwes, 1 Bligh, N. s. 533; Allen v. Pancoast, 1 Spencer, 68 ; Prescott v. Ellingwood, 23 Me. 345; Olds v, Cummings, 31 111. 188. 5. Spiker v. Nydegger, 30 Md. 315. See the clear language of Shaw, C. J., in the Massachusetts* case of Pal- mer V. Merrill, 6 Gush. 282, 286 (1866). Here the insured person under a life policy, by his indorsement in writing, assigned part of the sum thereby insured, but still kept the policy in his bands; and upon this ground, as well as others, it was held that the assignment was insufficient, although notice of the assignment had been given to the insurers. Palmer v. Merrill, 6 Cush. 282. But, when ac- companied by suitable delivery, the assignment of a life-insurance policy is good whether absolutely or by way of moregage or pledge to secure some debt. Wright v. Wright, 1 Ves. 409 ; Ashley v. Ashley, 3 Sim. 149; St. John V. Am. Mut. Life Ins. Co., 3 Kern. 31. See c. post, as to Life In- surance. Policies of insurance against fire or marine risks are not of their own nature assignable, being in the nature of personal contracts with the party insured; though, with the in- surer's assent, an assignment may be and frequently is effected, where, for instance, the insured property is sold or made security for borrowed money. Flanders Fire Ins. 69, 434; Lynch V. Dalzell, 4 Brown Pari. Cas. 431; ^tna Ins. Co. v. Tyler, 16 Wend. 385. See post, Part III., c. 11. If a bond is assigned, it should be deliv- ered to the assignee. See Smith Man. Eq. 247; Carey v. Dennis, 13 Md. 1; Chase v. Breed, 5 Gray, 440. And the assignment of shares in joint-stock companies, such as banks and railroad companies, by way of pledge or se- curity for money advanced, is usually effected by delivery of the certificates, with a power of attorney to the lender to make the actual transfer on the company books; while upon an abso- lute sale of stock the old certificates should be delivered up to the company and new ones issued. 2 Kent Com. 577, n., and Part III., e. 9, post. Upon this topic we shall have more to say when we consider at length the various species of incorporeal prop- erty. 6. See assignment void for want of 106 CHAP. IV.] PERSONAL CHATTELS CONTRASTED. § 78 § 78. The Subject Continued ; Notice of Assignment to Debtor, etc. The principle of an assignment being, where incorporeal rights are concerned, that three parties, the assignor, the assignee, and the debtor, are to be regarded in the transaction, the rights of an assignee are not taken to be perfect so long as the debtor is ntterly ignored. The old-fashioned assignment viewed the three parties as standing on an equal vantage ground of mutuality.'' But the modern rule pays less deference to the debtor, unless specially compelled by statute or the contract; for it is usually satisfied when simple notice of the assignment is given to the debtor. In order, then, to perfect an assignment of incorporeal personalty not of a negotiable character, there must be at least notice of such assignment given to the debtor; else, by the law of England and many of the United States, the assignee's rights are postponed to the subsequently acquired bond fide claims of creditors and pur- chasers against the assignor, and to all intervening rights and equi- ties of the debtor himself.^ The debtor avoids the assignee's claim by bond fide paying the assignor before notice of the assignment ; though, upon the receipt of notice, his relations are changed, and he makes payment to any other party than the assignee at his peril.^ So, too, as to subsequent purchasers and creditors, who- ever takes a new assignment with notice of a prior assignment to another, which carried the legal title, acquires no interest in the thing; while a second assignee, who takes without such notice delivery before the assignor died. 50 Ilatkett v. Martin, 9 Greenl. 77; Ohio St. 444. Goodrich v. Stanley, 23 Conn. 79; 7. Supra, § 73. Murdock v. Finney, 21 Mo. 138; Reed 8. Dearie v. Hall, 3 Russ. 1; Bishop v. Marble, 10 Pai; Child v. Baylie, Cro. J. 459; ed. 404. 2 Kent Com. 352. 4. 8 Co. 94 b. 197 § 138 THE LAW OF PERSONAL PROPERTY. [ PART II. death which one could not pass in his lifetime by gift, grant, or conveyance ; nay, that even this favor could only be shown, when, as in the above instance, merely the use of the chattel, and not the chattel itself, was given to the first legatee.^ From chattels real the same doctrine appears to have extended to chattels per- sonal, under like restrictions; and it became a rule that limita- tions of goods and chattels generally, by way of remainder, after a bequest for life, were good; the property being supposed to continue meantime in the testator's executor, and the use only of the chattel being given to the first legatee/ Chancery pursued this doctrine for a time; but a distinction so artificial being found unsatisfactory, it was at last thrown aside, and a broader rule was announced, such as might seem better calculated to enforce the intention of a testator and do more exact justice between the objects of his bounty. Before the close of the seventeenth century it was clearly settled that, if a person devise and bequeath goods to A for life with remainder over to B, it is a good limitation to B, and this whether the goods or the usq of the goods were given to A by the terms of the will.^ For equity found the civil and canon laws available in this respect, which construe the use of the thing and not the thing itseK to pass, where the first interest is for a limited time.^ In all such cases A has merely a life interest ; while B has a vested interest by way of remainder, which he may dispose of at his pleasure; and chancery compels the person to whom courts of law may have awarded the legal interest to make good any such disposition. 6. See 2 Ewell's Bl. Com. 398. Trusts, L. R. 6 Eq. 589. As to the 7. lb.; Eq. Ca. Abr. 360. See Wnis. bequest in expectancy to one named Pers. Prop. ITtli Eng. ed. 404-406; as executor, see 4 Ch. D. 841. Among Fearne Cont. Rem. 402, 404. the many cases where future estates 8. Freem. 206; 2 Kent Com. 352; in personal property have been re- 2 Bl. Com. 398. cently sustained are the following: 9. Hyde v. Parrat, 1 P. Wms. 1. Thomas v. Castle, 76 Conn. 447, 56 Subject to the rule against perpetu- Atl. 854; Trogdon v. Murphy, 85 111. ities (to be noticed post) one may 119; Ackerman v. Vreeland, 14 N. J. create successive life or temporary Eq. 23; In re Albiston, 117 Wis. 272, interests by his will. See Grylls'a 94 N. W. 169; Ridgely v. Ridgely, 198 CHAP. VII.] PERSOXAL PROPERTY IX EXPECTANCY. § 139 § 139. Expectant Interests Created in Personalty by Deed of Trust, etc. Nor is it longer necessary that limitations of this sort should be by will; they are equally good when made by deed of trust. ^ Settlements by way of remainder, whether of things real or per- sonal, are not very common in this country; the genius of our institutions being somewhat opposed to fettering the transmission of property. But in England the deed of trust comes frequently into requisition for creating and preserving family entails. Whenever a settlement of any kind of personal property is to be made, the property is assigned to trustees, in trust for A for his life, and after his decease in trust for B, and so on. The assign- ment to the trustees vests in them the whole legal property at law ; while in equity the trustees will be compelled to pay the entire income to A for his life, and after his decease to B, and so on until the trusts are completely fulfilled.^ Settlements of this sort are to be found in some of our older States ; and whether common in practical application or not, the doctrine that personal property may be limited by way of remainder after a life interest created at the same time is fully recognized in the United States as well as in England, especially as regards testamentary dispositions.^ It has been a matter of dispute whether deeds of this sort (as contrasted with wills) can be upheld unless expressed to be in trust."* However this may be, equity, as is well known, would reluctantly suffer any trust to fail for want of a trustee to support 100 Md. 230, 5? Atl. 731; Ehode 39Q. For slji estate pur autre vie, see Island Hospital Trust Co. v. Noyes, In re Barber, 18 Ch. D. 624. 26 R. I. 323, 58 Atl. 999; In re Moore, 3. See cases supra; 2 Kent Com. 15a N. Y. 602, 46 N. E. 960, 2 Prob. 352, 353, and n.; Moffat v. Strong, Rep. Ann. 130; Bennett v. Bennett, 10 Johns. 12; LangAvorthy v. Chad- 217 111. 434, 75 N. E. 339, 4 L. R. A. wick, 13 Conn. 42; Healey v. Tappan, N. s. 470, and note. 45 N. H. 243; Progdon v. Murphy, 1. See 2 Ewell's BI. Com. 398, 85 111. 113. Archbold, n.; Fearne Cont. Rem. 406; 4. Betty v. Moore. 1 Dana, 237; Child V. Baylie, Cro. J. 459: Porter V. ]Morro\v v. Williams, 3 Dev. 263. Tournay, 3 Ves. 311; 2 Kent Com. Contra, Powell v. Brown, 1 Bailey, 352 ; Bill V. Cureton. 2 Myl. & K. 512. 100. 2. Wms. Pers. Prop. 17th Eng. ed. 190 § 140 THE LAW OF TERSONAL. PROPERTY. [PART II. it. And in instruments which settle goods and chattels to the wife's separate use, the court supports the trust by making the husband himself, if no other be found, the trustee, and charging him with its faithful execution.^ § 140. Exception as to Perishable Chattels. But the doctrine of expectant interests in personal property applies in strictness only to those species of chattels which might be designated as of a durable nature. Perishable chattels consti- tute an exception to the rule. Thus, if wine, corn, hay, and other articles for food and drink, whose use consists presumably in their consumption, be bequeathed to one for life, with limitation over to another by way of remainder, it is held that the limitation over cannot take effect, even though the first-named person should die in the testator's life.^ The reason given is one of construction: that the gift or bequest of such articles for life must have been intended as an absolute gift, since one could not use without using up the property.^ But if we were to extend that principle very far, we should be likely to frustrate instead of carrying out a testator's wishes, in many instances. There are various kinds of personal property, of a more or less perishable nature ; and the word " durable " must be used with reference to movables in a relative rather than an absolute sense. Tools and implements, garments, ships, furni- ture, and books, are all worn out in time, though their use does not so completely necessitate their consumption as in the case of articles for food and drink. Leaseholds and annuities, too, grow less valuable by the lapse of time. Equity does not disregard the 5. See Schouler Dom. Eel., §§ 182, 30; Merrill v. Emery, 10 Pick. 185; Bennett v. Davis, 2 P. Wms. (Mass.) 507; German, v. German, 27 316; Wallingsford v. Allen, 10 Pet. Penn. St. 116; Perry Trusts, § 547; 583. Tyson v. Blake, 22 N. Y. 558; Shaw 6. Andrew v. Andrew, 1 Coll. 690. v. Huzzey, 41 Me. 495; Harrison v. 7. Randall v. Russell, 3 Meriv. 194 ; Foster, 9 Ala. 955 ; Cain v. Robert- Evans V. Inglehart. 6 Gill & J. 171; son, 27 Ind. App. 198, 61 N. E. 61. Henderson v. Vaulx, 10 Yerg. (Tenn.) 200 CHAP. VII.] PEESOXAL PKOPEKTY lis' EXPECTANCY. § 1^0 testator's wishes, if reasonable, as gathered from the whole instru- ment which disposes of perishable property ; and, as Lord Eldon laid down the rule, where personal property is not specifically given, and consists of an interest wearing out, or one salable at present, yet in point of enjoyment future, the whole should be converted into money as between tenant for life and remainder- man.^ Wherever, then, a will contains no expression of intention that the perishable property bequeathed shall be enjoyed in specie; where, for instance, household furniture, liquors, garments, plate, and the like, are given for life, along with money in the funds, and other securities ; the court is justified in treating the perish- able property at its cash valuation, and in directing it to be turned into money and invested, the income only to be paid regularly to the party or parties for life in succession, while the principal is reserved for the remainderman.^ This exception in regard to thing's quce ipso usu consumuntur may therefore at the present day be considered as founded, not so much upon the testator's incapacity to limit over the beneficial enjoyment of such property, as upon his implied intention that the party first in interest should be permitted to consume them.^ The doctrine of things perishable in the use does not apply to a gift of farming stock.^ And it has been held that where a man's wearing apparel is given with other things to the wife for life, with remainder over, she has not the absolute interest in them ; though it was argued in this case that she might have consumed the garments by putting them upon her children or servants.^ 8. See Fearns v. Young, Q" Ves. 552; 7 E. L. & Eq. 216; 2 Kent Com. 353; Howe V. Earl of Dartmouth, 7 Ves. Patterson v. Devlin, Mcilull. 459; 137. Eandall v. 'Russpll, 3 Meriv. 194; 9. Perry Tru-sts, § 547, and cases Smith v. Barham, 2 Dev. Eq. 420; cited; Homer v. Shelton, 2 Met. 194; Jones v. Simmons, 7 Ire. Eq. 178. Minot V. Thompson, 106 Mass. 587; 2. Groves v. Wright, 2 Kaj' & J. Clark V. Clark, 8 Paige, 152 ; Eichel- 350. And as to shipping, see Healey berger v. Barnitz, 17 S. & R. 293; v. Tappan. 4;- N. H. 243. L. R. 13 Eq. 267; Hemenway v. Hem- 3. In re Hall's Will, 1 Jur. N. s. enway, 134 Mass. 487. 974. See Cockayne v. Harrison, L. K. 1. Morgan v. Morgan, 14 Beav. 72; 13 Eq. 432. A gift of articles for 201 § 141 THE LAW OF PERSONAL, PROPERTY. [pART II. The rule of the civil law with regard to perishable property was somewhat different. Under that system of jurisprudence, the usufruct of things consumed carried along with it the porperty; and it was all the same whether one had the use or the usufruct of such things as grain and liquors given him. Yet the usufruc- tuary was distinguished from the proprietor, in being compelled, after the usufruct had expired, to restore, according as his title obliged him, either an equal quantity of the same kind with that which he had received, or the value of the things at the time he received them."* § 141. Use by the Party in Immediate Interest. Where articles are limited over in specie, by way of remainder, the party holding the particular estate or interest must not waste the goods any more than a life tenant of lands, since the enjoy- ment of property, whether real or personal, is, in either case, by way of usufruct only. Specific chattels, it may be said, are to be enjoyed and used, each according to its nature, and beneficially. Allowance for ordinary wear and damage should be made in favor of the party who has the particular interest ; and the articles in specie shall be given up at the end of his term in the condition in which they may then happen to be, although wasted and diminished by the use, provided they have not been misused.^ Where such property is sold, however, and the proceeds are invesetd in interest-bearing securities of an incorporeal character, the element of consumption by use becomes practically eliminated from the computation; and to sell consumable articles and so invest the proceeds is the usual practice whenever a will permits of the construction, rather than to give them over in specie to the life-tenant.^ Where " net proceeds " of a fund after paying life that can only be used by wearing 5. Action may be maintained for out or otlierwiSe consuming them im- damage to a necklace by the re^" plies an absolute estate. Harrison v. mainderman against the estate of the Foster, 9 Ala. 955; German v. Ger- life tenant. In re Swan, 10 Wkly. man, 27 Pa. St. 116, 67 Am. Dec. 451. Notes, 113 (Ch. Div.). 4. 1 Dom. Civ. Law, §§ 989, 990. 6. See 2 Kent Com. 354; Perry 202 CHAP. VII.] PERSONAL PROPERTY IN EXPECTANCY. § 143 charges and expenses are to go to the life beneficiary, all ordinary wear and tear should be borne by the income ; but probably for large and unusual expenses a different rule would apply.^ § 142. Rule Applied to Animals. If domestic animals are bequeathed for life with remainder over, the tenant for life, taking the increase to himself, is bound to keep up the number of the original stock. But if the usufruct happens to be of such animals as cannot produce young ones, as a set of horses or mules, or of any one beast alone, the person having the life-interest will not be bound to fill up the place of one which dies through no fault on his part.^ The life beneficiary of animals takes presumably all increase of live stock to himself.^ § 143. Rule Applied to Stock and Bonds; Dividends, Interest Coupons, etc. Where personal property invested in stocks is limited over by way of remainder, the income being payable to an intermediate party having the particular estate,^ the question sometimes arises as to the disposition of extraordinary profits which have been declared on the stocks by way of dividend. The rule of the English chancery courts appears to be to consider such bonuses, or extra dividends, whether consisting of additional shares, or payable in cash, as an accretion of capital ; and investment is decreed accordingly; the effect of which rule may be that the tenant or beneficiary for life takes less and the remainderman more, than his fair proportion.^ And such extraordinary accu- mulations have been set apart for the remainderman, even where Trusts, § 552. Personal chattels may 8. 2 Kent Com. 353, n. ; 1 Dom\ be used by the tenant in life, if he is Civ. Law, §§ 986-988 ; Horry v. entitled to possession, in any place;' Glover, 2 Hill Ch. 521. or he may let them out to hire. Mar- 9. See Perry Trusts, § 546. shall V. Blew, 2 Atk. 217. But he 1. Perry Trusts, § 543. cannot pawn or sell them beyond the 2. Brandor v. Brander, 4 Ves. 800; extent of his own interest. Hoare vT Paris v. Paris, 10 Ves. 185; Gilley v. Parker, 2 T. P. 376. Burley, 22 Boav. 624; Wms. Per8. 7. See Jones, Re, 103 N. Y. 621. Prop. 5th Eng. ed. 240. 203 § 143 THE LAW OF PERSONAL PROPERTY. [pART II. thej manifestly arose from profits made during the term of the beneficiary for life.^ Bnt where it appears affirmatively that the extra dividend arises from increased profits of the current year, it is held to belong to the beneficiary for life.'* The English rule in this respect seems to have originated in reasons of convenience rather than of fairness ; Lord Loughbor- ough, in the first instance of the kind, objecting to hunting back and seeing to what part of the saving each was entitled ; ^ and Lord Eldon afterwards acceding with reluctance to a practice which could not well be supported, as he thought, on principle.^ And to judge from the latest English decisions on this point, the line in favor of the remainderman appears to be drawn at bonus dividends which are appropriated by a company as an actual increase of the capital stock/ But in this country the attempt is sometimes made to apportion surplus accumulated and stock divi- dends in such cases. Thus, the rule in Pennsylvania is distinctly declared to be, that, on the one hand, a surplus fund accumulated in stock over and above the current dividends at the time of the testator's death is part of the stock itself and goes as principal; and that, on the other hand, all accumulations after the testator's death are as much a part of the income as the current dividends, and as such belong to the legatee of the income or profits for life, who has the right to take them, notwithstanding that the accumu- lations were withheld from distribution for a time after the tes- tator's death.^ This is manifestly the just rule, though by no 3. Brauder v. Brander, 4 Ves. 800. the purchase of new steamers, were 4. Barclay v. Wainwright, 14 Ves. held to be capital and not income, as 66; Preston v. Melville, 16 Sim. 163. between a beneficiary for life and re- 5. See Brander v. Brander, 4 Ves. maindermen. Barton's Trusts, L. R. 800. 5 Eq. 238. 6. See Paris v. Paris, 10 Ves. 185. 7. See Bouch v. Sproule, 12 App. A later case before Vice-Chancel- 385. Cf. (189'4) 3 Ch. 578. lor Wood supports the same doctrine; 8. Earp's Appeal, 28 Penn. St. 368. and new .shares issued by a steam And see Van Doren v. Olden, 4 C. E. navigation company to represent sur- Green (N". J.), 176: Lord v. Brooks, plus profits for the preceding half- 52 N". H. 77; 64 Penn. St. 256; Vin- year, which had been laid out in ton's appeal, 99 Penn. St. 434. 204 CHAP. VII.] PERSONAL PKOPERTY IN EXPECTANCY. § 143a means easy of practical application. In other States again, as, for instance, Massachusetts, the English chancery rule is favored, from motives of convenience; and the tendency of these courts appears to be to treat stock dividends as prima facie capital, and cash dividends as prima facie income.^ But in the latest Massa- chusetts cases this rule seems to be so far modified as to regard any dividend made of the stock of the corporation which has been bought in by the corporation from its earnings as income and payable to the tenant for life if the dividend represents no actual increase of the capital stock. ^ § 143a. The Same Subject. Questions of this sort should be determined, however, according to the peculiar circumstances of the case presented, and such is the preferable modern tendency. There are circumstances under which the avails of stock bonuses, extra dividends, or dividends, would be treated as income and not capital, when the rights of life-tenant and remainderman are under consideration.^ And money dividends, under certain corresponding circumstances, are 9. Minot V. Paine, 99 Mass. 101* was created. Minot v. Paine, 99 Mass. Daland v. Williams, 101 Mass. 571. 101; Wilberding v. Miller, 90 Ohio Where corporation property consisted St. 28, 106 N. E. 665; Hite v. Hite, wholly of real estate, and part of it 93 Ky. 257, 20 S. W. 778; Earp's was taken by eminent domain, the Appeal, 28 Pa. St. 368; Re Osborne, compensation money, if distributed, 209 N. Y. 450, 103 N. E. 723; Bryan belongs to the capital and not the in- v. Aiken, (Del.), 86 Atl. 674, 82 come of a trust fund invested in the Atl. 817; In re Heaton's Estate, 89 shares. Heard v. Eldredge, 109 Mass. Vt. 550, 96 Atl. 21. A dividend paid 258. See also Gibbons v. Mahon, 136 out by notes of the company is in- U. S. 549. come and not principal, although it 1. Leland v. Hayden, 102 Mass. includes past accumulated dividends 542; Perry Tru-sts, § 545, notes. that might have been paid on the Under the Massacliusetts rule all stock stock when it is paid out of earnings, dividends go to the remainderman; Boston Safe Depo.sit Co. v. Adame, under the Kentucky rule they belong 210 Mass. 175, 106 N. E. 590. to the life tenant, and under the 2. E. g., Leland v. Hayden, 102 Pennsylvania rule they go to the life Mass. 542. As to adjustment of tenant only so far as they are de- U. S. legacy tax. in such cases, see rived from earnings since the trust Sohier v. Eldredge, 103 Mass. 345. 205 § 143a THE LAW OF PEKSONAL PROPERTY. LPART II. treated as capital and not income; as, for instance, where banks are wound up and their assets distributed by way of dividend among the stockholders.^ Profits received by trustees, under the sale at an advance of a subscription right to new stock, are, by the Pennsylvania rule, regarded as income and not capital.'* A dividend declared on shares before the testator's death, but not actually payable until after his death, has been regarded, under the English rule, as capital and not income.^ The intention of a testator is always an element for consideration, and, in compliance with his wishes, where wasting securities are specifically bequeathed by him, the life-tenant has been allowed to receive the dividends, even though, as in the case of a company whose dividends are derived from the sale of lands, every dividend must necessarily lessen the capital stock.^ Cases somewhat analogous to those of stock bonuses may arise in bond investments. In England the life beneficiary is so far favored above the party in remainder as to the entire actual income, that no part of the income is to be used for indemnifying the latter against the disadvantage of having stock purchased above par by the trustee which will eventually come to the 3. Perry Trusts, §§ 544, 545, and rule in favor of the remainderman cases cited. is so far changed that dividends in 4. Wiltbank's Appeal, 64 Penn. St. money which come from the earnings 256. But as to purchasing new shares of the capital invested belong to the under an option, where capital stock tenant in life. Perry Trusts, § 545; is increased, see Moss's Appeal, 83 Barclay v. Wainwright, 14 Ves. 66; Penn. St. 264. And see Vinton's Ap- 1 McClel. 527 ; Johnson v. Johnson, peal, 99 Penn. St. 434. 15 Jur. 714; Plumbe v. Neild, 6 Jur. 5. De Gendre v. Kent, L. R. 4 Eq. n. s. 529; Lord v. Brooks, 52 N. H. 283. 77; Read v. Head, 6 Allen, 174. Cash 6. See Read v. Head, 6 Allen, 174 ; dividends, extra dividends, or bonuses Hill Trustees, 3d Am. ed. 566. And declared from the earnings, are thus see Wilday v. Sandys, L. R. 7 Eq. held to be income and to belong to 455; 146 N. Y. 78. the tenant for life. Perry, § 544. The subject of stock dividends, And of course a dividend earned be- bonuses, extra dividends, &c., is con- fore the testator's death, but declared sidered at more length in Perry afterwards, goes to the tenant for Trusts, §§ 544, 545. According to life. Bates v. Mackinley, 31 Beav. the better modern opinion, the old 280. 206 CHAP. VII.] PERSONAL PROPERTY IN EXPECTANCY. § 144 remainderman at only par. Perhaps in the. difficulty of estimat- ing such speculative and prospective values lies the good sense of such a rule ; for by the rise of stock thus purchased, the value of the capital may be greatly enhanced at the life beneficiary's death.' In Massachusetts, however, the majority of the court has once attempted to apply to the trustee's purchase of bonds at a premium a rule more advantageous to the party in remainder.^ § 144. Income and Capital; Life-tenant and Remainderman. Every beneficiary for life of the residue of personal estate, under a will, is entitled to the income of all such part of the residue as has not been required for the payment of debts and administration, and is found to be in a proper state of investment ; and to the income of such property he is entitled from the death of the testator.^ Where legacies are bequeathed and the residue given to a tenant for life with remainder over, the court, in adjust- ing the accounts between tenant for life and remainderman, will consider the debts and legacies as paid, not out of capital only, nor out of income only, but with such portion of the capital as, together with a proportional part of the income of that portion, would appear sufficient for the purpose.^ And if legacies are 7. Perry Trusts, § 547. and gone through a process of insol- 8. See New England Trust Co. v. vent reorganization, to the utter dis- Eaton, 140 Mass. 532, 4 N. E. 69, comfiture of such attempts to adjust three judges dissenting! (indudinjg prospective income to capital. Morton, C. J.). Here the trustee was 9. Angerstein v. Martin, T. & R. directed by the court to retain from 232; Allhusen v. Whittell, L. R. 4 Eq. the life beneficiary's income enough to 295. See Parnham's Trusts, L. R. 13 make good to the capital the amount Eq. 413. For the rule as to giving of premiums paid in purchasing such the tenant for life the first year's in- " permanent " seaurities. This ap- come, in connection with the settle- pears to be not only an unfair rule, ment of an estate, see Perry Trusts, but one which makes vain effort to § 551, and cases cited; Angerstein v. take in the full scope of consequences. Martin, 2 Sim. 18 ; Williamson v. Financial experience has since shown Williamson, 6 Paige, 303. that many such railway and other in- 1. Allhusen v. VMiittell, L. R. 4 Eq. vestment bonds, apparently quite safe, 295. have defaulted on interest coupons 207 § 145 THE LAW OF PERSONAL PROPERTY. [PABT II. given to legatees contingent upon their reaching a certain age, the life-beneficiarj is entitled to the intermediate income of the fund set apart to meet the contingency.^ § 145. Rule of Apportionment Applied. There is a general rule of law which forbids the apportion- ment of periodical payments which become due at fixed inter- vals; and, under its strict operation, the remainderman might stand upon a more advantageous footing than is reasonable with respect to the beneficiary for life. But this rule, like that of surplus dividends, is founded in judicial convenience rather than justice; and modem policy discourages its application in many cases where the life-tenant would be injuriously affected thereby. When a debt is secured by bond or mortgage, the interest may be apportioned, because it is regarded as earned from day to day, even though the interest be expressly made payable half yearly.^ Large accumulations of profits extending over a number of years have been held in this country to be ap- portionable.'* Where the life-tenant of real estate dies, his rent is almost universally apportionable, under both English and American statutes.^ As to annuities, equity will sometimes pre- sume, from the necessities of the case, that apportionment was intended, and make its decree accordingly.^ And recent statutes are to be found, which extend this same reasonable doctrine of apportionment to persons entitled to the income for life of any property, whether real or personal, as against remainder-men.^ 2. lb. 7. See Stat. 4 & 5 Will. IV, c. 22, 3. Edwards v. Countess of War- § 2; Wms. Pers. Prop., ITth Eng. ed. wick, 2 P. Wms. 176; Sherrard v. 399. Why such legislation is not Sherrard, 3 Atk. 502. common in the United States is doubt- 4. Earp's Appeal, 28 Penn. St. 368. less because there is less occasion to 5. 3 Kent Com. 471 and n. ; Stat. 11 apply for it; the policy is manifestly Geo. II, c. 19, § 15; Perry Trusts, just. See Mass. Pub. Stats., c. 136. § 556. § 25; Sohier v. Eldredge, 103 Mass. 6. Hay v. Palmer, 2 P. Wms. 501; 345. Howell V. Hanforth, 2 Bl. 843; 3 Kent. Com. 471. 208 CHAP. VII. J PERSOXAi PROPEETY I^• EXPECTANCY. § 146 Yet we must remember that, at the common law, neither rents nor annuities could be apportioned. And, independently of local legislation, there is no apportionment of dividends; so that if stock be settled in trust for one person during life, with remainder to another, the remainder-man is entitled to the whole of the dividend which falls due next after the decease of the person en- titled for life.^ The remainder-man is entitled to the fund upon the death of the o^vner of the life estate ; income or interest as from such date is due him, and no deduction should be made from the fund for administering on the life-beneficiary's estate.^ § 146. Rule against Perpetuities. The rule against perpetuities is applicable to limitations of personal as well as of real property.^ In order to prevent the fancies and conceits of dying men from embarrassing their suc- cessors, the courts long ago decided that the vesting of a devise should not be postponed beyond a certain reasonable period ; and the same holds good of a bequest. That period, as finally fixed upon, is the period- of a life or lives in being at the death of the testator, and the term of twenty-one years more; to which is added the period of gestation in case of a devisee en ventre sa mere? Hence, an executory devise or bequest, limited to take effect after the indefinite failure of issue of a person living or deceased, creates a perpetuity, and is void for remoteness.'' And 8. Pearly v. Smith, 3 Atk. 260; 2. 1 Jarm. Wills, 226, 227: 2 Redf. Sherrard v. Sherrard, 3 Atk. 502; Wills, 1st ed. 845, 846; Cadell v. Quinn v. Madigan, 65 N. H. 8, 17 Atl. Palmer, 1 CI. & Fin. 372. As to the 976. See Paton v. Sheppard, 10 Sim. New York rule see In re Wilcox, 11T4 186; Granger v. Bassett, 98 Mass. N. Y. 288. 87 N. E. 497. 462; Perry Trusts, § 556. 3. lb.; Wms. Pers. Prop., 5th Eng. 9. Reiff's Appeal, 16 Atl. 636, 124 ed. 245; Bengough v. Edridge, 7 Sim. Penn. St. 145. 173; Cadell v. Palmer, 7 Bligh, 202. 1. Instances of wrongful suspension Of two possible constructions of a of perpetuities. Book 26, N. Y. Rpts.. will, that seems to be preferred which Bender ed., note, p. 118. Illegal ac- would avoid violating the rule against cumulation of perpetuities. Book 36, perpetuities. Rand v. Butler, 48 N. Y. Rpts., Bender ed., note, p. 728. Conn. 293. U 209 § 14G THE LAW OF PERSONAL PROPERTY. [PABT II. where one sets apart by his will a certain sum of money, directing that the interest be applied in keeping up repairs on a family tomb, this is likewise void,'* But charitable trusts are an excep- tion to the rule against perpetuities; for it is of the essence of charity to be never failing.^ Hence, some difficulty might be ex- perienced in a case where a bequest of personal property verged very closely upon the nature of a charitable trust, — as if one made a gift of income for repairing the tombs of his distant kindred. Sometimes, too, a bequest which is too remote of itself is accompanied by a charitable bequest; and here the English decisions appear to have established the proposition that where a sum of money is given, part of which is to be applied to a purpose too remote, and the rest for charitable purposes, the whole gift must fail.^ But still there is considerable conflict in the English cases as to how far a gift to persons within the allowed limits fails in general by being mixed up with others which come within the prohibition against perpetuities.'' And the New York rule is a reasonable one, that if some gifts are valid per se, and others void, the court will sustain the former if they can be separated from the latter.^ As a testator cannot postpone the vesting of an executory devise or bequest for a longer term than twenty-one years, besides the 4. Rickard v. Hobson, 31 Beav. 244. Sel. 525; White v. White, 7 Ves. 423; See Hunter v. Bullock, L. R. 14 Eq. Odell v. Odell, 10 Allen, 1; 2 Schoul. 45. Wills, Exrs. and Admrs., § 1465. 5. Wells V. Heath, 10 Gray (Mass.) 6. Fowler v. Fowler, 10 Jur. n. S. 17. See Joeelyn V. Nott, 44 Conn. 55. 648; Chapman v. Brown, 6 Ves. 404; The court will not interfere with the Cramp v. Playfoot, 4 Kay & J. 479. limitation of a trust fund unless is is 7. Arnold v. Congreve, 1 Russ. & unreasonable. Oldfield v. Attorney- My. 209 : Lord Dungannon v. Smith, General, 219 Mass. 37&, 106 K E. 12 CI. & Fin. 546: Webster v. Bod- 1015. The fact that a gift in re- dington, 26 Beav. 128; Wilson v. Wil- mainder to a State cannot take effect son, 4 Jur. x. s. 1076. and other cases till the State by proper legislation cited in 2 Redf. Wills, 849, 23 Hun, accepts it, does not make it void as a 223; 2 Schoul. Wills, Ex'rs and perpetuity. Bell v. Nesmith, 217 Adm'rs, § 1465. Mass. 254, 104 N. E. 721. See 2 Redf. 8. Van Vechten v. Van Veghten, 8 Wills, 821; Williams v. Williams, 4 Paige, 105. 210 CHAP. VII.] PERSONAL PROPERTY IN EXPECTANCY. § 146 lives in being already mentioned, so he cannot extend that term even where he does not avail himself of the privilege of lives in being. Where, for instance, the testator directed a postponement of the vesting for twenty-eight years after his death, the limitation was held void ; and there being other limitations dependent upon this, they fell through in consequence.^ But this rule does not prevent one from postponing the vesting for thirty, or any number of years, provided the property be ultimately to vest in persons who are living both at the time of the testator's death and at the time of the vesting, since that renders it impossible for the terra to extend beyond the period of an existing life.^ The question of remoteness, it must, however, be borne in mind, is to be de- termined by reference to possible events, and not to those which actually occur; and a limitation to such persons or upon such events that it may lead to a perpetuity under the rule is void, whatever might be found to be the facts if one waited long enough to ascertain them.^ And, of course, the reckoning of all such limitations is from the date of the testator's death, and not from the date of his will.^ The rule against perpetuities is most frequently violated by a devise or bequest to classes, individuals of which may not come into existance during the prescribed period; or to persons whose interest is deferred beyond the period of reaching the age of twenty-one one years; the question being here, as always, not whether the estate actually vests within the time, but whether it may not.** This whole doctrine of perpetuities is of more interest to English than American students. But it may be laid down that 9. Palmer v. Holford, 4 Riiss. 403; 3. 2 Redf. Wills, 850; 2 Jarm. Speaknian v. Speakman, 8 Hare, 180. Wills (ed. 1861), 257 and note; 1. Lochlan v. Reynolds, 9 Hare, Tregonwell v. Sydenham, 3 Dow. 1D4, 796; 1 Jarm. Wills (ed. 1861), 230; 215. 2 Redf. Wills, 1st ed. 846 4. 1 Jarm. Wills (ed. 1861). 233; 2. Passim, Church, &c. v. Grant, 3 2 Redf. Wills, 1st ed. 847; Boura. § 173, n.; § 173 a. Pars. Partn. 71 et seq., and notes. 4. Rico v. Austin. 17 Mass. 197; 2. Wilson V. Wliithead, 10 M. & W. Purs. Partn. 76, pa-ssim. 503. 5. Wilson v. Edmonds. 130 U. S. 3. Brightly Fod. Dig. Suppl. 139; 472; Moohan v. Valentine, 145 U. S. Vanderburgh v. Hull, 20 Wend. 70; 611. Cf. Weasels v. Weiss, 166 Penn. 3 Kent Com. 33, 34, and notes; Pars. St. 4TO. 265 § 178 THE LAW OF PERSONAL PROPERTY. [PART II. or transaction are not treated as partners, though interested in the net profits.^ Sometimes the principle is asserted that thej only are partners who are jointly interested in the profits as profits, and not by way of pa;)Tnent for labor or work performed. Mr. Justice Story deduces as a principle from all the authorities that a participation in profits raises a presumption of partnership, which, however, is not conclusive, but may be overcome by other circumstances.^ The rule of Waugh v. Carver, which is also approved by Chancellor Kent, is that an indefinite participation in profits makes one a partner as to third persons, because by such participation the fund on which the creditors rely is diminished.^ Again, it has been asserted by eminent jurists, that one is liable as partner to third parties when his interest in the profits is such as gives him the right to an account ; but this test is clearly unsatisfactory, and a mere begging of the question.^ Again, the distinction is sometimes made between sharers in gross receipts and sharers in net profits ; but this, as a conclusive test, seems inexact.^ A late writer of eminence comes, perhaps, most nearly to the mark, when he draws a distinction between accruing or unascer- tained profits, and profits which have been ascertained and di- vided ; and he lays it down that persons not held out to the pub- lic as partners incur the partnership liability, both as to third persons and inter se, only when they have some ownership in or of the profits as they accrue and are not ascertained or divided into portions. This community in unascertained and undivided profits he deems to be the true test of a partnership.^ But in 6. Parker v. Fergus, 43 111. 438 Waugh V. Carver, 2 H. Bl. 235 Hesketh v. Blanchard, 4 East, 144 Loomis V. Marshall, 12 Conn. 69 9. 3 Kent Com. 25, note; ex parte Hamper, 17 Ves. 412; Champion v. Bostvvick, 18 Wend. 184; Pars. Part. 92; Bisset Partn. 14. Denny v. Cabot, 6 Met. 82 ; Berthold 1. See Pars. Partn., § 50, and notes ; V. Goldsmith, 24 How. 536. And see Dry v. Boswell, 1 Campb. 329; Par- Cox V. Hickman, cited § 173, notes. ker. v. Canfield, 37 Conn. 250. 7. Story Partn., § 38 et seq. 2. Pars. Partn., § 50; Dry v. Bos- 8. Waugh V. Carver, 2 H. Bl. 235; well, 1 Campb. 329; Turner v. Bissell, 3 Kent Com. 27, and cases cited. 266 CHAP. LX] PARTNERS. § 179 practice this test likewise will be found a difficult one to apply. On the whole, it must be admitted that there is a great mass of decisions which are irreconcilable on any one of these principles. Even participation in the profits may not be decisive proof of a partnership where other facts contradict this assumption.'' And as to a secret or dormant partner, secrecy on his part and want of knowledge on the part of the creditor have been deemed essen- tial elements of the liability.'* The intention of the partnership is to be considered in all cases; though we should admit that if parties secretly make an agreement whose plain effect is to bring them into the partnership relation, they will be deemed partners as to third persons, and generally as to external liabilities, even though such were not their intention in making the agreement.^ And, on the other hand, while participation in accruing profits is a most convenient test of the partnership relation, it establishes no such liability where the legal effect of the arrangement entered into was not to create a partnership. § 179. Ostensible Partnership; Nominal Partner's Liability. But partnership liability is, as we have said, also incurred in cases of ostensible partnership, whether actual or not. Here we come from the secret or dormant partner to his counterpart, the nominal partner. The general principle is, that if one holds him- self out to the world as partner in a firm, he is liable as such, though he have no interest in it. But this principle is qualified by another; namely, that a creditor who had no reason to believe that the person so held out was a partner cannot recover. "^ The decisions are somewhat conflicting as to a nominal partner's lia- 14 Pick. 192; Ambler v. Bradley, 6 notes at leiiowndes, 4 S. C. 258. Partn., § 176. 4. Chamian v. Honshaw, 15 Cray, 2. See 3 Kent Com. 31. and notes; 293. Vice versa, if the name of the 8 Abb. N. C. 76; 70 Cal. 194. This firm be merely that of an individual New York penal statute is laxly in- partner, it is not presumed that, where terpreted by the courts. 97 N. Y. the individual signed his name to a 472, 476; 83 N. Y. 74. See further, hill, he did so on behalf of the firm. as to "Co." Zemon v. Trim. 181 Yorkshire Banking Co. v. Boatson. 4 Mich. 530, 147 N. W. 540; Drohan C. P. D. 204: United States Bank v. V. Norton, 67 Misc. 159, 121 N. Y. S. Binney, 5 Mason, 176; Oliphant v. 59g. Mathews, 16 Barb. 608. 3. See 3 Kent Com. 31, 32: Wil- 2no § 181 THE LAW OF PEESONAL PROPERTY. [PART II. of a corporation,^ since there may be a trade-mark value in a partnership style long used successfully. § 180. The Same Subject. The question of a nominal partner's liability may be usually referred to his acts and conduct. As was observed in Fox v. Clifton, the holding one's self out to the world as a partner, as contradistinguished from the actual relation of partnership, im- ports at least the voluntary act of the party.^ It is the lending of one's name to the concern, not the improper use of that name by others, which the court usually regards. Declarations of the actual partners carry no great weight of themselves when unsup- ported by circumstances evincing the nominal partner's concur- rence; but if the latter knows that his name is used on the sign- board, in the advertisements and business circulars of the firm, or otherwise, he may become liable to customers, unless he season- ably repudiates and disavows all connection with the firm.'' The knowledge that his name is so used, and his consent thereto, is the ground upon which he is estopped from disputing his liability as a partner.^ § 181. Modern Legislation Affecting Partnership Liability to the Public. The general uncertainty which thus prevails concerning part- nership liability in its legal sense has led, in England, to the pas- 5. Holbrook v. Ins. Co., 25 Minn. For example, where a father and 229; Pars. Partn., § 97. son did business together under the 6. 6 Bing. 776. See Bourne v. firm name of D. & Son. and the Freeth, 9 B. & C. 632 ; Pars. Partn., plaintiff, who had been a customer be- §§ 84-97; Story Partn., §§ 64, 80. ^^^^ y^^ withdrawal of the father, 7. Dolman v. Prichard, 2 C. & P. ^^^^ j^^^ ^^^ ^^^^^ ^^^^^ ^^^ ^^.^^^_ drawal and was injured, the father is liable where the plaintiff did not 104; Gill V. Kuhn, 6 S. & R. 338; Tuttle V. Cooper, 5 Pick 414 8. So a retiring ostensible partner is liable to creditors who have no no- ^^""^ "^ '"^ withdrawal. Jewison v. tice of his retirement. Stewart v. Dieudonne, 127 Minn. 163, 149 N. W. Sonneborn, 51 Ala. 126; Shamburg v. 20. Ruggles, 83 Pa. 148. 270 CHAP. IX] PART^^ERS. § 1S2 sage of an explanatory act,^ which is substantially to this effect : that neither the advance of money on contract to receive a share of profits, nor the remnneration of servants and agents by a share of profits, nor the receipt of profits by certain annuitants (such as the widow and child of deceased partners), nor the acceptance, of profits in consideration of the sale of good-will, shall constitute the party so benefited a partner. But English courts of high authority have since observed that the common law is to the same effect, and that nothing has been really gained by this legislation.' § 182. Liability of Partners to Third Parties Affected by Notice of Stipulations, Etc. But the liability of partners to third parties may sometimes ba affected by stipulations between themselves of which such third persons had knowledge. And while private or secret stipulations cannot control the liability of members composing a firm as con- cerns those without proper notice who dealt with them, there are, nevertheless, cases which tend to make reasonable stipulations between partners qualifying their partnership liability, operative and obligatory upon third parties to whom those stipulations were made known.^ This doctrine is quite analogous to that of credit given to one partner only; namely, that if a creditor sells goods or loans money on the sole credit of one of the partners, or othenviso deals with him as an individual, and not as a member of the firm, the other partners are exonerated from liability; though the presumption would be that business within the usual scope of a partnership is transacted with a partner as such, and not in his private capacity, and vice vcrsaJ Further, as we shall 9. 28 & 29 Vict., c. 86, July 5, 1865; Parker v. Canfield, 37 Conn. 250 Smith's Man. Com. Law, 197. This Knox v. BufTinrrton, 50 Iowa. 320 is known as " Bovill's Act." Kinibro v. Bullitt. 22 How. 256 1. See per curiam, MoUwo, March Crouirhton v. Forrest. 17 Mo. 131; 5 & Co. V. Court of Wards, L. R. 4 Pet. .^)29 ; 3 Kent Com. 44. 45. Effect P. 0. 419; Pooley v. Driver, 5 Ch. D. of assifniment by one partner to an- 458. Cf. the local code of a State other. Book 23, N. Y. Rpts.. Benerty witli which they ing in business prejudicial to the firm. were to do business was obtained. Marshall v. Johnson, 33 Ga. 500. See Snodgrass v. Reynolds. 79 Ala. 452; also Hayes v. Fish. 36 Ohio St. 498. Meagher v. Reed. 14 Cnl. 335, 24 Pac. A mere executorj^ agreement does not 681, 9 L. R. A. 455. But where joint establish a partnership. Beekford v. action is to begin at once, tlie parl- 18 273 § 185 THE LAW OF PERSONAL PROPERTY. [PART II. What most immediatelj concerns us, in the present connection, is the consideration of their rights in the partnership property. By partnership property is meant whatever belongs to a partnership, whether personal or real ; thelatterkindof property being, however, treated in a measure as personal under the operation of peculiar rules. The personal property of a partnership chiefly consists in what is known as the goods and merchandise or stock in trade ; and this, where the business is that of selling and buying, must be often of great as well as especial value; the horses and car- riages or motor cars of a firm; furniture, books, safes, and all other chattels bought by the partnership with partnership funds and for partnership purposes; outstanding accounts, debts, and claims, whether with or without security, and whether evidenced by writing or not; cash in hand and balances at the bank; also shares in companies or scrip bought or turned into the partner- ship, and not belonging to the individual partners or placed to their separate accounts.^ All such partnership property is owned not by the individual partners but by the firm; and the title should stand or be transferred accordingly.^ The " good-will " of a prosperous partnership is a valuable interest ; but it seems to be recognized as of pecuniary importance only when referred to the place where the partnership business has been carried on ; for, as Lord Eldon says, " the good-will of a trade is nothing more than the probability that the old customers will resort to the old place." ^ Good-will is the benefit which nership begins at once. Kerriek v. St. 530 ; 82 Cal. 474; 11 Wall. 624. Stevens, 55 Mich. 167, 20 N". W. 888; See § 189. Rights in property pur- Beauregard v. Case, 91 U. S. 134; chased in firm name. Book 13, N. Y. Latta V. Kilbourn, 150 U. S. 524, 4 Rpts., Bender ed., note, p. 735. S. Ct. 201. 2. Cruttwell v. Lye, 17 Ves. 335, 9. See Pars. Partn., §§ 177-183; 346; Pars. Partn., § 181; Story Story Partn., § 98. Partn., §§ 99, 211 ; Shackle v. Baker, 1. Pars. Partn., § 178. But while 14 Ves. 468. See Warfield v. Booth, a partner has no interest in specific 32 Md. 63. But the firm's business property of the firm, but only an un- may be moved from one place to an- divided and distributive interest, he other or be carried on in more than may sell, mortgage, or pledge this in- one place, terest. lb., and cases cited ; 107 Penn. 274 CHAP, ix] PARTNERS. § 185 results from good reputation and connections where the business has been built up. Courts are sometimes disposed to disregard the claim of a deceased partner's personal representatives in the good-will of a business as against surviving partners; but where the interest is really valuable, as it often must be, the better opin- ion is that equity will order it sold with the other effects for the common benefit.'' The good-will of professional partner.ships is rarely important in such a sense, since those dealing with lawyers, physicians, and artists, regard personal qualifications as of far greater consequence than the place where they do business.'' Good-will is firm property, and a sale of all interest in a business or its assets transfers it as an incident.^ The rights of partners to the partnership property are much like those of joint owners: that is, they are jointly interested therein ; but they have not inter se that right of survivorship which is the peculiar characteristic of joint tenancy.^ In the absence of evidence to the contrary, partners are deemed to be equally interested in the partnership stock and effects and the profits ; yet the members may agree to own in any proportions; skill may be contributed by one, and capital in money by another; and partnership combinations are constantly formed among persons whose interests are manifestly made unequal.^ So long, indeed, 3. lb. ; Dougherty v. Van Nostrand, cumstanccs " good-will " is not a 1 HoflF. Ch. 68 ; 3 Kent Com. 64 ; partnor.ship asset susceptible of valu- Crawshay v. Collins, 15 VeS. 224. See ation. Steuart v. Gladstone, 10 Cb. Sheldon v. Houghton, 5 Bl. C. C. 285. D. 626. See also 45 L. T. 303; I^g- 4. Hoyt V. Holley, 39 Conn. 326; gott v. Barrett, 15 Ch. D. 306. Farr v. Pearce, 3 Madd. 78. The 5. Hoxie v. Chaney, 143 Mas.<^. 592 ; trade name or trade mark appears Merry v. Hooper. Ill N. Y. 415, 19 often a valuable interest in connec- N. E. 714; Crues.-? v. Fessler. 3? Cal. tion with the "good-will," and on va- 336; Wallingford v. Burr. 17 Xeb. rious considerations it cannot be used 137, 22 N. W. 350. S*^' 4 Chamber- by one carrying on the business, re- layne Evid., § 2140. gardless of the interests of a retiring 6. Story Partn.. §§ 88-91 ; Pars, or deceased partner. McGowan v. Partn. 168. 258. 259; Lindley Partn. McGowan, 22 Ohio St. 370; Hook- 573; 3 Kent Com. 36, 37; Aultman ham V. Pottage, L. R. 8 Ch. 91 ; Pars v. Fuller, 53 Iowa. 60. And see pre- Partn., § 182. See T^vy v. Walker, ceding chapter. 10 Ch. D. 436. Under certain cir- 7. Pars. Partn. 168, 258, 259. See 275 § 186 THE LAW OF PERSONAL PROPERTY. [PART II. as the community in profit or loss exists as to the enterprise, it is held that each partner may retain by special agreement the exclusive ownership of the things contributed by him to the part- nership use,^ and one may be partner without being partner or part-owner in the property with which the enterprise is carried on.^ And in equity a partner may even be found indebted to the concera, since partners may buy or borrow from the firm, and the firm from each partner.^ Where a partnership is dissolved by the death of some member of the firm, the case is peculiar; for here the representatives of the deceased partner become tenants in common with the sur- vivor; while in the collection of outstanding debts and the gen- eral winding up of the partnership business, survivorship so far exists at law that the surviving partners have exclusive possession and management; not, however, for their own exclusive benefit, but as trustees for all concerned, for themselves, for the creditors of the firm, and for the representatives of their late fellow- partner.^ § 186. The Same Subject; Rights in Real Estate. It was formerly deemed that partners could not, as such, own real estate, nor indeed transact business in lands at all. But the law in this respect has changed with the wants of trade, I^ot only does a partnership find real estate suitable for the purposes of investment, but lands and buildings are frequently desired for Story Partn., § 24, n. ; Thompson v. 2. 3 Kent Com. 37, and cases cited; Williamson, 7 Bligh, n. s. 432; Farr Pars. Partn. 440-442; Story Partn., V. Johnson, 25 111. 522; Stewart v. § 177; post, § 192, as to dissolution. Forbes, 1 Macn. & G. 137, 146. Where a firm transfers all its assets 8. Champion v. Bostwick, 18 Wend. to a corporation, and each partner 183; McCrary v. Slaughter, 58 Ala. receives corporate stock in proportion 230. Cf. Stumph v. Bauer, 76 Ind to his share in the concern, the stock 157. is the individual property of each 9. Hankey v. Becht, 25 Minn. 212; partner; for a new relation is cre- 22 Pick. 151. ated. Singer v. Carpenter, 125 111. 1. Story Partn., § 91;Pars. Partn. 117. 258, 259. 276 CHAP, is] PARTNERS. § 187 stores, warehouses and factories, in immediate connection with the partnership pursuits; and, besides, real estate mortgaijed to .secure debts to the firm, or attached, may come into the hands of the partners as such, bj foreclosure or sale on execution. The English and American rule, as now established, is that real estate purchased with partnership funds and held as partnership pmp- crty is to be so viewed in equity; it is subjected to all the part- nership incidents, and treated as personalty so far as the partner- ship necessities make this proper.^ And as to whether real or personal property was so purchased, actual intention must prevail in equity over external appearances."* § 187. Right of Partner to Bind the Firm as to the Public. As to the acts by which one partner may bind the firm, Chan- cellor Kent finds that the books abound with numerous and subtle 3. See Bright. Fed. Dig. G02 ; 3 Kent Com. 38-40, and n. ; Story Partn., § 9'3 ; Ashton v. Robinson, L. R, 20 Eq. 25; Wilcox v. Wilcox, 13 Allen, 252; Bowker v. Smith, 48 X. H. Ill; Pars. Partn., §§ 263-278, and cases cited; Fairchild v. Fair- child, 64 N, Y. 471; Sherwood v. St. Paul, &c., 21 Minn. 127; Bowling v. Exchange Bank, 145 U. S. 512. This topic does not properly fall within the limits of this treatise; but we may add that Wilcox v. Wilcox, supra, lim- its the extent to whicli partnership real estate ought to be considered as personal property. Prof. Parsons, cit- ing various equity authorities, con- cludes that the English rule goes be- yond the American in giving to real estate, purchased with partnership funds, the essential incidents of per- sonal property. Pars. Partn., § 270. and cases cited; Essex v. Essex, 20 Beav. 442. But where tenants in com- mon, who owned land, treated it throughout as real estate in carrying 277 on a quarrying business, the land is held to remain realty. Steward v. Blakeway, L. R. 4 Ch. 603. Cf. Mur- tagh V. Costello, 7 L. R. Ir. 428. Rights of surviving partner in n-al estate. Book 28, N. Y. Rpts., Bender ed., note, p. 269. Though the legal title to partner- ship real estate stands in the name of one, equity will treat the property as partnership personalty .so far as may be just. Shanks v. Klein, 104 U. S. 18; Causler v. Wharton. 62 Ala. 358. If a partner has the firm land in his own name, equity gives the firm the benefit. A partnership, as such, can- not, however, in the firm name, take the legal title to real estate. Tidd v. Rines, 26 Minn. 201. See further. Pars. Partn.. § 265. and latest cita- tions. Books V. Williams, 120 Md. 436, 87 Atl. 692. 4. See Partridge v. Weils, 30 N. J. Eq. 176; Johnson v. Hogan. 158 Mich. 635. 123 N. W. 891. § 187 THE LAW OF PERSONAL i'KOI'ERTY, [PART II. distinctions.^ It is the extent of one partner's legal authority to make all liable to the public which produces so much mischief; for so close is the partnership combination, that one rogue may in this respect ruin many innocent associates. In general, the act of each partner, in transactions relating to the partnership, is considered the act of all, and binds all. If one makes an admis- sion, acknowledgment, or representation, with respect to the firm business, his partners are generally bound by it. And where notice is given by or to one partner respecting the partnership business, it is equivalent to notice given by or to all. This vast power is not confined to buying or selling, but extends as con- cerns the public, to all acts and contracts which may fairly be considered within the scope of the partnership business.^ And as each partner may contract to this extent, so, too, he has, as to the public, the absolute jus disponendi, or right to dispose of any and all of the partnership effects ; and he may sell, assign, or transfer any or all of the personal property belonging to the concern (the transfer of its real estate being otherwise restricted by law) in the way of regular business, though in fraud of his partners, so long as knowledge of the fraud is not brought home to the purchaser.'' If such full transfer be hona fide on his part, the equities of his co-partners are extinguished correspondingly.^ But all such transactions, in order to be binding, should be done in the regular and ostensible course of business of the firm; and third parties are not absolved from the necessity of prudent in- quiry and caution when dealing with an individual who professes to act on behalf of the partnership, especially where the transac- tion is such as ought of itself to excite suspicion,^ 5. 3 Kent Com. 41. Locke v. Lewis, 124 Mass. 1. But as 6. lb. 40-46, and cases cited; Story to such transfers outside the scope of Partn., §§ 107, 108 ; Pars. Partn., §§ busines.?, see § 188, -post. 114-130. 8. Huiskamp v. Wagon Co., 121 7. Bright. Fed. Dig. Partnership, U. S. 310. IV.; Lambert's Case, 1 Godb. 244; 9. Wells v. March, 30 N. Y. 344; Marshall, C. J., in Anderson v. Tomp- Rogers v. Batchelor, 12 Pet. 221 ; kins, 1 Brock. 460; Story Partn., § 94; Cadwallader v. Kroesen, 22 Md. 200. Pars. Partn., § 108; 3 Kent Com. 41; See further, § 189, post. 27S CHAP, ix] PARTNERS. § 188 § 188. The Same Subject; Instances Considered. Thus, there are numerous instances in which it is held that a partner may bind the firm by borrowing money,' even though he should misapply after receiving it ; and by lending money.^ One partner may bind the firm by effecting insurance on the partner- ship property.-' And all the members of a trading firm are re- sponsible for bills of exchange or promissory notes drawn and signed or accepted by one of its members in the firm name.'* But a farming or non-trading partnership implies no such authority. Sanction or usage should appear.^ Nor can one member of a firm of attorneys, as such, bind the firm by a post-dated check drawn in its name.*^ And the surrender of shares of stock, part- nership property, to the corporation issuing them, has been held fraudulent and void, when made by one partner under suspicious circumstances.^ One partner has power to represent and act for the firm in legal proceedings.^ From the mere fact that the partnership relation exists, one partner has no implied authority to bind the firm to others by 1. Winship v. Bank of United States, 5 Pet. 52?; Whitaker v. Brown, 16 Wend. 505; Etheridge v. Binney, 9 Pick. 272; Rothwell v. Humphreys, 1 Esp. 406. Obligation for acts of other partners. Book 3.3, N. Y. Rpts., Bender ed., note, p. 589. 2. Alexander v. Barker, 2 Cr. & J. 133. 3. Hooper v. Lusby, 4 Campb. 66 ; Foster v. United States Ins. Co., 11 Pick. 85 : Hillock v. Traders Ins. Co., 54 Mich. 531, 20 N. W. 571. 4. Kimbro v. Bullitt, 22 How. 256; Tolman v. Hanrahan, 44 Wis. 133; Wagner v. Simmon.s, 61 Ala. 143. Borrowing money on the credit of a partner's individual note does not cre- ate by presumption a partnership debt, though the money be applied to partnership purposes. Peterson v. Roach, 32 Ohio St. 374. Unless the firm name is used in the same con- nection in an apparently proper way. Rixllon V. Cliurchill, 73 Me. 146. Sec also Van Brunt v. Matlier, 48 Iowa, 503; Tolman v. Hanrahan, 44 Wis. 133; Pars. Partn., SS 131-146. 5. McCrary v. Slaughter, 58 Ala. 230: Kimbro v. Bullitt. 22 How. 256; Benedict v. Thompson, 33 La. Ann. 196; Bowling v. Bank, 145 U. S. 512. Forster v. Mackreth, L. R. 2 Ex. 6 163 7 127 Corastock V. Buchanan, 57 Barb. 8. Pars. Partn., § 118; 8 T. R. 25. In absence of statute* a partnership cannot sue or be sued apart from its members. Yarbrough v. Pugh, 68 Wash. 140, 114 Pac. 918. 279 « 188 THE LAW OF PERSONAL PROPERTY. [ PART 11. opening a bank account in his own name.^ Nor to draw a bill of exchange or note in his own name, even though he apply the proceeds for partnership purposes.^ Nor to pay his private debt by a check in the firm's name.^ For a creditor may be charged with constructive knowledge that the transaction is out of the partnership scope ; and whenever a person deals with one of the partners in a transaction of this sort, the law concludes, unless, there are circumstances or proof in the case sufficient to destroy the presumption, that he deals with him on the partner's private account, not^vithstanding the partnership name be assumed."' The attempt of a partner to apply the partnership property in payment of his private debt will not therefore, under all circum- stances, divest the title of the firm in favor of the creditor, even though the latter had no express notice of fraud.'* The rule is otherwise where a partner acts in fraud of his associates with strangers in a matter within the apparent scope of the partnership authority.^ And it is a material circumstance against the other partners that they so entrusted goods or the transaction to the partner in question as to enable him to deceive the public as to his authority in the premises, and that he did deceive the third person accordingly.^ As to negotiable paper in general, which bears the firm name, the act of one partner binds all, whether it be by drawing, accept- ing, or indorsing, so far as third persons acting in good faith and 9. Alliance Bank v. Kearsley, L. R. cited; Ellston v. Deacon, L. R. 2 C. 6 C. P. 433. P. 20; Story Partn., § 172 et seq. 1. Le Roy v. Johnson, 2 Pet. 186. 3. 3 Kent Com. 43, and notes; Story See Pars. Partn., § 138 ; Gansevoort Partn., § 133 ; Doty v. Bates, 11 Johns. V. Williams, 14 Wend. 133; Peterson 544. V. Roach, 32 Ohio St. 374 ; Lill v. 4. See Rogers v. Batehelor. 12 Pet. Egan, 89 III. 609. 221: Union Xat. Bank v. Underhill, 2. Davis V. Smith, 27 Minn. 337. 21 Hun, 178: Forney v. Adams, 74 A presumption of fraud arises in cases Mo. 138. where one partner uses the name and 5. 3 Kent Com. 46, citing Willet v. credit of the firm in settling up what Chambers. Cowp. 814. &e. See Hutch- are manifestly his own private trans- ins v. Turner. 8 Humph. 415. actions. Pars. Partn., § 112, and cases G.Locke v. Lewis, 124 Mass. 1; Kelton V. Leonard, 54 Vt. 230. 280 CHAP, ix] PAETNERS. § 188 without due notice are concerned, provided once more the trans- action appear to have been fairlj within the partnership scope/ But there are instances where the presumption of authority would be negatived bj the facts; as in the case where paper is indorsed which does not belong to the firm, by way of accommodation or as an interchange of credit, which is much like attempting to place the firm in the position of a surety. Of course the firm is liable where such use of its name was authorized; and even accommo- dation paper bearing an indorsement by a single partner would be binding in the hands of a honu fide holder for value without knowledge of the circumstances under which it was procured.^ A note given by a firm is not technically a joint and several obli- gation; the partners in all cases assume joint liabilities.^ So too a note payable to A. and B. prima facie imports a note to a part- nership.' Among the general rights of each partner as concerns the part- nership property are those of making payment for the firm of the partnership debts, and of receiving pa^>Tnent of any and all debts due to the firm. And incidentally one partner may compromise a debt, or authorize legal proceedings for its recovery.^ The lia- bility of all the members of a firm in a suit prosecuted to judgment against them on the partnership account, with or without attach- ment of the partnership property, will be strictly enforced.'' One partner may appoint an agent with authority to transact the joint business.'^ And a firm being by name empowered to act for a third party, one partner may sufficiently execute the agency.^ 7. Michigan Bank v. Eldred, 9 Wall. 1. Murphy v. Stewart. 2 How. 263. 544; Arden v. Sliarpe, 2 Esp. 523; 2. Pars. Partn., § 116. But see Ethoridpe v. Binney, D Pick. 272; Hamridge v. Dp La Croupe, 3 M. G. Pars. Partn., §§ 131-146, and notes; & S. 742. Story Partn., §§ 102, 126; infra. Bills 3. Th. ; Tnlnisch v. Fannell, 1 Black, and Notes, §§ 443-462. 566. 8. Early v. Reed, 6 Hill, 12: Waldo 4. Tillier v. Whitohead. 1 Dall. 269; Bank v. Lumbert, 16 Me. 416. Lucas v. Bank of Darien. 2 Stew. 280; 9. Mason v. Eldred, 6 Wall. 231; Cameron v. Blackman. 39 Mich. 108. Perring v. Hone, 4 Bing. 28. See 5. Kennebec Co. v. Augusta Ins. & Doty V. Bates, 11 Johns. 544. Bank Co., 6 Gray, 204. 281 § 188 THE LAW OF PERSONAL PROPERTY. [PART II. But from a general power granted to one of two partners, the other can derive no authority.*^ The rule has been that one partner cannot submit the interests of the firm to arbitration; the submission binding only himself.^ The same exception seems to have existed at the civil law. But why a partner should be specially restrained in this respect, it is hard to say.^ There are, however, technical objections to the power of a partner to bind the firm by executing a deed ; the ancient rule of our law being that a partnership has no seal, while authority to seal should be conferred by seal. A general partnership agree- ment under seal could confer no such authority.^ But this does not prevent one partner from executing a valid deed on behalf of the firm if his co-partners are present and consent.^ And the old rule is now greatly relaxed in American practice, through the intervention of equity doctrines. Even an absent partner is held bound by a deed executed on behalf of the firm by his co-partner, if he gave either a previous parol authority or subsequently con- firmed the act.^ So the seal to an instrument is sometimes held mere surplusage, as in the case of a mortgage of personal prop- erty, or an assigTiment for the benefit of creditors, or the release of a debt."' And though one partner for want of authority may 6. Edmiston v. Wright, 1 Campb. 1. Harrison v. Jackson, 7 T. E. 207. 88. 2. See Kent and Parsons, supra; 7. Karthaus v. Ferrer, 1 Pet. 222; Anthony v. Butler, 13 Pet. 423, 433; Buchanan v. Curry, 19 Johns. 137. Story Partn., §§ 119'-122; Worrall v. In some States a partner may thus Munn, 1 Seld. 221. bind, as matter of law, by his un- 3. Milton v. Mosher, 7 Met. 244 ; sealed agreement. McKee v. Buford, Harrison v. Sterry, 5 Cr. 289; Wood- 3 B. Mon. 435; 12 S. & K. 243; Pars. ruflf v. King, 47 Wis. 261; Wells v. Partn., § 121, n. Evans, 20 Wend. 251; Ex parte 8. See Pars. Partn., § 121; South- Hodgkinson, 19 Ves. 291; Schmertz v. ard V. Steele, 3 B. Mon. 435 ; Taylor Shreever, 62 Penn. St. 457. Our local V. Coryell, 12 S. & R. 243 ; 3 Kent statutes now largely reduce the former Com. 49 ; and n. ; Story Partn., § 114. requirement of seals in legal instru- 9. 2 Kent Com, 47, 48, and n. ; Pars, ments. Partn.. §§ 122-124, and notes; Tom v. Goodrich, 2 Johns. 213. 282 CHAP. IX] PAETNERS. § 189 not bind his co-partners by the execution of a sealed instrument in the name of the firm, yet in conformity to the general doctrines of agency he necessarily binds himself/ Yet in several modern American cases tihe general power of one to bind the others of his firm by a specialty is still emphatically denied, and he binds accordingly only himself, unless authorized.^ § 189. The Same Subject. The power to dispose of the partnership property may be exer- cised by a single partner in a variety of ways; always assuming that the case is free from collusion, and the transaction within the general scope and ordinary objects of the partnership. A partner may pledge, or, if no seal be requisite, mortgage, the personal eifects as well as sell them, and under corresponding restraints. Fraud and collusion would perhaps be more readily presumed in case of an assignment of the stock by way of pledge or mortgage by a single partner, than where goods are sold on delivery, or money paid over ; and yet there are instances where a pledge or mortgage of the whole stock in trade by one of the partners to secure a firm creditor has been upheld, the creditor having acted reasonably and in good faith.^ It should be observed that, as a partner's own interest in the copartnership property is his due proportion of a residue to be found upon a final balance, he can hardly transfer his own interest in the partnership stock 4. Bowker v. Burdekin, 11 M. & W. Partn., §§ 177-183, n.; Swectzer v. 128; Elliot v. Davis, 2 Bos. & P. 338. Mead, 5 Mich. 107; Roid v. TTollins- 5. Gibson v. Warden, 14 Wall. 244; head, 4 B. & C. 867; s. c. 7 1). & R. Walton V. Tusten, 49 Miss. 569; Wil- 444. As to a niortRagf. tlie nt-cc^isity Hams V. Gillies, 75 N. Y. 197; Rus- of formalitios under seal may sottip- sell V. Annable, 109 Mass. 72; Pars. times affeet the question. A partner Partn., § 124. It is held that a part- may assent to the tran.nfer of a part- ner may bind the firm by a sealed note ner-ship debt from one banker to an- executed in the name of the firm ; at other. See Beale v. Caddick. 2 II. & least to a certain extent. Walsh v. N. 326; Arnold v. Brown. 24 Pick. Lennon, 9'8 111. 27. 83; Win.ship v. Bank of United States, e. See 3 Kent Com. 46, and n. : Tap- 5 Pet. 561. ley V. Buttcrriold. 1 Met. 515; Pars. 283 § 189 THE LAW OF PERSONAL PROPEETY. [ PART II. effectually to a stranger without dissolving the partnership altogether/ As a general rule, and with but rare exceptions on familiar principles as to a bona fide purchaser or transferee for value without notice, the purchaser, pledgee, or transferee of one partner's interest can acquire no title to assets beyond the latter's share in such surplus as may remain upon a winding up of the firm business ; ^ and where a partner thus disposes of firm personalty without the knowledge of his copartners and in fraud of their rights, for his individual debt, the purchaser is held to acquire no full title thereto as against the partnership creditors.^ The admissions, representations, and misrepresentations of a partner are binding on the firm, provided they relate to and are made in the course of the partnership business and within its proper scope and contemporaneously. And even the acknowledg- ment of an existing debt by a single partner, while the partner- ship continues, will take the case out of the Statute of Limitations ; though on principle such an acknowledgment made after the partnership is dissolved can have no such effect.^ One partner cannot, in the absence of usage or special circumstances, bind the firm by the guaranty of a third person's debt, nor make his fellow-partners liable as mere sureties without their consent.^ 7. Pars. Partn., § 306; Van Sector 1. 3 Kent Com. 50, 51; Story v. Lefforts, 11 Barb, 140; Tarbell v. Partn., § 107; Pars. Partn., §§ 126- West, 86 N". Y. 280. See § 185, note. 129, and notes; Bell v. Morrison, 1 8. Staats v. Bristow, 73 N. Y. 264. Pet. 351; Shoemaker v. Benedict. 1 9. This rule applies most strongly Kern. 176; Turner v. Smart, 6 B. & C. if the transferee was cognizant of the 603. See Baker v. Seavey, 163 Mass. fraud. But even the transferee's in- 527, 40 N. E. 863. nocence will not here avail him. Tar- 2. 3 Kent Com. 47, and n.; Pars, bell V. West, 86 N. Y. 280; Liberty Partn., §§ 119, 144; Story Partn.. §§ Savings Bank v. Campbell, 75 Va. 127, 245; Foot v. Sabin, 19 Johns. 534; Forney v. Adams, 74 Mo. 138; 154; Rollins v. Stevens, 31 Me. 454: 59 Ala. 338. And see Drake v. Russell v. Annable, 109 Mass. 72. But Thyng, 37 Ark. 228 ; Hartley v. White, as to a guaranty of profits under a 94 Penn. St. 31. And as to the right sale, see Jordan v. Miller, 75 Va. 442. of the firm itself to recover saich A guaranty may become binding on property, see Johnson v. Crichton, 56 the firm by ratification. Clark v. Hy- Md. 108. man, 55 Iowa, 14. 284 CHAP. IX] PARTNERS. § 191 § 190. Liability of Firm for Fraud, etc., of Partner. Partnership contracts involving fraud and deceit are closely allied to the law of torts. The rule is that partners are liable in solido for the tort of one, if that tort were committed by the partner as such, and in the course of the partnership business; but not otherwise unless the wrongful act were authorized or adopted or at least negligently permitted by the firm.-' The connivance of copartners in a fraudulent transaction, and their voluntary participation in accruing profits, are circumstances which would justify the court in making all jointly responsible.'* But there are cases which tend to relax the rule of partnership liability someWhat more in torts than contracts, agreeably to the general rules of agency, so as to shield innocent partners who had no actual knowledge of the wrong committed, nor had consented thereto nor had negligently permitted, from the consequences of a partner's misconduct; though this holds true in the case of a pure tort rather than where wrongful transactions grow out of a contract.^ § 191. Rights and Duties of Partners as between themselves. Thus far we have considered the power of a single partner as concerns the public. The rule is quite different when we come A member of a firm cannot con- v. Blackman, 39 Mich. lOS; Fry v. fess judgment for a firm debt. Pars. Sanders, 21 Kan. 26. Partn., § 125; Hall v. banning, 91 As to liability of partners for rent U. S. 170. He has certainly no right under a lease, sec Stillman v. Har\-ey, to enter appearance for his firm after 47 Conn. 26. its dissolution. Hall v. Lanning, 91 3. Brydges v. BranfiU, 12 Sim. 369; U. S. 160. See post as to dissolution. Locke v. Stearns, 1 Met. 564; Pars. As to binding one partnership by Partn., §§ 100, 102; Graham v. Meyer, the acts of another having a common 4 Blatchf. 129; Coll. Partn. Am. ed., member, see Cobb v. Illinois Central § 738; Story Partn., §§ 234, 256. R., 38 Iowa, 601. 4. lb.: Castle v. Bullard, 23 How. One partner may buy goods for the 173: Coleman v. Pearce. 26 Minn. 123; concern, whether for cash or on credit, Tenney v. Foote. 9.') Til. 9D. 80 as to bind the firm. Johnston v. 5. Floyd v. Wallace. 31 Ga. 688; Bernheim, 86 N. C. 339; Davis v. McKnlght v. Ratcliffe, 44 Penn. St. Cook. 14 Nev. 265. And see Cameron 156. See Kavanaugh v. Mclntyre, 216 285 § 191 THE LAW OF PERSONAL PROPERTY. [part II. to apply it as between the partners themselves; for here the power of a single partner to bind the firm may be and is fre- quently modified by the partnership agreement. If there be written articles constituting the partnership, the power and authority of the partners inter se must be ascertained and regu- lated by the terms and conditions of those articles.^ As between themselves, partners may control and appropriate the firm assets in the adjustment of mutual claims in any manner they may choose.^ Nor as against his copartners, can a partner, without being duly authorized, make, accept, or indorse negotiable paper, unless the act is both within the scope of the partnership business and actually on account of the firm.^ Equity vsdll enjoin one partner from violating the rights of his copartner in partnership matters, although no dissolution of the partnership be con- templated.' N. Y. 175, 104 N. E. 135; Heiden- reich v. Bremner, 260 111. 439, 103 N. E. 275. But as to crimes, cf. State v. Burns, 25 S. D. 364, 126 N. W. 572. 6. Kimbro v. Bullitt, 22 How. 256 ; Story Partn., §§ 169-1S6, and cases cited. Right to accounting without dissolution. Book 36, N. Y. Rpts., Bender ed., note, p. 464. 7. MeCormick v. Gray, 13 How. 26. 8. See supra, § 188 ; Etheridge v. Binney, 9 Pick. 272. 9. Marble Company v. Ripley, 10 Wall. 339. As to remedies of partners in general, see Pars. Partn., cs. 8-10. A partner is impliedly bound to reasonably devote himself to the ad- vancement of the firm's business. Barclay v. Barrie, 209 N. Y. 40, 102 N. E. 602, 47 L. R. A. N. s. 839-, n. Special compensation to a partner is not presumed. Sandberg v. Scougale, 75 Wash. 313, 134 Pac. 1051; Rug- gles V. Buckley, 175 Fed. 57, 101 C. C. A. 547, 27 L. R. A. N. s. 541. But as to special outlay, see In re Campbell, 229 U. S. 561, 23 S. Ct. 796; Mack V. Engel, 165 Mich. 540, 131 N. W. 92 ; Talbert v. Hamlin, 86 S. C. 523. See also Persons v. Oldfield, 101 Miss. 110, 57 So. 417 (as to guaranty or surety) ; Feigenspan v. McDonnell, 201 Mass. 341, 87 N. E. 624 (borrow- ing money ) . One partner cannot put the firm into bankruptcy against the consent of the others. Steiner v. T. S. Faulk, 222 Fed. 61, 137 C. C. A. 599. One partner cannot sue another at law. Kalamazoo Trust Co. v. Mer- rill, 159 Mich. 649, 124 Mich. 597; Merrill v. Smith, 158 Ala. 186, 48 So. 495. As to ratification of a partner's acts, see Banks v. McKinley, 129 Minn. 481, 152 N. W. 879 (deed under seal) ; Lays v. Hurley, 215 Ma?s. 582, 103 N. E. 52; Blake v. Third Nat. Bank, 219 Mo. 644, 118 S. W. 641. See further, Union Land Co. v. 286 CHAP, ix] PARTNERS. § 191 Partners should observe perfect good faith with one another ; nor should any member of a firm transact independent business to the material injury of his associates, or otherwise place him- self in a situation where his bias is likely to be against the common interests.^ A partner may traffic quite outside the scope of the firm business for his own profit and advantage ; but if he secretly engages in the same business by himself, equity will subject his gains to tlio common benefit of the partnership.^ In- volved partnerships, where one individual connects himself with difi"erent firms engaged in the same kind of occupation or busi- ness, ought not to be greatly favored; for when one undertakes to serve two rivals who antagonize, he is likely to transfer his affections from one to the other according to the dictates of greedy self-interest rather than of duty. We are told that the Roman lawyers stigmatized that partnership where one tries to reap all the advantages for himself as the societas leonina, in allusion to the fable of the lion who went hunting with the other wild animals, and took all the prey as his own share.^ Each partner owes an amount of time, care, and trouble to the concern commensurate with his interest, or according to the mutual intent of the partnership. One partner ought not to exclude the others from advice or management; though, as controversies must exist even when all have been consulted, it appears to be settled that a majority in interest of the firm acting in good faith may bind the minority in interest-'* Gwynn, 216 N. Y. 664, 110 N. E. Zimmerman, 113 N. Y. S. 33 (App. 162; Strode v. Gilpin, 187 Mo. App. Term, 1909). 383; Crownfield v. Phillips, 125 Md. 1. Story Partn., §§ 123-125; Pars. 1, 92 Atl. 1033 (competing business Partn.. §§ 150-156; Murrell v. Mur- not allowed) ; Axton v. Ky. Bottlers rell, 33 La. Ann. 1233. Co., 159 Ky. 51, 166 S. W. 776; Craig 2. Latta v. Kilbourn, 150 U. S. 524. V. Warner, 216 Mass. 776, 103 N. E. 14 S. Ct. 201 ; Kimberly v. Arms, 129 1032 ; Willard v. Wright, 203 Mass. U. S. 512. 406, Sg' N. E. 559 ; Holden v. Thurber, 3. Pothier Contr. de Soc, c. 3 ; 3 72 Atl. 720 (R. I. 1909) ; People v. Kent Com. 29. 51. 52. Devlin. 63 Misc. 363, 118 N. Y. S. 4. Pars. Partn.. § 14D; Peacock v. 478; United States Exch. Bank v. Cummings, 46 Penn. St. 434; Kirk 287 § 192 THE LAW OF PEESONAL PROPERTY. [part II. § 192. Dissolution and Change of a Partnership; how effected. Thirdly. As to the dissolution and change of a partnership. A partnership may be dissolved in a variety of ways: by limi- tation of the period named in the partnership articles; by the voluntary act of all the partners whenever they may choose; often by the act of a single partner, amounting to withdrawal, since partnerships formed without limitation as to time are at will only ; ^ by the death of a partner ; generally in fact by a change in the firm membership ; also by decree of a court of equity or proceedings in bankruptcy.^ A partnership, or quasi partnership, which has been formed for a single purpose or transaction, ceases as soon as the business is completed.'^ Where the court interferes to pronounce a dissolution, the cause should be a weighty one; for in case of the minor misconduct of a co- partner, and general grievances requiring redress, the milder remedy of injunction which puts a stop to further mischief is V. Hodgson, 3 Johns. Ch. 400: Johns- ton V. Button, 27 Ala. 245; 3 Kent Com. 45, 46; Story Partn., §§ IB?, 175. A partner cannot by purchase become the individual owner of an outstanding note against the concern. Easton v. Strother, 57 Iowa, 506. A partner cannot usually charge his firm with interest. Topping v. Pad- dock, 92 111. 92. But one may be entitled to interest on money ad- vanced for the firm's use under fair circumstances. Baker v. Mayo, 129 Mass. 517. As to one's claiming spe- cial allowance for services to the firm (which ordinarily is not proper), see Godfrey v. White, 43 Mich. 171; 8 Daly (N. Y.), 176; Cramer v. Bach- mann, 68 Mo. 310; Heath v. Waters, 40 Mich. 457. An attorney repudiat- ing his partnership obligations in a cause entrusted to his firm cannot claim a share in the fees subsequently earned by his partners. Denver v. Roane, 99 U. S. 355. A partner may, for his delinquency, be chargeable with interest to the firm. Coddington v. Idell, 30 N. J. Eq. 540. The powers of partners are co- ordinate, whether the partnership is in active operation or subsists only for the purpose of winding up its affairs; and each partner ought to keep precise accounts of all his trans- actions for the firm, and keep them ready for inspection. Hall v. Clagett, 48 Md. 223. 5. Karrick v. Hannaman, 168 U. S. 334, 18 Sup. Ct. 135, 42 L. ed. 484. Presumption of continuance of part- nership, see Chamberlayne Evid., § 1046. 6. 3 Kent Com. 53: Pars. Partn., § 280 €t seq.; Story Partn.. §§ 265-319. Settlement of affairs. Book 38, N. Y. Rpts., Bender ed., note, p. 781. 7. 3 Kent Com. 52, 53. 288 CHAP. IX.] PARTNERS. § 193 preferred.^ A legal adjudication of bankruptcy or of insolvency against either the firm or a partner works a dissolution ; but not simple insolvency, or mere inability to pay.^ Fraud in the orig- inal creation of the partnership is ground for judicial dissolu- tion; ^ and so is the culpable miscounduct or insanity of a partner, or even an essential change of circumstances if thereby the pur- poses of the partnership become incapable of fulfilment.^ Visionary schemes will sometimes be dispelled by the court, and deluded partners released.^ And of course, where war breaks out, a partnership between citizens of the opposing governments must necessarily come to an end.'* Courts of equity exercise a liberal jurisdiction over granting a dissolution, which is usually for causes arising after the partnership was formed, and with an incidental accounting. § 193. Consequences of Dissolution as to Parties and Public. In general, a dissolution of partnership puts an end to the authority of one partner to dispose of the common property; it operates as a revocation of all power to make new contracts or impose new liabilities upon the late firm ; and the rights of the 8. Pars. Partn., §§ 206, 207 ; Howell son v. Tennant, 21 Bcav. 482 ; Clai- V. Harvey, 5 Ark. 278 ; Goodman v. borne v. Creditors, 18 La. 501. Whitcomb, 1 Jac. & W. 569 ; Fischer 3. Baring v. Dix, 1 Cox, 213 ; Beau- V. Raab, 57 How. (N. Y.) Pr. 87; mont v. Meredith, 3 Ves. & B. 180; Lyon V. Tweddell, 17 Ch. D. 529. 8 Ore. 84; Pars., § 357. 9. 3 Kent Com. 58-60; Pars. Partn., 4.3 Kent Com. 62; Griswold v. § 368 ; Siege! v. Chidsey, 28 Penn. Waddington, 15 Johns. 57 ; Pars., St. 279; Crawshay v. Collins, 15 Ves. § 357. A written agreement for dis- 217. Where partnership and individ- .solving a partnership supersedes all ual property are assigned in bank prior or contemporaneous agreements ruptcy, the court prefers, as far as on the subject. Bragg v. Geddes, 93 practicable, to apply partnership as- 111. 39. Any partner of a firm formed Sets to the partnership debts, and in- for an indefinite time may retire and dividual assets to individual debts. dissolve the partnership whenever he 133 U. S. 670. choo.se3, if his act be bond fide. 1. Hynes v. Stewart, 10 B. Monr. Fletcher v. Reed, 131 Mass. 312; Neil- 429; Fogg v. Johnston, 27 Ala. 432. son v. Moss End Co.. 11 App. Cas. 2ff8. 2. Story Partn.. §§ 291-294; 3 Kent For effect of his assignment, see Rid- Com. 62; Pars., §§ 360, 361; Harri- die v. Whitehill, 135 U. S. C21. 19 289 § 193 THE LAW OF PERSONAL PROPERTY. [pART II. partners as such extend no farther than to settle the partnership concerns and distribute the funds.^ This right may be restrained by a delegation of the authority to one of the late partners ; and frequently either the original articles or a special agreement made upon dissolution provide how outstanding accounts shall be ad- justed, who shall collect and pay the old debts, and how the con- cern in fact shall be wound up.^ Independently of special agree- ments, however, each of the late partners has full authority, not- withstanding the dissolution, to pay up and settle the outstanding debts, receive payment of sums owing the firm, compromise, dis- count, and give acquittance much the same as before ; though here we are speaking of partners inter se, for, as concerns innocent third parties, a single partner may have greater power to bind his late associates.^ Where the equality of rights on dissolution is restrained by agreement, the partner delegated to wind up the concern may indorse partnership notes, transfer by indorsement without recourse, sell, compromise, release, pledge collaterals, and otherwise do such acts as are reasonable and incident to the pur- pose of winding up, not renewing, the business. He is a trustee for the benefit of all, and will be treated in equity accordingly.^ But the consequences of a dissolution, as regards third persons, are quite different; and nothing can shield the members of the late firm from liability to the public on new contracts made ap- parently on the partnership account, but proper notice that the partnership exists no longer. For, until notice is given, the situa- 5. Bell V. Morrison, 1 Pet. 352; 6. Pars. ib. ; National Bank v. Nor- Pars. Partn., § 286 et seq.; Story ton, 1 Hill, 572. Partn., §§ 320-356. See Bank v. Car- 7. Pars. Partn. §§ 289-295; Butch- rollton Railroad, 11 Wall. 624; 91 art v. Dresser, 10 Hare, 453; Wood- U. S. 160. Rights of members after ford v. Downer, 13 Vt. 522; Darling dissolution of partnership. Book 5, v. March, 22 Me. 184; Bobbins v. N. Y. Rpts., Bender ed., note, p. 779. Fuller, 24 N. Y. 570. Rights, remedies and liabilities of sur- 8. Pars. ib. ; Parker v. Macomber, viving partner. Book 22, N. Y. Rpts., 18 Pick. 505 ; Bennett's Case, 18 Beav. Bender ed., note, p. 801. Title upon 339; Dunlap v. Watson, 124 Mass. division of assets. Book 26, N. Y. 305. A decree for dissolution of a Rpts., Bender ed., note, p. 544, firm should provide for an accounting. 290 CHAP. IX.] PARTNERS. § 193 tion of each individual is essentially that of a nominal partner ; he is to the world the same member of a firm that he was before. An outgoing partner can discharge himself from future liability to others, and indeed the partnership liability can be terminated altogether as to the public, by notice, express or by publication. Public notice is conclusive on those who have not had prior deal- ings with the firm ; and as to others, it is a question for the jury whether it amounted to notice in fact under all the circumstances.^ Furthermore, we must remember that when a partnership is dis- solved, it is not dissolved with regard to things past, but only with regard to things future ; ^ and the late partnership is not released from its liability on an outstanding and unexecuted transaction. But the reason of the rule requiring notice of dissolution to be given to the public extends only to the duty of making third per- sons acquainted with the fact that a dissolution has taken place, so that subsequent dealings with members of the late firm or their successors may be regulated by such persons understandingly. For all this, the question, what is a sufficient notice to the public, gives rise to much discussion in the courts. The custom and necessity of notice is recognized generally by the commercial world ; and sometimes the notice is given orally, sometimes by advertisement, sometimes by letter to those dealing with the firm, sometimes by a change of name on the sign-board ; and more fre- quently by two or more of these methods combined." A distinc- tion is made, in such cases, between old customers and new ones, founded upon an obvious propriety; and while, as to members of the former class, either express notice of a dissolution must be 9. Pars. Partn., § 299 et seq.; Story 1. Heath. J., in \Vooe, as to insolvency, In re Robert.^, 297 CHAPTER X MEMBEBS OF LIMITED PARTNERSHIPS, AND OF JOINT-STOCK COMPANIES, AND SHIP-OWNERS § 196. Limited Partnerships; Their Origin and Nature. I. The doctrine of limited partnerships was imported into the United States within a comparatively recent period from Continental Europe. By the ordinance of 1673, France first established partnerships of this sort, under the name of La Societe en Commandite; and New York was the earliest of the American States to set up a similar system; this being, as Chan- cellor Kent observes, the first instance in the history of its legis- lation where the statute law of any other country than that of Great Britain has been closely imitated and adopted.^ There is now scarcely an important State under our federal government where limited partnerships are not recognized; and although it is the policy of legislation in some parts of this country to prevent them from being formed for the transaction of banking, insurance, or other special kinds of business, yet the combination of persons as limited partners in the ordinary pursuits of trade is almost everywhere favored and protected in America. In England the limited partnership principle is not adopted as to individuals ; but within the nineteenth century we find it fre- quently applied with reference to joint-stock companies.^ Where- ever limited partnerships have been permitted, the system is found to have worked well and to have given universal satisfaction. The main purpose of a limited partnership, as may be inferred from what we said at the close of the last chapter, is to aid and encourage trade and commerce, by inducing those to embark 214 N. Y. 369, 108 N. E. 562; Robin- 2. Lethbridge v. Adams, L. R. 13 son V. Security Co.. 87 Conn. 268, 87 Eq. 547; Stats, cited Pars. Partn., Atl. 879. § 421, n. Our latest tendency is to 1. Coope V. Eyre, 1 H. Bl. 48; Po- treat limited partnerships with still thier Partn., n. 60; Pars. Partn., 4th increasing favor. White v. Eiseman, ed., § 421 et seq.; 3 Kent Com. 35, 134 N. Y. 101, 31 N. E. 276. 36; Troubat Lim. Partn., § 39. 298 CHAP. X.] MEMBERS OF LIMITED PARTNERSHIPS, ETC. § 197 their wealth or a portion of it in bnsiness pursuits, who would shrink from encountering the risks which attend the ordinary partnership combinations. That system relieves such persons from partnership liability beyond the extent of the capital fur- nished by each to the concern. And a limited partnership, in our modern sense, may therefore be defined as one in which one at least of the partners is a partner in the ordinary sense as to rights and liabilities, while at least one other person invests in the business and is liable to the extent of his investment, and no farther.^ With us, this class of partnerships is usually allowed by general statute; but in England, rather by charter. In such a combination, those partners whose liability is unrestricted are called general partners; and those with limited liability, special or limited partners.'* Of course there is danger that, when partnership liability is relaxed, an adequate check to speculation will be wanting. This danger it is the aim of our legislation to guard against. Another danger appears in the temptation thus afforded to measure lia- bilities by the limited partnership standard after gaining undue credit with those who suppose themselves dealing with ordinary partners. This, too, the law seeks to prevent. Precautions are thus imposed by local statutes, to which all who propose doing business on the limited partnership plan are bound to conform. § 197. The Same Subject. " That the statutes on limitod partnership in the various States should be in substance identical," says Mr. Troubat, " is per- fectly natural ; inasmuch as the common source, the commercial code of France, the work of the jurists of the Empire, has been largely borrowed from by them all." ^ The statutes of the vari- ous States widely differ in text; and yet in leading details they 3. Pars. Partn., § 422; Collyer ship. Liability of special partner. Partn. b. 1, c. 1, §§ 3, gO ; 3 Kent Book 28. N. Y. Rpts., Bcndor ed., Com. 34. note, p. 304. 4. 3 lb. " Limited " partnership is 5. Troubat Lim. Partn., § 39. sometimes styled " special " partner- 299 § 197 THE LAW OF PERSONAL rROrERTY. [pART II. are quite similar. There is usually a certificate to be recorded at the outset, — this more especially by way of caution to the public; and such certificate is to be published in some newspaper. Whenever the partnership is renewed or continued beyond the time originally agreed upon, a new certificate mu^t be recorded and published in like manner. Provisions are also made as to the manner in which the partnership shall be conducted. And a public record of the fact of dissolution, with printed notice in the newspapers, is also requisite to make the dissolution eifectual as against the world. Such are the principal features of our stat- utes of limited partnership.^ In some States there are no restrictions imposed, apparently, concerning the purposes for which individuals may enter into a limited partnership ; but in others the kinds of business to be thus pursued are distinctly enumerated by statute. And in New York, Massachusetts, and the I^ew England and Middle States generally, together with Ohio, California, Tennessee, Georgia, and numerous other Western and Southern States, the business of banking is specially excepted, as well as insurance, or at all events, one of these two classes; the reason, doubtless, being that pursuits of this kind, involving large hazards, requiring consider- able capital, and exercising a potent influence upon society, are thought to be unsuitable to partnerships with a diminished respon- sibility, if indeed they should be conducted by partnership com- binations at all.'' Banking and insurance business is for the most part in this countiy monopolized by chartered corporations. The legal existence of a limited or special partnership does not depend upon the public notice of its formation: the practical effect of failure to publish as the statute requires being that the partnership becomes a general one as concerns the public ; ^ 6. See e. g. Mass. Rev. Laws, c. 71. essentially a limited partnership, of 7. Pars. Partn., §§ 421-430. As to similar French derivation, see 32 La. the Louisiana partnership m com- Ann. 657 ; 33 La. Ann. 812. mendam, under the CJode, which is 8. Tracy v. Tuffly, 134 U. S. 206. 300 CHAP. X.] MEMBEKS OF LIMITED PARTNERSHIPS, ETC. § 198 though a person may still remain a special partner towards his co-partners.^ § 198. Limited Partnership; Preliminaries; Certificates, etc. The preliminary certificate of a limited partnership is, in gen- eral, to be signed bj all the parties to the combination ; to specif j the name or firm under which the partnership is to be conducted ; to give the name and residence of each general or special partner, distingiiishing who are general and who are special partners; to state the amount of capital which each special partner has con- tributed to the common stock, the nature of the business to be transacted, and the time when the limited partnership is to com- mence and when it is to terminate. This certificate must be acknowledged before a magistrate and recorded with the public records, in the place where the parties reside, or where the firm is to do business, or both, according to the terms of the local statute. And the method of advertising this certificate in the newspapers is also designated bj statute.^ All of these statute preliminaries must be strictly pursued; for they are all measures of precaution, upon which the public, whose ordinary means of security are diminished, have a right to insist; and a mistake of substance, or an intended omission or error, whether by a general or special partner, throws all alike into the condition of an ordinary partnership. By this we mean that they are thereby made liable as ordinary partners to the public; for, as between themselves, notwithstanding the false- hood or error, their agreements might still bo valid; the general principles applying which we discussed in tho last chapter.^ 9. Guillou V. Peterson, 89 Penn. St. 6 Hill, 479 ; Henkcl v. Hcyman, 91 163; Abcndroth v. Van Dolson, 131 111. 96. Articles do not take effect U. S. 66. until recorded; and, as to previous 1. See Pars. Partn., § 424 ; Trou- transactions, a general partnership bat, e. 4. liability is incurred. T^evy v. Lock, 2. Pars. Partn., §§ 424-426; Rich- 5 Daly (N. Y.), 46. Tf the partner- ardson v. Hogf?, 38 Pcnn. St. 153; ship inovos into another county. &C., Bowen v. Arfjall, 24 Wend. 490) ; Van- a now certificate is requisite, within dike V. Ros'skam, 67 Penn. St. 330: the intendment of legislation in many 301 § 198 THE LAW OF PERSONAL PROPERTY. [PART II. So, too, it is common for our statutes to require the payment by the special partner of his specific sum " in cash," by way of partnership capital. A requirement so plain and so reasonable cannot be evaded or disregarded with safety. Where the special partner pays in notes, though they were treated as cash by the firm, he incurs the liability of a general partner.^ iSTor is a contribution of goods, or of credits or the assets, of other firm, or even of government bonds a " cash " payment.'* Where the ostensible special partner invests, not his own, but another per- son's capital, the result appears to be held similar, and devices generally prove disastrous.^ But mere defects in the certificate, or record, or advertisement, do not vitiate, if merely formal, and honestly made, and if thereby a third party cannot be injuriously misled; for it is, after all, the possible injury to a third person which the courts mainly regard in matters of this kind. And as to the time of record or publication a reasonable rule is favored.^ But in speaking of an injury to third parties as possible, we speak of a logical pos- sibility; for it has been held that, where the certificate was pub- lished in two newspapers, and in one of them the sum contributed was said to be five thousand dollars, when in fact it was but two States. Kiper v. Poppenhausen, 43 expressed if " cash " is not the sole N. Y. 68. prerequisite. Maloney v. Bruce, 94 3. Pierce v. Bryant, 5 Allen, 91; Penn. St. 249; 3 Col. 342. The spe- Haggerty v. Foster, 103 Mass. 17, cial partner's capital is of course 4. Lineweaver v. Slagle, 64 Md. protected against misappropriation or 465 ; Allen Re, 41 Minn. 430. undue loss upon contracts made by 5. Metropolitan Bank v. Sirret, 97 the general partners so far as the N. Y. 320. See Bulkley v. Marks, 15 policy and scope of legislation sane- Abb. Pr. 454. Contribution in " cash tions, he being free from blame. See and goods " is not a " cash " contri- Snyder v. Leland, 127 Mass. 29'1 ; bution in compliance with the statute Seibert v. Bakewell, 87 Penn. St. expression. Van Ingen v. Whitman, 506. 62 N. Y. 513. And see Haggerty v. 6. lb.; Lachaise v. Marks, 4 E. D. Foster, 103 Mass. 17. In general. Smith, 610; Madison County Bank property contributed by a special v. Gould, 5 Hill, 309 ; Bowen v. Ar- partner should comply with the local gall, 24 Wend. 496; Bradbury v. statute as to character, and the sched- Smith, 21 Me. 117; White v. Eise- ule and valuation should be clearly man, 134 N. Y. 101, 31 N. E. 276. 302 CHAP. X.] MEMBERS OF LIMITED PAKTNERSIIIPS, ETC. § 199 thousand dollars, the error being that of the printer, the special partners are liable as general partners ; and this, too, without proof that the creditors were misled by the misprint.^ § 199. Limited Partnership; Business, how Conducted. The business of a limited partnership is usually to be con- ducted under a firm in which the names of the general partners only shall be inserted, without the addition of the word " com- pany " or any other general term. N"or must the special partner make personally any contract with third persons relative to the business of the firm. And, contrary to the rule of ordinary partnerships, all suits respecting the partnership business are to be prosecuted by and against the general partners only; cases, of course, being excepted, where the special partners have laid them- selves open to the liabilities of general partners. Provisions of this sort will frequently be found among the local statutes which set forth the manner in which the concerns of a limited partner^ ship shall be managed, so as to shield those whose purpose it is to risk only a specific sum in the hazards of trade.^ It must hence follow that the special partner can take no active part in the firm transactions, nor even allow his name willingly to be used in any partnership contract, without incurring those very responsibilities which he has sought to avoid.^ It is held, more- over, that a special partner can neither transact firm business nor bind the firm by attempting to do so.^ And as a matter of further wise precaution, our legislators expressly forbid the re- duction of the capital stock, during the continuance of such a partnership, below the sum stated in the certificate, whether by a direct withdrawal, or indirectly, imdor pretence of a division 7. Smith V. Argall, 6 Hill, 479. 5 Hill, 309; Jonau v. Blanchard, 2 8. See Mass. Rev. Laws, c. 71; Rob. (T>a.) 51.1. He should not repre- Pars. Partn., §§ 426, 427; Schoulten sent himself as a peneral partner. V. Lord, 4 E. D. Smith, 206; Capp v. Barrows v. Downs, 9 R. I. 446. Lacey, 35 Conn. 463. 1. Columbia T^nd Co. v. Daly, 46 9. Madison County Bank v. Gould, Kans. 504, 26 Pac. 1042. 303 § 200 THE LAW OF PERSONAL PROPEETY. [PART 11. of interest and profits.^ And special statutes are to be found respecting the insolvency of a limited partnership, and the pref- erence among creditors.^ The prescribed penalty for a disregard of the statute regulations is, for the most part, that the special partner shall be held liable as a general partner ; but whether he ought or can be made to suffer, whenever the fault was that of the general partner alone, and he neither knew nor consented to the act of disobedience, is quite another thing. The limited part- nership statutes, being exceptional in their nature, cannot, at all events, be enlarged by construction ; and it is safe to presume that in all things where the partnership liability is not distinctly lim- ited, the business combination is that of ordinary partners, and the mutual rights and liabilities are to be adjusted accordingly.'* § 200. Limited Partnership; Dissolution and Its Consequences. A limited partnership is dissolved in the usual manner: by effluxion of time, death of a partner, judicial decree, or other- wise, according to the legal methods indicated in the last chapter. But no dissolution is effectual, according to the policy of our legislation, where the parties to the limited partnership volun- tarily put an end to it before the time specified in their published certificate, unless public notice is given, by registry and adver- tisement, after the method of the original certificate, l^o such formality is requisite, when the time limited in the original cer- tificate has expired, nor in general where the partnership is ter- 2. Singer v. Kelly, 44 Penn. St. 155. 4. See Lacliaise v. Marks, 4 E. D. See Pars. Partn., §§ 426, 427. Smith, 610; Singer v. Kelly, 44 Penn. 3. See Artisans'* Bank v. Treadwell, St. 145; Mass. Rev. Laws, c. 71. 34 Barb. 553; Mass. Rev. Laws, c. 71. See Lobsitz v. Lissbeger, 168 App. A special partner cannot as such be- Div. 840, 154 N. Y. S. 1130 (equity come party to a transfer of all the procedure) ; Patterson v. Youngs, 154 firm assets to one creditor for the App. Div. 536, 139 N. Y. S. 670; benefit of the rest, under Massachu- Beach v. Business Man's Pub. Co.. setts Statutes. Farnsworth v. Board- 163 Mich. 226, 128 K W. 177: Skobiy man, 131 Mass. 115. But it is held v. Richter, 139 App. Div. 534, 124 that all should join in an assignment N. Y. S. 152 ; Wood v. Sloman, 150 for creditors generally. In re Allen, Mich. 177, 114 N". W. 317 (third per- 41 Minn. 430, 43 N. W. 383. son misled). 304 CHAP. X.] JOINT-STOCK COMPANIES. § 201 minated by act of the law ; though in case of dissolution by death or bankruptcy it would certainly be safer to give the notice. And these formalities having been complied with, a special partner has no further responsibility save that connected with a winding- up of the concerns, unless indeed by his conduct he has lent him- self substantially to a now partnership combination after the old one has expired.^ § 201. Joint-Stock Companies; Nature and Origin; English Statutes. II. Personal property may also be invested for business pur- poses by means of that combination known as a " joint-stock company." Joint-stock companies are not very common in this country, since our policy largely favors, as the oifset of an ordi- nary trading partnership, limited partnerships and corporations, the latter being under special or general statute, as the case may be. But in England, where it has been difficult and expensive to procure an act or charter of incorporation from the government, and where the limited partnership system has hardly yet gained a foothold, those who wish to unite for business purposes, secur- ing the co-operation of a larger number of individuals than can safely or conveniently combine as ordinary partners, with, if possible, a diminished personal responsibility for the common debts, bring their capital together into that rather clumsy con- cern known as a joint-stock company, — an organization which is in the main a partnership sui generis, though subject to peculiar statutes, and in its methods of executive management not unlike a corporation,^ The English statutes on this subject are quite 5. See Mass. Rev. Laws, e. 71; Pars. St. 372. An increase in the amount Partn., § 428; Haggerty v. Taylor. of capital makes the partnership a 10 Paige, 261 ; Ames v. Downing, 1 new one. Linoweaver v. Slaglo. 64 Brad. 321. Statute roquirements as Md. 46.5. See further, I.')? Mich. 609. to public certificate, &c., of dissolu- 122 N. W. 217. tion must be strictly complied with. 6. .Toint-stoclc companies, under our In re Terry, 5 Biss. 110. As to a American aspect, though authorized renewal, see 120 N. Y. 381 ; 109 Penn. by statute, are in effect (limited) 20 305 § 202 THE LAW OF PERSONAL PROPERTY. [pART II. numerous; the most important being, however, what is called " The Companies Act of 1862," an act designed to consolidate the entire law of joint-stock companies and to regulate their con- stitution, government, and winding up.'' The principle of limited liability is to some extent recognized by this act; and the Eng- lish policy is here to require every company, association, or part- nership, consisting of more than ten persons, which is formed for the purposes of banking, or of more than twenty persons for " carrying on any other business that has for its object the acqui- sition of gain," to be incorporated under the Companies' Act.^ § 202. Joint-Stock Companies; The Subject Continued. Unlike a partnership, the joint-stock company is managed by a few chosen individuals whose powers and functions resemble those of corporation directors ; while the shareholders at large appoint these managing officers and hold them accountable. Such is the general tenor of legislation on this subject; yet if there be no statutory provisions regulating the subject, the majority of the shareholders of the company must fundamentally deter- partnerships and not corporations ; ized in compliance with the act ; that there is no intermediate class. Such the deed of settlement was not in a company cannot sius as a corpora- object such as to authorize the earry- tion. Imperial Refining Co. v. Wy- ing on of business bj' directors ; but man, 38 Fed. 574 ; Davison v. Holden, rather so as to provide a trust fund, 55 Conn. 103, 10 Atl. 515; Eicker v. to be managed by trustees. James, American Loan & Trust Co., 140 L. J. (p. 273), commenting upon the Mass. 346; 48 Ohio St. 513. words "company, association, or 7. See Cox's Joint-Stock Compa- partnership" limiting the business nies, 7th ed., 1, 4; 25 & 26 Vict., (used in the text above), expresses c. 69; Pars. Partn., § 431. See also the opinion that the act was intended English act 1890 on the subject of to prevent the mischief arising from companies. Registry is a feature large trading undertakings being ear- under the " Companies Act" of 1880. ried on by large fluctuating bodies, so 8. lb. The nature and purposes of that persons dealing with them did the " Companies Act " are largely not know with whom they were con- discussed in an English case. Smith tracting, and might be put to great V. Anderson, 15 Ch. D. 247. Here it difficulty and expense, which was a was held that a certain submarine- public mischief to be repressed, telegraph association was not organ- 306 CHAP. X.] JOINT-STOCK COMPANIES. § 202 mine how and bj whom its affairs shall be conducted.^ In other respects joint-stock companies imitate corporations, both as to their organization and the methods of conducting their business. They have a common name (though not, apparently, a common seal) and by-laws of their own; and they issue certificates, or scrip, which are to be transferred and registered like certificates of stock. In short, the " English companies acts " are very much like our general statutes relative to corporations ; and even where the two systems differ, it is rather because local legislation pro- vides for the one what it has failed to provide for the other. ^ It is probable that in England, under the statutes which regulate this subject, a partner in a joint company which had adopted certain rules would not be liable to third persons acquainted with those rules beyond the limits so defined.^ But in this country joint-stock companies must assimilate more closely to the ordinary partnership; and such companies cannot ordinarily be supposed capable of taking to themselves the privileges of a diminished personal liability, any more than those who associate together for the purposes of a general partnership. It is the law-making power which must grant immunities of the kind. This we assert as founded upon reason and principle, even if precedents are wanting.^ 9. 1 Lind. Partn. 556 et seq. See mality or the want of legislative Dow V. Moore, 47 N. H. 419 ; Melting sanction, they constitute general part- Co. V. Reese, 118 Penn. St. 355; nershipg. See Pars. Partn., § 431; McFadden v. Leeka, 48 Ohio St. 513. Whipple v. Parker, 29- Mich. 370; 1. See ib. ; Pars. Partn., § 432; Manning v. Gashario, 27 Ind. 399; Regina v. Registrar, 10 Q. B. 839; National Bank v. Landon, 4r, N. Y. Wordsw. Joint-Stock Companies, c. 419; Taft v. Ward, 106 Mass. 518; 1; Lethbridge v. Adams, L. R. 13 Eq. Logan v. McNaughor, 88 Ponn. St. 547. 103. See Gott v. Dinsmore, 111 2. Blundell v. Winsor, 8 Sim. 601; Mass. 45; Taft v. Warde, 111 Mass. Walburn v. Ingilby, 1 Myl. & K. 51. 518. A joint-stock company has been 3. See Hess v. Werts, 4 S. A R. held legal at common law. Phillips v. 366; Bright. Fed. Dig. Joint-Stock Blatchford. 137 Mass. 510. See Company; Pars. Partn., § 432 et seq. Macombor v. Endion Grape Juice Co., Where joint-stock associates fail to 160 Mich. 54, 125 N. W. 26 (fraud become properly and legally consti- in selling stock) . tuted as a company from' some infer- 307 § 204 THE LAW OF PERSONAL PEOPERTY. [PART II, § 203. Joint-Stock Company and Partnership Compared as to Dissolution. There is, however, one decided advantage which a joint-stock companj may be said to have over an ordinary partnership. It is not so readily dissolved at the choice or by the death of a member. For, as it was observed in an English case: "A joint- stock company is not an agreement between a great many persons that they will be co-partners, but is an agreement between the owners of shares, or the owners of stock, that they or their duly recognized assigns, the owners of the shares for the time being, whoever they may be, shall be and continue an association together, sharing profits and bearing losses." '^ Hence it is that the stock is transmissible and transferable ; and even when a shareholder dies, the presumption is that his executors, in their representative capacity, succeed to his full liability as well as his rights.^ Thus the partnership, if such it be, goes on without the strict choice of personal association which prevails in a partner- ship proper. § 204. Joint-Stock Company Compared with Corporation ; Amer- ican Decision. To courts of this country, accustomed to deal with partners and corporations simply, the joint-stock company must present itself as a somewhat anomalous institution. And in the highest tribunal of this land, in ISYl, where the question for decision was, whether " an insurance company, incorporated or associated under the laws of any government or State other than one of the United States," could be made to pay a tax, under a Massachu- setts statute, for the privilege of conducting its corporate busi- ness within the State, the characteristics of an English joint- stock company under its " deed of settlement " or " articles of 4. Baird's Case, L. R. 5 Ch. 725, out several particulars in which the 734. transfer of shares would subject the 5. lb. See Pars. Partn., § 435, and parties concerned to the law of ordi- cases cited. But Mr. Parsons points nary partnership. 308 CHAP. X.] PAKT-OWNEKSllIP IN SHIPS. § 205 association " received considerable attention. The tax was held to be lawful; and this, as the court viewed the statute, because the insurance company was, under the laws and policy of the United States, no more and no less than a corporation.^ In truth a joint-stock company may readily resemble a corporation in one phase, and a partnership in another; and partaking more or less, as may happen, of the incidents of either of those two distinct relations, American law refuses to recognize it as a separate and independent relation, § 205. Part- Ownership in Ships or Vessels; Its Nature. III. Before passing to the subject of corporations, we may 6. It was a corporation, because it had (1st) a distinctive artificial name by which it could make con- tracts; (2d) a statutory authority to sue and be sued in the name of its officers as representing the associa- tion, though not in the artificial name; (3d) a statutory recognition of the association as an entity distinct from its members, by allowing it to sue the shareholders and be sued by tbem; (4th) a provision for perpet- ual succession by transfers of its shares, st) that new members are in- troduced in place of those who die or sell out. Nor did the court deem that the association was any the less a corporation because its members were liable individually for the debts of the company ; since the principle of personal liability is applied by express statute to no small propor- tion of the corporations of this country. Liverpool Ins. Co. v. Mas- sachusetts, 10 Wall. 560. per Miller, J. Mr. Justice Bradley dissented from the.se views. In California there is a species of qualified partnership, known as a mining partnership, and recognized in numerous instances where persons associate for the purpose of working a mine together and di\nding, but not for trading together on its pro- ducts. Combinations of this char- acter unite some of the incidents of ordinary partnerships with those of tenancies in common. Settembre v. Putnam, 30 Cal. 490. Such partner- ships, where there are no partnership articles, are subject to the ordinary law of partnership, except for differ- ences sanctioned by local usage ; the only general difference being that in such partnerships there is no delectus persnnw. Jones v. Clark, 42 Cal. 180; Taylor v. Castle, 42 Cal. 367. And see Quinn v. Quinn, 81 Cal. 314; Bis- sell V. Foss, 114 U. S. 252; Kahn v. Smelting Co., 102 U. S. 641; Kim- berly v. Arms, 129 U. S. 512; Ash- ley V. Bowling, 203 Mass. 311, 18? N. E. 434 (cooperative store) ; Nich- olls V. Buell, 157 Mich. 609, 122 N. W. 217; Strang v. Osborne, 42 Colo. 187, 94 Par. 320; Andrew*? v. Brace. 154 Mich. 126, 117 N. W. 586; Bishop V. Bishop, 81 Conn. 509, 71 Atl. 583. 309 § 206 THE LAW OF PERSONAL PROPERTY. [pART II. properly notice the peculiar manner in which a ship or vessel is usually owned. A chattel so costly, exposed to so many risks, and requiring such expensive repairs, necessarily requires two or more persons, in most instances, to join in its purchase; and those who own a ship together hold it neither as joint or common owners, nor as partners, but as part-owners, a species of relation peculiar to the property. And the rights and duties of part- owners, whether among themselves or as to third persons, are to be determined by the law of shipping, which is founded on com- mercial usage, and may be considered older, when viewed from our standpoint, than the law of partnership itself. Such persons are, in general, found to be tenants in common as to the ship, but co-partners concerning the maritime enterprise in which the ship engages.'' Let us consider, then, the nature of this interest of part-owners, first with relation to one another, and second with relation to third persons. § 206. Part-Owners, with Relation to One Another; General Principle of Ownership. First, as to part-owners of ships with relation to one another. We have seen that mere tenants in common of chattels exercise little control over the common property, and fail to possess 'cer- tain powers and rights essential to the conduct of business with it as capital; that owners in severalty must form a partnership, if they wish to go into active business effectively with their re- spective means. Now, as to ships, " which are built to plough the sea, and not to lie by the walls," commercial nations find that it is beneficial to government no less than the individual to keep them in active employment ; and hence they long since con- trived a system which should meet the case. As to the vessel, therefore, the owners are tenants in common, each having a dis- tinct though an undivided interest; and thus do they stand towards one another. The different part-owners may have 7. See supra, c. 8; Abb. Shipping, Perk. ed. 98; Pars. Partn., 3d ed., e. 19; Bright. Fed. Dig. 782. 310 CHAP. X.] PAItT-OWXERSIlIP IN SHIPS. § 206 acquired their respective interests in different ways: they may have built it together at their common expense, or they may have purchased it together; or one or more of the part-owners may have purchased his share from -a former whole or part owner. But however acquired, the parties, in the absence of positive stipulations to the contrary, hold the property as " part-owners ; " in the present aspect, like tenants in common, and not, of course, as joint-tenants.^ And if property is given to two or more as owners of a ship, it belongs to them as tenants in common, and not as partners; nor would the principle of survivorship apply.^ But while part-owners are not necessarily partners, it is well established that they may be partners; that is to say, that per- sons united in a general partnership may own a ship, or some interest in a ship, as part of the partnership property.^ And, more than this, part-owners of a ship, who own nothing else in common, may agree to become partners of that ship.^ Whether a person is to be considered a partner or a part-owner must depend upon the special circumstances of each case ; but the usual rela- tion of those owning ships and vessels is that of part-owners, and not partners; and such is the strong presumption whenever a controversy arises, since the partnership relation applied to such property would present some decided disadvantages with scarcely a mutual advantage to balance them.^ The ownership of a vessel may be proved in the same manner as that of any other chattel, in the absence of controlling statutes to the contrary. But registry laws are an important feature of 8. lb.; Story Partn., § 417; 3 Kent Patterson v. Chalmers, 7 B. Monr, Com. 151 ; Mitchell v. Chambers, 43 407. See Merritt v. Walsh, 32 N. Y. Mich. 150; Mumford v. Nicoll, 20 685. Johns. 611; Merrill v. Bartlett, 6 2. lb.; Harding v. Foxcroft, 6 Pick. 46. The cases are quite nu- Grecnl. 77; Thorndike v. De Wolf, merous. 6 Pick. 120. 9. Thorndike v. De Wolf, 6 Pick. 3. Holdernesi? v. Shackels, 8 B. & 120; Harding v. Foxcroft, 6 Greenl. C. 612; 3 Kent Com. 154. Of course 78. a vessel may be owned by an indi- 1. Abb. Shipping, Perk. od. 98; vidual ; and as to ownership by a Mumford v. Nicoll, 20 Johns. 611; corporation see next chapter. 311 § 207 THE LAW OF PERSONAL PROPERTY. [PAET II. our eommercial system; and the names and respective shares of part-owners ought, under our latest statutes, to appear inserted in the register. Where this is not done, and no distinct shares are otherwise clearly shown, the parties would be presumed, as in the case of a partnership, to be equal owners of the property.* When those interested in a ship or vessel are part-owners, holding the property after the manner of tenants or owners in common, their rights and duties correspond to the nature of their interest. Thus, if one dies, his share goes to his representatives, and not to the surviving part-owners, as would have been the case in a joint-tenancy.^ § 207. The Subject Continued; Right to Dispose of Vessel. N^o part-owner can sell more than his own interest in the ship, unless specially authorized to act as agent for another part- owner.^ Bnt, if the owners of a ship or vessel choose to make themselves partners therein, their powers and duties will be de- termined by the rules of partnership ; in which case one partner may sell or mortgage the entire interest of the firm in the prop- erty, and exercise the jus disponendi after the usual manner of partners.'' And yet, as a partner cannot introduce a new person into the firm without the assent of his co-partners, he stands at a disadvantage when compared with the part-owner; for the lat- 4. Bright. Fed. Dig. 780: Pars. and such as have actual notice there- Partn. 552; 9 U. S. Stats, at Large, of. And see §§ 300-334, as to Ships 441; Alexander v. Dowie, 1 H. & N. and Vessels; 5 Sawyer C. C. 83. 152; Abb. Shipping, 97, 98; 1 Pars. 5. See Abb. Shipping, 97, 100, Shipping (1869), 90. See Moore v. Perkins's n. ; Pars. Shipping, 90; Rex Simonds, 100 U. S. Supr. 145; 5 v. Collector, 2 M. & S. 223; Bulkley Sawyer C. C. 83; Bowen v. Warren, v. Barber, 6 Ex. 164. 71 Me. 470. 6. lb.; Henshaw v. Clark, 2 Root, See U. S. Revised Statutes, §§ 103; 3 Kent Com. 140, 153; Story 4192, 4193, invalidating bills of sale, Partn., § 417. As to the effect of a mortgages, &c., of United States ves- sale by a master and part-owner, see sels, unless recorded, construed in § 214, post; Williams v. Ireland, 11 Moore v. Simonds, 100 U. S. Supr. Phila. 273. 145, not to make an unrecorded mort- 7. Patch v. Wheatland, 8 Allen, gage invalid as against the parties, 102 ; Milton v. Moslier, 7 Met. 244. 312 CHAP. X.] PART-OWNERSHIP IN SHIPS. § 208 ter may transfer his own undivided interest in the ship so as to give to the transferee all the rights and powers which he pos- sessed, together with his share in the property.^ While a part-owner, on the principle of a tenancy or ownership in common of chattels, can sell only his own undivided interest, those of his co-owners whose shares he has sold may subsequently ratify the sale, in which ease it becomes in effect their own sale, since the doctrines of agency would thus apply.^ But the rule appears to be (although there is some doubt as to what will au- thorize one owner in common to sue his co-owner) that if a part- owner sells the whole vessel as his own, the sale, when carried into effect, is such a constructive destruction of the property of the other owners as to amount to conversion, and so enable them to maintain tz'over against him, or against the purchaser who sells the ship again as his own.^ This action of trover would not lie against a part-owner for merely dispossessing his co- owner.^ Nor can one part-owner maintain replevin against another; nor perhaps sue in trespass for the sale of the whole."' In all these respects, the usual rules of a common o^vne^ship of chattels apply. § 208. The Same Subject; Employment of the Ship or Vessel. When we come to the employment of the ship or vessel to the enterprises in which it engages, we find an enlargement of the mutual rights and duties of co-owners ; for those who o\\ti the ship as part-owners, and load and send it out on an adventure in the cost and profit and control of which thcv are to share, are quasi partners as to this particular voyage and adventure."* The common law of England provides amply for an emergency, 8. See Oviatt v. Sage, 7 Conn. 95. 2. Hyde v. Stone, D Cow. 230; 9. Putnam v. Wise, 1 Hill, 234. Hurd v. Darlinnr, 14 Vt. 214. 1. Weld v, Oliver, 21 Pick. 559; 3. Barnes v. Bartlett. 15 Pick. 71; Hyde v. Stone, 7 Wend. 354; White Furloup: v. Bartlett. 21 Pick. 401. V. Osborn, 21 Wend. 72; Farrar v. See 1 Pars. Shipping. 93. 94. Beswick, 1 M. & W. 682. 4. Doddington v. Hallett. 1 Ves. Sen. 497; 1 Pars. Shipping, 91. 313 § 208 THE I,AW OF PERSONAL PROPERTY. [PART II. by allowing the majority in value of the ship to employ it at their pleasure, " upon any probable design," while taking care to secure the interest of the dissenting minority from being lost in an employment of which they disapprove. Where a dispute arises, the court of admiralty will, on application of the dis- senting owners, take a stipulation from the majority for the safe return of the vessel; and the dissenting owners, in such a case, bear no part of the expenses of the outfit and take no share in the profits of the enterprise, but the ship sails wholly at the risk and for the profit of the others.^ If legal proceedings for this purpose have not been seasonably taken before the voyage has commenced, the dissenting owners should expressly notify the others interested of their dissent, and carry the principle of this remedy as far as possible and with all expedition; for it has been decided that one part-owner cannot sue a co-owner at law for fraudulently and deceitfully sending the vessel to foreign parts, whereby she was lost ; nor in equity for the loss of the ship sent without his consent.^ If a part-owner expressly notify his dissent, chancery will not compel him to contribute to a loss.^ And though in a case of equal ownership, a court of admiralty may be reluctant to interfere, yet where the equal owners differ in the ship's management, the court will direct what shall be done.^ But a part-owner cannot allow repairs of permanent value to be made to a ship, and then, arresting the ship, avoid payment of his proportion of the expense on the plea that he dissents from the proposed employment.^ On the other hand, while it is said that the control of the majority of a ship extends to putting on board or removing ofiicers or masters at pleasure, it is by no means clear that this majority could remove a master who was likewise a part-owner; though, if dispossessed, the master could 5. The Apollo, 1 Hagg. 311; Abb. Strelly v. Winston, Skinn. 230. See Shipping, 100 et seq.; Bright. Fed. Horn v. Gilpin, Ambl. 255. Dig. 783 ; The Orleans v. Phoebus, 11 7. Horn v. Gilpin, supra. Pet. 175. 8. See Bright. Fed. Dig. 783; The 6. Carpenter v. Marshall, 1 Lev. Ocean. 1 Spr. 535. 29; Strelly v. Winson, 1 Vern. 297; 9. Davis v. Johnston, 4 Sim. 539. 314 CHAP. X.J PAET-OWNERSHIP IN SHIPS. § 209 only sue for damages, the amount of which might greatly depend upon the justification for his removal.' Where the other part-owners are absent, and no prohibition on their part has been interposed, it may fairly be presumed that the part-owner present can represent them in the supply or management of the vessel and bind them accordingly; though this privilege would not be carried, probably, to the extent of binding absent owners by acts unnecessary, unreasonable, and plainly injurious to their interests.^ § 209. Adjustment of Controversies; Lien on Each Other's Shares, etc. Whether the court of admiralty has power to compel an obsti- nate part-owner to sell his interest is not settled by the authori- ties. The rule of the maritime law in Continental Europe is that a sale may be judicially ordered, as a summary method of bringing quarrels to an end over the ship's emplo}Tnent ; and Judge Story and others contend for the lawful exercise by our courts of the same power.*' Yet some cases deny that any such authority exists.'* 1. See Pars. Shipping, 95-97; The The admiralty jurisdiction of the New Draper, 4 Rob. Adm. 287 ; Mont- United States courts has been re- gomery v. Wharton, 1 Dall. 49. Rule cently enlarged. Where interests are changed by Act of Congress, April 9', equal and the conflict decided, it 1872, c. 90. See U. S. Corap. St. 1916, seems that a sale may be ordered. §§ 8338-8342. The Annie H. Smith, 10 Ben. 110; 2. 1 Pars. Shipping, D7, criticising Coyne v. Caples, 7 Sawyer, 360. Abb. Shipping, 105; Stedman v. Fcid- 4. Ouston v. Hcbden, 1 Wils. 101; ler, 20 N. Y. 437; Brodie v. Howard, Davis v. Brig Seneca, Gilp. 10. S(^ 17 C. B. 109. The law of agency has Abb. Shipping. 104; Lewis v. Kinney, its own familiar limitations as to the 5 Dillon, 159. It is preferable, where scope of employment in which one justice permits of the arrangement, may be said to represent another. and interests are unequal, that the See Bowen v. Peters, 71 Me. 463. For majority owners who de.«ire to use the English doctrine see Frazer v. the vessel ho required to give security Cuthbertson, 6 Q. B. D. 93. to the dissenting owners, rather than 3. 3 Kent Com. 153, 154: Willings that a sale lie ordered. Lewis v. Kin- V. Blight, 2 Pet. Adm. 28S ; Story ney, 5 Dillon. 159; Coyne v. Caples, 7 Partn., § 438; 2 Pars. Shipping. 343. Sawyer. 360. 315 § 209 THE LAW OF PERSONAL PROPERTY. [PAKT 11,; Bj the technical rule of the common law, part-owners are not liable to each other for negligence whereby the common prop- erty is lost or injured; for the reason that each co-tenant may and ought to protect himself. But admiralty might fairly refuse to accept so narrow a doctrine.^ Much controversy has arisen over the question whether part- owners have, under some circumstances, a lien on each other's share of a ship, as partners in trade would have in the common merchandise. The result of the decisions would seem to be that no such lien exists where the ship belongs to persons as part- owners strictly, and not as partners.^ Yet if an adventure be undertaken by mutual consent, and one of the part-owners become a bankrupt after the commencement of the voyage, not having paid his full share of the outfit, the other partners have a right to deduct from his share of the profit whatever remains charged to him on account of the outfit, and pay over the balance only to the assignees.^ It is when we attempt to extend this right of deduction to a further or general indebtedness, that we are beset with doubts ; for not only may persons own a ship as partners rather than part-owners, but they may be part-owners of the ship and partners in the particular adventure ; or, if the enterprise be to sell vessel and cargo abroad, instead of freighting and charter- ing the vessel to carry a cargo and return, it might be said that the part-owners had made themselves partners in both ship and cargo, the total proceeds comprising the fruits of the voyage.^ It must be admitted that the cases are quite conflicting as to the general liens of part-owners, while there are doubtless instances in which, if a part-owner obtained the proceeds after making 5. See 1 Pars. Shipping. 107. 8. See Mumford v. Nicoll, 20 Johns, 6. 1 Pars. Shipping, 107, 108, and 611; Smith v. De Silva, Cowp. 469; n.; The Larch, 2 Curt. C. C. 427; Ex Hewitt v. Sturdevant, 4 B. Monr. 458; parte Young, 2 Ves. & B. 242; Mer- Doddington v. Hallett, 1 Ves. Sen. rill V. Bartlett, 6 Pick. 46. 497; Abb. SMpping. n. by Perkins. 7. Holderness v. Shackels, 8 B. & C. 111. 612; Abb. SMpping, 108; 1 Pars. Shipping, 107. 316 CHAP. X.] PART-OWNERSHIP IX SHIPS. § 210 advances for the voyage, it would bo unjust to make him pay over without allowing him to keep enough in his hands for his proper reimbursement.^ If a ship be owned by partners, no one, on the principles of partnership, can make a claim upon the others for the expenses he has properly incurred, except by having the partnership ac- counts completely made up and adjusted. But where all are part-owners, he may sue each of the others for his share of the expense, provided only the repairs were made or the outlay in- curred with the express or implied consent of his co-owner.' For a full adjustment of accounts the custom has been for part- owners to bring a bill in equity, just as members of a partner- ship would do; and in England courts of admiralty may now take jurisdiction for the same purpose; yet as legislation is necessary to give admiralty courts power over matters of account between part-owners, those of the United States need such jurisdiction.^ § 210. Miscellaneous Points as to Rights of Part-Owners Inter Se. Since, as we have seen, one part-owner, as such, has no power over the shares of the other part-o■^^'ners, it follows that he can no more mortgage or pledge the whole ship than sell it outright.' He cannot even insure the interests of his co-owners except as their authorized agent."* And, in fine, part-owTiers are held to honesty and fairness in their mutual dealings; and if one at- tempts to obtain advantages to himself by violating the rights of the others, and seeks to exercise undue control over the com- 9. See 1 Pars. Shipping, 115; Story Apollo. 1 Hag?. Adni. 306; 24 Vict.. Partn., §§ 441, 443; Bright. Fed. Dig. c. 10. § 8: Ward v. Thonipson, 22 783. How. 330. State jurisdiction in 1. Pars. Partn. 553-555, and cases equity of such matters of account cited; Patterson v. Chalmers, 7 B. has been asserted. Eiidsor v. Sirap- Monr. 595; Sawyer v. Freeman, 35 son, 12 Phila. 31)2. Me. 542: Gowan v. Foster, 3 B. & Ad. 3. Pars. Partn. 556; supra, § 207. 507. 4. Abb. Shipping. 107; Hooper v. 2. Moffat V. Farquharson. 2 Br. C. Lusby, 4 Cainpb. CR ; Peoria, &c., Tns. C. 338; 1 Pars. Shipping, 116; The Co. v. Hall. 12 Mich. 202. ?A1 § 211 THE LAW OF PERSONAL PROPERTY. [PART II. mon interests he will find that justice " beareth not the sword in vain." ^ § 211. Ship-Owners with Relation to Third Persons; Form of Actions, etc. Secondly, as to the interest of part-owners with relation to third persons or the public. The several part-owners of a ship make in law but one owner ; and in case an injury is done to the ship by a stranger, they ought to join in an action for damages ; though, as this rule is for the convenience of the wrong-doer, he ought to plead the non-joinder in abatement, in order to take advantage of it.^ Where, however, the action is for the freight of goods conveyed, or on any contract, the defendant may avail himself of the non-joinder by evidence at the trial.^ On the other hand, if an action is brought against the part- owners upon any contract relating to the ship, although the ac- tion should be brought against all jointly, yet the non- joinder of one or more can only be pleaded by the defendants in abatement." But in respect of torts committed by several, it is now settled that all, or a part only, of the wrong-doers may be sued ; and this holds good as to the wrongful acts of part-owners.^ Where persons are joined in a suit, who did not contract, or were not contracted with^ this misjoinder may be shown on the general issue; for it is a variance in substance.^ And, again, whenever an action which should have been brought against all is brought against some of the part-owners only, and they satisfy the judg- ment recovered, they can sue the others and make them con- 5. See Card v. Hope, 2 B. & C. 661; 8. Abb. 116; Robertson v. Smith, 18 1 Pars. Shipping, 124. Johns. 459 ; Bowen v. Stoddard, 10 6. See Sedgworth v. Overend, 7 T. Met. 375. R. 279 ; Abb. Shipping, 114 ; 1 Pars. 9. Mitchell v. Tarbutt, 5 T. R. 649 ; Shipping, 116 ; Wheelwright v. De- Low v. Mumford, 14 Johns. 426 ; Pat- pey'ster, 1 Johns. 472; Patten v. Gur- ten v. Gurney, 17 Mass. 182. ney, 17 Mass. 182. 1. Spalding v. Mure, 6 T. R. 363; 7. Abb. 115; 1 Pars. 117; Baker x. Tom v. Goodrich, 2 Johns. 213; Liv- Jewell, 6 Mass. 460. ingston v. Tremper, 11 Johns. 101. 318 CHAP. X.] PAET-OWNEKSHIP IN SHIPS. § 212 tribute.^ Some of the United States, in the exercise of a local jurisdiction, allow actions to be brought against a vessel by its name, if the cause of action did not arise elsewhere.^ § 212. Part-Owners with Relation to Third Persons; Liability for Supplies, etc. So much for matters of form. Concerning the liability of part- owners for necessary repairs or supplies, the general rule is that all are liable in solido, provided the repairs were actually made or the supplies furnished ; not only because the advantage enures to the ship, but in order that, wherever the ship goes, there may be a credit for what is needful."* In this respect the English law goes beyond that of Holland and some other countries, which only charges the several part-owners according to their respective interests.^ The limitation of our own rule is obvious, — namely, that the repairs or supplies were necessary and reasonable ; though the principle of necessity is not grudgingly applied in the courts.^ But they who were once owners are not liable after they have sold the vessel, although neither the master nor the person furnishing supplies knew of the previous sale ; for these are owners no longer.^ A distinction is sometimes made between a home port and a foreign port, with reference to the exercise by one of the power to bind all by contracts for repairs or supplies. The argument is, that a ship far from home might perish for want of aid which 2. 1 Pars. Shipping, 119. 7. Dame v. Hadlock, 4 Pick. 458. 3. See 1 Par-s. Shipping, 119f-121, Nor, semble, a registori'd owner hold- and n. ing as security. See Brightly Fed. 4. 7 T. R. 306; Wright v. Hunter, Dig. Suppl. 168. Part-o\vner.<;hip is 1 East, 20; Chapman v. Durant, 10 prima facie evidence of liability for Mass. 47; 1 Pars. Shipping, 100 et nwessary repairs or supplies. Bowen seg. V. Poter.s. 71 Me. 463. 469. One 5. Abb. Shipping, 117. should make known his dissent or 6. lb.; Webster v. Seekamp. 4 B. disapprol^ation in advance if he & Aid. 352; Merwin v. Shailer, 16 wishes to escape responsibility. Conn. 489; Meldon v. Campbell, 6 Brodie v. Howard, 17 C. B. 109. Ex. 886. 319 § 212 THE LAW OF PERSONAL PROPEKTY. [PART II. was delayed until the master or co-owner could consult the others interested in the vessel; while at home, all who will have to pay might and ought to be consulted. But the question is still open, whether all are liable when the expenses are incurred at the home port ; though it would be better for the part-owner giving the order to obtain specific authority from the other part- owners.^ Certainly, wherever the ship may be, the person who repairs or supplies a ship with what is totally and plainly unnec- essary has no claim upon those part-owners who did not order them.^ jN^or, we may add, would he have a lien on the ship under those circumstances ; this lien being, after all, the favorite method of securing a claimant's reimbursement for repairs and supplies, as we shall see hereafter.^ On the other hand, the part-owners who employ a vessel are presumed to do so for the benefit and at the expense of all part-owners who have expressed no dissent and do not seasonably repudiate the idea of such agency with reference to the creditor, and necessary repairs or supplies may be recovered accordingly; even, as some cases hold, though furnished at the home port.^ In a clear case where especial credit is given to one only of several part-owners, — meaning by this not only that the other part-owners were unknown, but that they were not designed to be charged, whether afterwards found out or not, — the other part-owners are not liable.^ But where the creditor charges the only owner he knows, or even where the party ordering the repairs or supplies gives his negotiable paper which the creditor accepts, this does not necessarily relieve the other part-owners from liability. A creditor who accepts a note from one indebted may be presumed, it is true, to have taken it in satisfaction of 8. Benson v. Thompson, 27 Me. 2. Bowen v. Peters, 71 Me. 463, and 470; Mitelieson v. Oliver, 5 E. & B. cases cited. But cf. Frazer v. Cuth- 419. bertson, 6 Q. B. D. 9^3. 9. 1 Pars. Shipping, 101; Stirling 3. Thomson v. Davenport, 9 B. & V. Phosphate Co., 35 Md. 128. C. 78; Miln v. Spinola, 4 Hill, 177; 1. lb. See The Lulu. 10 Wall. Seottin v. Stanley, 1 Dall. 129; 1 192. Pars. 102-10^. 320 CHAP. X.J PART-OWNERSHIP IN SHIPS. § 213 the debt; yet the presumption is one of fact only, and may be rebutted."^ And if the claimant for repairs or supplies receives a part of his claim from one or more of those liable in solido, they who thus pay part, even if it be more than their share, are still liable for the balance, unless they have protected themselves by a sufficient discharge of the claim.^ Credit given to the ship may bind the ship, though a part-owner be not personally bound. An exception to this rule is made in favor of insurers who have had the ownership of the vessel thrown upon them b^^ an abandonment. These, out of regard to tbeir misfortune, are considered liable not in solido, but proportionally; each insurer, in absence of a special promise, being liable to the extent of his own interest, and no farther.^ In case a ship is mortgaged, the party who has actual and visible possession and control of the vessel is commonly treated as owner for the time and purpose, so as to become liable for repairs and supplies ; and a like principle would be applied to charterers. The question who has the benefit of the repairs and supplies is important to an issue of this sort ; also the inquiry to whom and on whose credit they were given.'' § 213. Liability of Part-Owners to Others for One Another's Torts. The liability of part-owners for the torts of their servants or of one another depends upon the usual principles of agency; and while for a wrongful act arising in the scope of usual employ- ment, and extending to mere negligence in the performance, all the part-owners could be made to suffer as principals, it is not to 4. See Hudson v. Bradley, 2 Cliff Rliippintr. IIG; Fitch v. Sutton, 5 130; The Kimball, 3 Wall. 37. The Ea.st, 230. rule in Tvlaine and ]\Ia.«isachust^tts may 6. United In.-^. Co. v. Soott. 1 Johns, be otherwise. See 1 Pars. Shipping, lOfi. 104. See also Newell v. Nixon, 4 7. Miln v. Spinola, 4 Hill. 177: Wall. 572; First Nat. Bank of Ne- Hodgson v. Butti*, 3 Cr. 140; Pars, gauner v. Freeman, 47 Mich. 408. Partn. 571. But see Myers v. Willis, 5.1 Pars. Shipping. 102; Abb. 18 C. B. 886. 21 321 §214 THE LAW OF PERSONAL PROPERTY. [PART II. be supposed that a wanton and malicious injury deliberately and intentionally committed in or about the ship, outside the scope of employment, could render any liable for the consequences except those who participated personally in the act, or gave express orders to have it done,^ or, under the usual rules of agency, contributed to the injury.^ § 214. Managing Owner, or Ship's Husband. There is usually some person selected on behalf of the part- owners to act as their general managing agent, in the concerns of the ship or vessel. He is known as the " ship's husband " in the older books, and is generally one of the owners, for which reason our registration statutes usually speak of him as the managing owner. His powers and duties may be regulated by some special agreement ; but the appointment is frequently to be inferred from the exercise of duties appropriate to this office with the knowledge and consent of the owners; and usage determines his conduct in the main.^ He is to see that the ship is seaworthy; to have it properly equipped and manned for its voyages ; to take care of it in port ; to procure freights or charter-parties ; to keep the ship's papers; to make up the accounts, disburse and receive moneys; and otherwise to assume the active management of the common concerns. His acts for these purposes are to be deemed the acts of all the part-owners, who are liable for all contracts he makes for the ship's employment, unless the creditor dealt with him on 8. The Tribune, 3 Hagg. 114; The Woods, C. C. 377; Hill Man. Co. v. Dundee, 1 Hagg. 109; Turnpike Co. Providence Steamship Co., 113 Mass. V. Vanderbilt, 2 Comst. 479; Mc- 495. Mahon v. Davidson, 12 Minn. 357; 1. 1 Pars. Shipping, lOQ', 114; Abb. 1 Pars. Shipping, 106, 107; Somes v. Shipping, 106, 108; 3 Kent Com. 157. White, 65 Me. 542. The owner of a one-half interest who 9. So as to damages sustained is the master in possession, with a ■where both parties concerned in the right of possession by mutual agree- injury knew that the vessel was being ment as master, is not liable to re- used outside the scope of permitted moval. Rea v. The Eclipse, 135 U. S. employment. The R. F. Cahill, 9 599. Ben. 352. See Taylor v. Brigham, 3 322 CHAP. X.] PART-OWNEESIIIP IN SHIPS. § 214 his sole credit.^ And the ship's husband ought to obtain from each part-o\vner his share or contribution to the expense of outfit, repairs, and other necessaries. If he advances the proportional share of a part-owner, he maj sue him for it ; and if he be him- self a part-owner, he has a lien on the produce of the voyage for his disbursements ; though whether, as ship's husband, the law gives him a lien, is quite doubtful, however fairly he might have earned the right.^ But as a mere stranger, he may hold the pro- ceeds of a voyage, or of the ship itself, if sold, or its documents, by way of securing indemnity. The ship's husband cannot, with- out special authority by contract or clear usage, borrow money; nor give up the lien for freight; nor insure; nor purchase a cargo for the owners ; nor bring suits concerning the ship, though it is frequently found that subsequent ratification is as good as a previous authority ; nor delegate his ofiicc.'* Special customs regulate, in certain localities, the proper com- missions and allowances of a ship's husband ; and commercial usage, in general, will be found to depend somewhat upon the character of the adventure in which the ship is engaged, not only with regard to the powers and duties of the managing agent, but as concerns the part-owners of the ship and those employed in its navigation.^ 2. lb.; Reed v. WTiite, 5 Esp. 122; 5. As to whalinj!: voyages, for in- Muldon V. Whitlock, 1 Cow. 290; stance, see 1 Pars. Shipping, 30-34. Bowen v. Peters, 71 Me. 463; Sted- See Rennell v. Kimball, 5 Allen, 356. man v. Feidler, 20 N. Y. 437; Mitch- Custom, general and notorious, ia ell V. Chambers, 43 Mich. 150, and not disregarded with reference to a cases cited. The authority of a ship's husband; it may even author- managing owner extends to the con- izie him in certain classes of ca.ses to duct on shore of all that concerns the insure the vessel for the benefit of emplojTnent of the ship. Huntsman, the owners without their express di- The (1894), P. 214. rection. Adams v. Pittsburgh Ins. 3. Ex parte Young. 2 Ves. & B. Co., 95 Penn. St. 348. 242; Smith v. De Silva, Cowp. 469; The ma'^tor or managing owner 3 Kent Com. 155; Story Partn., § 443. may act for himself in obtaining bail 4. 1 Bell Com. (5th ed.) 504; 1 for the release of the vessel from Pars. Shipping, 110; 3 Kent Com. seizure under civil process; but not 157; Hewett v. Buck, 17 Me. 147. so as to bind the other owners per- 323 CHAPTER XI MEMBERS OF CORPORATIONS § 215. Corporate Organization; Its Advantages and Disadvan- tages. Personal property is held not only by joint and common own- ers, by partners, whether engaged in a general or a limited part- nership, by shipowners, and by members of joint-stock companies, sonally. Mitchell v. Chambers, 43 Mich. 150, criticising Barker v. High- ley, 15 C. B. N. S. 27 ; Gager v. Bab- cock, 48 N. Y. 154. If a master who is part-owner sells his interest, he cannot so transfer the command as necessarily to bind the other part- owners. Williams v. Ireland, 11 Phila. 273. Whether one part-owner, who is master, can be held liable to the other for neglecting to employ the vessel, see Hyer v. Caro. 17 Fla. 332. And see Helium v. Kneehdt, 17 Hun, 583. Master and owner may have a special contract upon various points, such as supplies, freight, &c. ; but this does not bind shippers who have no notice of the arrangement and rely upon the general rules. Oakland Cotton Co. V. Jennings, 46 Cal. 175. But cf. Frazer v. Cuthbertson, 6 Q. B. D. 93, as to supplies. " Language occurs, both in some text-books and in some decided cases, which seems to be based upon the assumption that a managing owner is an owner em- ployed by and on behalf of all his brother owners without exception. But there is no magic in the term managing owner which creates him plenipotentiary for those owners whose agent he is not in fact." Bowen, J., in Frazer v. Cuthbertson, 6 Q. B. D. 9'3, 98. See also remarks as to the question of supplies in Stedman v. Feidler, 20 N. Y. 437. The part-owner and manager has no authority to bind the estate of a deceased part-owner ior supplies. Stedman v. Feidler, ib. As to his right of recompense, see Williamson V. Hine (1891), 1 Ch. 390. As to bail or security taken by the other part-o"\vner from the manager, see The England, 12 P. D. 32; The Vivi- enne, 12 P. D. 185. See The Transfer No. 12, 221 Fed. 409, 137 C. C. A. 207 (master named in certificate) ; United States v. Ham- burg-Amerikan Gesellschaft, 212 Fed. 40; The Florida, 212 Fed. 334 (both, statutes limiting liability of ship- owners) ; Hinckley v. Wilson Lumber Co., 205 Fed. 974 (master as agent of the ship) ; The Loyal, 204 Fed. 930, 123 C. C. A. 252; K W. Steam- ship Co. V. Cochran, 191 Fed. 146, 111 C. C. A. 626; The Marie Palmer, 191 Fed. 79; The Sunbeam, 195 Fed. 468: The H. A. Baxter, 179" Fed. 1018, 102 C. C. A. 663. See further §§ 300-334, post, as to ships and vessels gener- ally; also § 471 as' to bills of lading. 324 CHAP. »3C[.] MEMBERS OF CORPOKATIONS. § 215 but also by members or shareholders in a private corporation. It is this last species of combinatiou, bringing together, as it does, the largest aggregate wealth with the smallest possible individual liability, to which our attention will now be directed. In the joint-stock corporation we find the perfection of an organized self- aggrandizement, with the most splendid opportunities for enter- prise and princely gains; yet, if not jealously watched, and checked in its every encroachment upon individual rights, the sure foe, besides, of honest competition in business, the tyrant of legislatures, and the canker of a sclf-governiug people. Corporations have their analogies in a State, and a corporate combination is usually designated as a sort of fictitious person. A corporation, as the name imports, is a body; it is a body, created by law, composed of individuals united under a common name, the members of which succeed each other; so that the body continues the same, notwithstanding the change going on in the individuals who compose it.* We may therefore consider that a corporation has certain advantages over the individual for busi- ness. Instead of one man's brain, wealth, and energy, it unites the brains, wealth, and energy of many. Instead of being con- fined to operations for the brief and uncertain period of a single human life, it is endowed with immortality; still ^vith this quali- fication, that the charter may have limited the term of its exist- ence to a certain period. Instead of being a moral agent, the cor- poration, as it is said, has no soul and can be guilty of no crime; though here it should be added that proceedings are now per- mitted in some States, in the nature of an indictment, where some gross wrong has been committed through the nogligonfe of its managing officers, who, nevertheless, are found in criminal prac- 1. Sep Dartmouth College v. Wood- distinct from the corporators who ward, 4 Wheat. 63G; 2 Kent Com. eompoao it. Morawetz on Corpora- 215; Anjr. & Ames Corp., § 1. While tioiis, § 1, contrasting 4 Wheat. .'51 S. a corporation is frequently defined in 630, and numerous other cases, with the courts as an "artificial being," a 1 Kyd on Corporations. 13; Railway "fictitious person," &c., it is not to Co. v. Allerton, 18 Wall. 233. be considered as a person or thing 325 § 216 THE LAW OF PERSONAL PROPERTY. [ PART II. tice very hard to reach. And while partnerships and joint-stock companies are ill-jointed and loose in their management, corpora- tions have compactness and a coercive authority over their members.^ § 216. Public and Private Corporations; Leading Classes. The leading divisions of corporations are those of public and private corporations. With public corporations, such as cities and towns, we have no present concern; but private corporations, and those especially which have a capital stock and are organized for business purposes, may properly occupy our attention in the present chapter. The line which divides public and private cor- porations is not always readily discernible ; but in general, while the legislature has an exclusive control over the former, and may modify or destroy at pleasure, the latter are created by a legislative act which, in connection with its acceptance by the parties inter- ested, is regarded as a compact that cannot, under the terms of our American Constitution, be afterwards modified or annulled. And, besides, a private corporation is distinguishable from munici- pal bodies in having a corporate fund from which to satisfy judg- ments, and by the irresponsibility of individual members for corporate debts beyond their amount of interest in the fund.'' There are ecclesiastical (or religious) and lay named among pri- vate corporations ; and, again, eleemosynary or charitable (like hospitals) and civil; which last term applies to both public and private corporations.'* On the whole, public corporations are gen- erally considered those which exist for public and political pur- poses only, although they Involve in a measure private interests; 2. See Ang. & Ames Corp., §§ 1-8, tions, see Phillips v. Mayor, &c., of passim; 1 Kyd, 71; 2 Bl. Com. 470- Baltimore, 110 Md. 431, 72 Atl. 902. 472; 2 Kent Com. 268; Morawetz See also Taylor Corp., § 450, which Corp., § 2. questions the Dartmouth College 3. Merchants' Bank v. Cook, 4 case; Munn v. Illinois, 94 U. S. 113. Pick. 414; Dartmouth College v. 4. 1 Ewell's Bl. Com. 470, 472; 2 Woodward, 4 Wheat. 636; Ang. & Kent Com. 268, 269; 1 Kyd, 26; Ang. Ames Corp., §§ 30-34, and notes. As & Ames Corp., §§ 36-39; Morawetz between private and public corpora- Corp., § 2. 326 CHAP. XI. J MEMBERS OF COKPOIiATIONS. § 217 while any corporation founded by private beneficence, though chartered by government and created for objects of general wel- fare, is a private and not a public corporation; to which latter class belong of course corporate associations (those demanding our present attention), whose main object is business and pecuni- ary profit.^ § 217. History and Modem Growth of Corporations. In England the law of corporations has been confined chiefly to municipal bodies and to a few chartered monopolies, like the East India Company; though more lately extended to joint-stock companies under the Companies Acts. But in the United States we have a large number of aggregate corporations, chartered not only for charitable and benevolent objects, but for manufacturing, mechanical, mining, and various other business and industrial pursuits. And that monopolies may not too greatly rule or favor- itism direct the legislature, the tendency in the various States is now to multiply opportunities for persons to organize for business purposes under general laws; instead of requiring them to pro- cure special charters of incorporation in every case, as formerly, a course which invites corruption of legislators and clogs healthy competition in trade.^ 5. Dartmouth College v. Wood- Mass. 3D4, 101 X. E. 1061; In re ward, 4 Wheat, 636; Cowen, J., in Cordova Shop, 216 Fed. 818 (N. Y. Thomas v. Dakin, 22 Wend. 109. 1914) (a corporation de facto) ; Ri- 6. 2 Kent Com. 272, and n.; Ang. alto Co. v. Miner, 183 Mo. App. 119, & AmeS, § 64; Brightlj^ Dig., "Cor- 166 S. W. 629 (evidence of corpora- porations." tion where created) ; International As to public corporations, see Util- & G. N. R. Co. v. Anderson Co.. 174 itics Com. v. Bethany Tel. Ass'n, 270 S. W. 305 (Tex. Civ. App.) ; John P. III. 183, 110 N. E. 334. And see Squire & Co. v. Portland, 106 Me. Barber v. Morgan, 89' Conn. 583, 94 234, 76 Atl. 679, 30 L. R. A. N. s. Atl. 984; The State v. 111. Cent. Ry. 576, n.; Groacen v. Buckley Co., 167 Co., 246 111. 188, 92 N. E. 814; In re Mich. 56^, 133 N". W. 538. Sw Apsey Humphrey Advertising Co., 177 Fed. v. Chattel Loan Co., 216 Mass. 364, 187, 101 C. C. A. 10 (two lines of 103 N. E. S99 (certain directors ap- business permitted) ; Attorney Gen- pointed as pul>Iic ofTicer.s) ; Smith v. eral v. Haverhill Gaslight Co., 215 Moore, 1D9 Fed. 689, 118 C. C. A. 327 § 217 THE LAW OF PERSONAL PROPERTY. [PAET n. Blackstone, on the authority of Plutarch, ascribes the invention of private corporations to Rome and Numa Pompilius; while others have thought, with more reason, that it was brought to Eome from the Greeks ; for the laws of Solon permitted private companies to institute themselves at pleasure, subject only to the public laws/ In imperial Eome, the corporation became regarded with much jealousy, and an express decree of the Senate or Emperor was essential to its establishment in all cases; whereby the number was doubtless lessened, while the odious monopoly feature became all the more apparent. The practice of incor- porating persons composing particular trades was known to both Roman and Greek law ; and in England, as long ago as the reign of Henry II., or even earlier, we find trade charters, older than Magna Charta itself. Privileges were thus conferred in Great Britain from the fourteenth century downward, upon the weavers, the mercers, the fishmongers, the vintners, the merchant-tailors, and others.^ Commercial corporations, too, were known to the Roman Law.^ And with the revival of commerce in Europe, cor- porations were found engaged in speculative adventure upon the seas. Banking companies have also claimed and obtained many chartered privileges ; not only in Genoa, Venice, and the other once opulent cities of Southern Europe, but in Amsterdam and London; and the example of the Bank of England, which has proved so valuable an ally to the public credit of Great Britain ever since its incorporation in 1694, led to the establishment of a similar chartered institution in this country ; but for a time only, since so gigantic a moneyed monopoly could not fail, however useful, to be unpopular in a country where national and State interests foster jealousy. Land companies were organized in the seventeenth century to enable the British Government to develop 127; People v. Mackey, 255 111. 144, 7. 1 Errell's Bl. Com. 468; 2 Kent 99 N. E. 370 ; Walker v. Taylor, 25& Com. 268, 269 ; Digest, 47, 22, 4 ; 111. 424, 96 N. E. 1055 (no real es- Taylor Corp., §§ 1-9. tate corporation allowed) ; Drucklier 8. lb.; Ang. & Ames, §§ 52, 53. V. Sam H. Harris, 155 App. Div, 83, 9. Ayliffe, 196. 140 N. Y. S. 60. 328 CHAP. XI.] MEMBERS OF CORPORATIONS. § 218 the vast resources of a newly discovered continent; and several of the early governments of our old thirteen American colonies were in the hands of proprietors whose charters had passed the great seal.^ In these and other instances we see that the modem policy of government has been to encourage certain business ven- tures of public importance requiring extraordinary capital or involving daring risks, by placing in the hands of favored indi- viduals a charter of incorporation which confers upon them exclusive privileges and correspondingly shuts out all competition. § 218. The Same Subject. Corporations have been multiplied of late years in this country to a remarkable extent ; and that, too, notwithstanding the abuses which are admitted to attend the exercise of exclusive privileges by powerful combinations. The absence of great individual wealth in a community tends to draw men closely together for the accomplishment of needful measures of mutual improvement; and, in order that trajfic might be opened as civilization went for- ward, new inducements to capitalists have been offered in various States or by our American Congress, with each new necessity, in the shape of liberal charters and acts of incorporation. The net- work of railways, canals, and turnpikes extending across this con- tinent attests lasting advantages which result from this policy; while the later movements of railway as well as industrial kings towards the practical consolidation of their companies, with a rivalry far more crushing than that formerly of small and single corporations, may well awaken alai-m lest this private monopoly system, if not ovenuastered and kept in restraint, prove, notwith- standing, the ruin of legitimate toil and honest enterprise in a popular government like ours. And yet, as experience still later reminds us, corporations may suffer likewise from oppressive and confusing legislation where States seek local advantage unjustly and the general public is heedless of the rights of investors.^ 1. See An?;. & Ames Corp., §§ 53, 2. See § 241a. post. 54; 2 Kent Com. 268-271. 829 § 218 THE LAW OF PERSONAL PEOPERTY. [ PART II. Banking and insurance business, which cannot safely be trans- acted without large capital, is in the United States almost entirely absorbed by corporations ; and at present we have a national banking system in full operation, not confined to a single institu- tion, but comprising a large number of banks chartered formally under the local laws.^ Under any American system the banks are likely to be localized to a great extent for their own business convenience. Corporations for manufacturing, mining and vari- ous industrial purposes are also very common in the United States. There have been occasional attempts to check the rapid increase of corporations; as in the New York Legislature of 1821, when a two-thirds vote was made requisite for the passage of each act of incorporation ; '* though nothing seems to be more effectual for suppressing the worst evils of a monopoly system than constitu- tional provisions, such as many States have already adopted, which interdict or restrain special grants of corporate powers, and per- mit under general laws all persons to obtain a corporate organiza- tion who desire the facility.^ Legislation sometimes throws special safeguards about its chartered banks ; and in many of the Western States we find constitutional restraints imposed upon the State ownership of stock and the loan of State credit in aid of a corporation ; while it is quite common and highly prudent for the 3. But see various important tions. See Hough's Constitutions, ehanffes towards nationalizing our passim. banking system during 1914-16 under 5. Morawetz Corp., §§ 6, 536; San Acts of Congress. Francisco v. Water Works, 48 Cal. 4. Warner v. Beers, 23 Wend. 103. 493 ; Wallace v. Loomis, 97 U. S. 146, See a constitutional provision of this See constitution of Maine provid- character in the fundamental law of ing that when a bill is presented for Michigan, so construed as to prohibit an act of incorporation, it shall be the legislature from passing a general continued until a succeeding legis- incorporation law without the assent lature assembles, &c. McClinch v. of two-thirds of each house. Green Sturgis, 72 Me. 288. The charter of V. Graves, 1 Dougl. 351. Constraints a private corporation organized under of one kind or another upon corpo- a general law is as inviolable as that rate legislation (some of them very of one organized under a special act. curious) prevail quite generally at People v. Keese, 27 Hun, 483. this day in the several State constitu- 330 CHAP. XI.] MEMBERS OF COKPOBATIONS. § 219 legislature in these days, when granting an act of incorporation, to limit the term of the grant, and reserve, moreover, the right on the part of the State to alter and amend whenever it shall be thought needful and proper. And, finally, there has been a dis- position in some parts of the United States to change essentially the privileges of private corporations, in various instances, by enlarging the personal liabilities of the members or directors.^ § 219. Hovy Private Corporations Are Created; Charter, Leg- islative Act, etc. How, then, is a private corporation to be created? We have borrowed from the Roman law, and from that policy of municipal corporations which the Roman conquerors long ago extended to Great Britain as well as to the continent of Europe, most of the legal principles relative to the powers and capacities of corpora- tions. No corporation could exist, at the civil law, unless con- firmed by sovereign power. The king of England, soon after the Norman Conquest, assumed the exclusive prerogative of granting exclusive privileges of this sort; and since the time of Bracton the rule has been settled that the king's assent should be given, either by act of Parliament (where the royal assent is a necessary ingredient) or by charter; and, as the prescriptive royal preroga- tives suffer with every new encroachment of Parliament, recourse in that country must now be usually had to special legislation. And special legislation being procured with difficulty and expense, joint-stock companies are favored/ Tn this conntry tlio subject 6. See Abbott's Dijrest, Corp. " Con- upon the will of the penernl stoekhold- stitutions;" 2 Kent Com. 272. and era. if not of the public, than hitherto, notes; Ang. & Ames, § 64. It is sub- The supervision of public service mitted by the writer that chan,c;os in eorpor.itions by State or national private corporate orgnnizations are commissions, even to the extent of desirable in the direction of enlarpinfj fixincr rates, is a recent innovation the personal liability of the directors. of lep^islative policy to bo noted in simplifyinpr and defininji their powers, this connection (19'17). and rendering them better subjected 7. Dig. 47, lib. 22, 23; 1 Kyd. Gl ; to scrutiny and more closely dependent Ang. A Ames, §§ 67, 68; supra, § 201. 331 § 219 THE LAW OF PERSONAL PROPERTY. [part II. is commonlj controlled by the State legislatures ; and the author- ity of this branch of each local government to create corporations with powers which are not repugnant to the constitution of the State, nor to the constitution and laws of the United States, is unquestionable.^ The federal government, too, though limited in its powers, is sovereign within its sphere of action; and, as an appropriate means of exercising any of the powers given by the Constitution to the government of the Union, it may lawfully create a corporation.^ It is sometimes said that corporations exist by prescription ; but this is nothing more than a presumption that any existing corporation was duly incorporated ; and the case must be rare in this country where a legislative act or charter could not be shown in positive proof. ^ 8. M'Culloeh v. State of Maryland, 4 Wheat. 421 ; Vineennes University V. Indiana, 14 How. 268 ; Stowe v. Flagge, 72 III. 401. The power to charter corporations belongs to each legislature, unless ex- pressly taken away by the constitu- tion ; and is incidental to the general power of making laws for the welfare of the State. Bank of Chenango v. Brown, 26 N. Y. 467 ; Morawetz Corp., § 4. A State legislature cannot in- corporate an association for purposes prohibited by the Constitution of the United States; as, e. p., to promote rebellion. Ponton v. McAdoo, 71 N. C. Ill; 6 Rich. 243. The old com- mon-law doctrine of the power of dele- gating the right to grant a private charter has little or no practical ap- plication to the constituted govern- ments. State and national, in this country. See Morawetz, §§ 7, 8, where the doctrine is stated with its limitations. 9. M'Cullough V. Maryland, 4 Wheat. 316. This is a leading case in point, affirming the right of Con- gress to charter a national bank; contrary to the constitutional inter- pretation which a political school in this nation had previously insisted upon. This doctrine has been reas- serted and extended in later years; as, for example, in sustaining our present national banking acts, and the acts incorporating the Pacific railroad companies. See also Federal Reserve Bank legislation (1914-15), § 241a, post. The power of granting corporate franchises is not given ex- pressly to Congress by our federal constitution ; but is incident to powers expressly granted. See Mora- wetz, § 5; Thompson v. Pacific R., 7 Wall. 566; Farmers^ &c.. Bank v. Bearing, 91 U. S. 27; Luxton v. No. River Bridge Co., 153 U. S. 525. 1. 2 Kent Com. 277; Dillingham v. Snow, 3 Mass. 276; Pawlet v. Clark, 9 Craneh, 292. Under the " interstate commerce " clause of our federal constitution the policy pursued towards private cor- porations takes largely a national direction of late years (1917). 332 CHAP. XI.] MEMBEKS OF CORPORATIONS. § 220 A corporation is the body or institution itself; while incor- poration is the act by which that institution is created. A charter is properly a sovereign grant; but in this country the word is used ^s synonymous rather with the legislative act of incorpora- tion.^ And a State legislature may pass a general law which authorizes any persons to meet together and form corporations of a certain kind ; or it may grant a special act of incorporation to certain individuals and their successors only. It is the policy of some States, indeed, to discourage special acts of incorporation altogether; and constitutional prohibitions may be found to that effect, which nevertheless permit the passage of general laws authorizing the formation of an indefinite number of corpora- tions, in order that corporate privileges may be as free to the public as the right to trade singly or in partnerships.'' Our State legislatures, in the absence of express constitutional restrictions, exercise large powers in the premises ; for they may prescribe the functions and duties of private corporations, control their action, and impose restraints upon them ; subject to the qualifications that the obligations of the contract implied in the charter cannot after- wards be impaired, nor the essential franchise taken without due compensation.* § 220. The Same Subject; Acceptance of a Charter by the Incorporators; Conditions Precedent, etc. A charter is inoperative until it is accepted by the persons intended to be incorporated ; and the grant may be withdrawn meantime; but after it has once been sufficiently accepted, the legal duties and liabilities attach, according to the terms of the charter, and cannot be disavowed at the pleasure either of the State or the individuals concerned. No precise form of accept- 2. Aug. & Ames. § 5; Bouvier Diet. 4. Thorpe v. Rutland, &c., R. R. "Corporations," &c. Co., 27 Vt. 140; Madison, &c.. R. R. 3. Brightly Fed. Dig. 182; Falconer Co. v. Whiteneck, S Ind. 217; Gorman ▼. Campbell, 2 McLean, 195. See v. Pacific R. R. Co., 26 Mo. 441. supra, § 218, n. 333 § 220a THE LAW OF PERSONAL PKOPEKTY. [PART II. ance is necessary ; for while any man may refuse a grant, yet he may bo bound by collateral acts which imply an acceptance on his part; and hence we find that where the persons named in a charter have acted under it, held meetings, adopted by-laws, and elecited officers in conformity with its terms, they are considered to have accepted it, although acceptance should usually be by a majority vote of the persons incorporated.^ A charter must be accepted on the terms offered ; not conditionally, nor partially, nor for another time than stated therein. A substantial compliance with all the forms prescribed by a general statute authorizing incorporation is a prerequisite, and a sufficient one, to corporate existence.^ The same principles of law will apply to the accept- ance by an existing corporation of a new or amended charter.^ Private corporations are almost always organized in these days, under general acts ; and for such organization a substantial com- pliance with all the terms imposed by the act as conditions precedent is the essential prerequisite.^ § 220a. De Facto Corporations. AYhere some defect appears in the corporate papers, but the corporation does business as such, there may result what is known as a de facto corporation having corporate rights and privileges for most purposes and subject only to attack by the State itself. The following are requisites of a de facto corporation: First, a statute authorizing the organization of such a corporation ; ^ sec- 5. 1 T. R. 575; 1 Kyd, 63; Ang. & 8. Morawetz, § 17, and cases cited; Ames, §§ 81-83; Bangor R. R. Co. v. Utley v. Union Tool Co., 11 Gray, Smith, 47 Me. 34; Abb. Dig. Corp. 139; People v. Selfridge, 52 Cal. 331; "Acceptance;" Russell v. McLellan, 55 Barb. 45; Doyle v. Mizner, 42 14 Pick. 63; Zabriskie v. Cleveland Mich. 332; Hurt v. Salisbury, 55 Mo. R. R. Co., 23 How. 39'1 ; Morawetz, 310. So, too, there may be conditions §§ 12-16, and cases cited. precedent under a special charter, 6. Green v. Seymour, 3 Sandf. Ch. whose obser\'ance is essential in the 285; Harris V. McGregor, 29 Cnl. 124. same sense. Morawetz, § 18. See Eastern Plank Road Co. v. 9. Imperial Bldg. Co. v. Board of Vaughan, 14 N". Y. 546. Trade, 238 111. 100, 87 N. E. 167. 7. Commonwealth v, Cullen, 13 Penn. St. 133. 334 CHAP. XI.] MEMBERS OF COEPOKATIONS. § 222 ond, an apparent organization ; ^ third, action as a corporation ; - fourth, good faith in the incorporators.^ Where one sells goods to a de facto corporation believing it to be a corporation he cannot hold the incorporators personally ; ^ while if the seller has been dealing on a partnership basis there is a personal liability.^ So, where one deals with a de facto corporation, not knowing whether it is a corporation or a partner- ship, he cannot recover against the directors as partners.^ Where the incorporators make some error in the execution of the corporate papers equity has no jurisdiction to reform them, as the incorporation is by grant of the sovereign power and equity cannot interfere.^ § 221. Language of Legislative Acts of Incorporation. To create a corporation, such words as " found," " erect," " establish," or " incorporate " are commonly used ; but they are not essential ; the intention of the legislature in enacting a law of this kind being the main thing which the courts will regard.^ § 222. Constituent Elements of a Private Corporation. There are certain constituent elements in every private cor- poration. A bod}^ corporate is usually made up of natural per- sons in their n'atural capacity. Every corporation should have a name, — or, as Coke called it, a name of baptism, — by which it 1. Tulare Irr. District v. Shepard, 6. Newcomb-Endicott Co. v. Fee, 185 U. S. 13, 22 Sup. Ct. 531, 46 L. (Mich.) 133 N, W. 540. Ed. 773. 7. Casper v. Kalt-Zimmers Mfg. 2. Tulare Irr. District v. Shepard, Co., 159 Wis. 517, 149' N. W. 754. s^u^ra. 8. Phillips v. Pearce, 5 B. & C. 423; 3. Gilkey v. How, 105 Wis. 41, 81 Lawrence v. Fletcher, 8 Met. 153; 1 N. W. 673, 50 L. R. A. 324. Kyd. 63 ; Ang. & Ames, §§ 76, 77 ; See article on de facto corpora- Morawetz, § 9; Liverpool Ins. Co. v. tions in 25 Harvard Law Review, 623. Massachusetts, 10 Wall. 566. 4. Snider's Sons Co. v. Troy, 91 A corporation cannot enter into a Ala. 224, 8 So. 658. partnership without legislative per- 5. Guckert v. Hacke, 159 Pa. St. mission. Post & M'Cord v. City of 303, 28 Atl. 249. New York. 86 Misc. Rep. 300, 148 N. Y. S. 568. 335 § 222 THE LAW OF PERSONAL PROPERTY. [PABT II. may be known as grantor and grantee, perform all legal acts, hold and transmit property, and sue and be sued; and here we notice that the name of this legally created being expresses usually the objects for which it was founded, and that it is sufficiently named whenever the identifying words are used ; but a natural person's name is short, and cannot suffer verbal changes without losing the means of identification altogether.^ And, since corporate powers are only locally exercised, every corporation should be constituted as of some particular place ; and the principal office for the transaction of business usually determines the local resi- dence of this ideal inhabitant.^ The powers and capacities which are essential to all corpora- tions, and implied in every act of incorporation, are often enumerated as follows: (1) to have perpetual succession, admit- ting new members to fill old vacancies; (2) to sue and be sued, implead and be impleaded; grant and receive by its corporate name, and do all other acts as natural persons may; (3) to pur- chase and hold property, whether real or personal, for the benefit of its members and their successors; (4) to have a common seal; (5) to remove members. But, as Mr. Kyd says, some of these powers are to be taken in many instances with much modification and restriction; for the essence of a corporation consists only of a capacity to have perpetual succession, under a special denomina- tion and an artificial form, and to take and grant property, con- tract obligations, and sue and be sued by its corporate name, and to receive and enjoy, in common, grants of privileges and immuni- ties.^ The incidental powers and capacities of every corporation are subject moreover to such limitations as may be prescribed by the sovereignty which creates it ; nor has any corporation other powers than such as are specifically granted, or are within the letter and spirit of the act of incorporation.^ 9. Ang. & Ames, §§ 95-102; 2 Kent Co. v. Wheeler, 1 Black, 286; Potter Com. 292; Forbes' v. Marshall, 11 Ex. v. Bank of Ithaca, 7 Hill. 530. 166; Sutton v. Cole, 3 Pick. 232. 2. 1 Kyd. 13, 69. 70: 2 Kent Com. 1. Bank of U. S. v. Devaux, 5 Or. 278. 84 ; Ang. & Ames, § 107 ; Ohio R. R. 3. Ang. & Ames. § 111 : Dublin v. 336 CHAP. XI.] MEMBEKS OF COKPORATIONS. § 223 § 223. Internal Organization and Management; Directors, Membership, etc. The internal management of a private corporation is primarily vested in the members ; but it is more immediately in the hands of the president and directors, or a sort of managing board with a chief executive at the head. In joint-stock corporations, — those which consist in combina- tions of capital, usually for some business purposes, — the rights of membership are incident to the ownership of stock. As Shaw, C J., has observed, in all bridge, railroad, and turnpike corpora- tions, in all banks, insurance corporations, manufacturing cor- porations, and, generally, in corporations having a capital stock and looking to profits, membership is constituted by a transfer of shares, according to the by-laws, without any election on the part of the corporation itself."* This right to elect officers and other- wise control the corporate interests may, however, be modified by the express terms of the charter or a general statute applicable to the company.^ And members of private corporations sometimes make a by-law, creating a select body to whom they delegate the power of electing officers and members.^ The charter or statute Attorney-General, 3 Bligh, N. s. 395; 718; Jackson v. Hooper, 76 N. J. E. Beaty v. Knowler, 4 Pet. 152; Bright- 532, 75 Atl. 568, 27 L. R. A. n. s. ly Fed. Dig. 182, 183. 658, n.; Torrey v. Toledo Portland See Water Commissioners v. Man- Cement Co., 158 Mich. 345, 122 N. W. Chester, 89 Conn. 671, 96 Atl. 182 614 (promoters) ; William Gilligan (acceptance of charter) ; Jvj Press v. Co. v. Casey, 205 Mass. 26, 91 N. E. McKechnie, 88 Wash. 643, 153 Pac. 124 (corporation known by different 1067 (estoppel to deny corporate ex- names). istence) ; Gregg v. Little Rock Cham- 4. Poor v. Sears, 22 Pick. 122. And ber of Commerce, 120 Ark. 656, 179 see Ang. & Ames, § 113; Gilbert v. S. W. 658 (implied power); Ameri- Manchester Iron Co., 11 Wend. 627; can Ball Bearing Co. v. Adams, 222 Downing v. Potts, 23 N. J. L. 66. Fed. 967 (N. D. 1915 D. C.) (valid See chapter IX.. infra, on Stocks and organization) ; Wilder Co. v. Refining Shares. Co., 236 U. S. 165, 35 S. Ct. 398; 5. Ang. & Ames. §§ 115-118; Com- Woodlawn Ass'n v. Anderson, 187 Til. monwealth v. Gill, 4 Whart. 228. App. 507; Webster v. Susquehanna 6. 12 Mod. 225; Ex parte Wil- Co., 112 Md. 416. 76 Atl. 254 ; Green- cocks, 7 Cow. 407. ville V. Green, 9^ S. C. 573, 77 S. E. 22 337 § 224 THE LAW OF PERSONAL PROPERTY. [PART II. is usually explicit as to the times and manner of election and the qualification of voters; otherwise the corporation may regulate such matters for itself. At the proper time and place of meeting, every candidate is proposed (though nominating committees fre- quently regulate the presentation of lists to the members at large), and those having a majority of the votes cast, the assembly being sufficiently large, are the officers elected; no more officers being chosen than such as suffice to complete the proper number ; and a plurality or any other system being optional in preference to a majority vote, if regularly and properly adopted by the members at large. ^ For we are to remember that members of a private corporation are not unlike citizens and voters under a constitu- tional form of government. Where the election was conducted in good faith, the officers appointed are usually considered to have been properly appointed, in the absence of positive formalities which were neglected ; and persons acting publicly as officers of a corporation are always presimied to be rightfully in office. When questions of this sort are raised, the language of the charter or stat- ute will usually be resorted to as determining whether the irreg- ular election was void or only voidable; and where a person ha^ been de facto elected to a corporate office, and has accepted and acted in the office, the validity of his election and his title to the office in the latter instance can only be tried in proceedings on a quo warranto information.^ § 224. The Same Subject; Powers of Directors, Corporate Officers, etc. The management of private corporations is usually vested in certain officers and boards; the body of the members having no voice except in their election.^ The board of directors, as it is 7. 2 Kent Com. 294; Ang. & Ames, ridge, 12 Wheat. 79; Ang. & Ames, passim, §§ 118-123 ; Morawetz, §§ 236, §§ 137-141 ; Regina, v. Mayor of 382. Chester, 34 E. L. A Eq. 59. 8. Waite v. Windham, &c.. Mining 9. Bank v. Dandridge, 12 Wheat. Co., 36 Vt. 18; Frost v. Frosthurg 113: Ridgway v. Farmers' Bank, 12 Coal Co., 24 How. 278 ; Bank V. Dand- S. & R. 256; Morawetz, § 382. A 338 CHAP. XI.] MEMBERS OF CORPORATIONS. § 224 called, constituting a sort of executive committee, though with more than purely executive functions, represents the corporation, and in general may act as such, and, unless specially restricted, exercise all the corporate powers.^ It would be manifestly incon- venient for a large body of members to meet and transact the multifarious details of corporate business; hence, the custom, in the present day universal, of choosing a special board or body of directors, as the representatives, agents, or managers of the cor- poration at large. There was formerly great stress laid upon the use of the corporate seal, as indispensable to the validity of the business contracts of a corporation ; but the modern rule is, that the acts of the board of directors are as binding upon the corpo- ration when evidenced by a legal vote; and, in the absence of a charter, statute, or by-laws expressly providing otherwise, a ma- jority of the directors of a joint-stock corporation, organized for transacting some kind of business, constitute a quorum ; and a majority of the (piorum have authority to decide any question within the scope of the coi-porate powers.^ The board of directors being, in effect, but agents of the mem- bers at large; and every corporation having the implied right to choose its own general and special agents; the directors can only majority of stockholdors are incom- respondingly revoke it. Taylor, petent to divest the directors of the § 219. fundamental management of con- 1. Burrill v. Nahant Bank, 2 Met. cems; and manifestly the body of 163; Whitwell v. Warner, 20 Vt. shareholders is incapable of manag- 425; Ang. & Ames, §§ 22'8-231, 276- ing the corporate business cfTiciently. 283. Taylor, § 180. Tlie " constitution " 2. Cowp. 248 ; Sargent v. Webster, or fundamental charter is not to be 13 Met. 497; Fleckner v. U. S. Bank, altered except as that instrument 8 Wheat. 357; Co. Lit. 66 b; Rajidall provides. v. Van Vechten, 13 Johns. 65 ; Mora- Some corporations are so organized wetz, §§ 167, 247. The directors act that the fundamental law leaves cor- as a board and not singly; nor should porate power discretionary with the formalities prescribed by the charter shareholders themselves to a great or constitution be disregarded, extent. In such case the shareholders whether as to calling meetings or in may by resolution or by-law delegate other respects. Morawetz, § 247, and authority to their directors and cor- cases cited. 339 § 224 THE LAW OF PERSONAL PEOPEKTY. [pART II. act for it and bipd it within such limits and in such modes as the charter, statute, by-laws, or some acts of the members authorize.^ jN^o general rule can be laid down in this respect, for their powers will ditfer with the rules and usage of the business ; and we must refer to the laws of agency to determine the principles on which the corporation will be bound by their acts.'* In chartered bank- ing and insurance companies, and joint-stock business corporations generally, the exclusive agency is generally put into the hands of the directors by the incorporating act; so that while the stock- holders elect their board of managers, the managers themselves derive their authority from the charter, and are agents, not of the stockholders, but of the corporation; in which case they exercise large discretionary powers, and the body at large cannot control their movements, except in the matter of election, nor compel them to do contrary to their own judgment.^ And the usages of well-established corporations may guide where the fundamental law fails of guidance.^ The directors may commit authority to others among themselves; and here, as in the State, some executive officer is requisite for ordinary routine business, — such as a presi- dent; while other officers are employed, such as secretaries, treas- urers, and cashiers of banks ; all of whom are usually designated as officers with powers defined in the act of incorporation or the by-laws; while their selection and the general employment of clerks, messengers, operatives, attorneys, and others, with the length of service and rates of compensation, are all matters left to a great extent under the control of the directors themselves.'' A board of directors, authorized to conduct the aifairs of a bank, may empower the president, or the president and cashier, to bor- 3. Salem Bank v. Gloucester Bank, G. See Taylor, § 195. 17 Mass. 29; Ang. & Ames, § 231; 7. Union Bank v. Ridgely, 1 Har. Bargate v. Shortridge, 5 H. L. Cas. & G. 324; Dedliam Bank v. Chicker- 297; Morawetz, §§ 238, 242, 248. ing, 3 Pick. 335; Ang. & Ames, §285; 4. P>. Waite v. Windham, &.C., Mining Co., 5. Bank v. Dandridge, 12 Wheat. 37 Vt. 608; Morawetz, § 248; Taylor, 113; Royalton v. Koyalton, Ac, Co., §§ 233-246. 14 Vt. 311: CommonAvealth v. St. Mary's Church, 6 S. & R. 508. 340 CHAP. XI.] MEMBERS OF CORPORATIONS. § 225 row monej, indorse its notes, or obtain a discount for the use of the bank.^ § 225. The Same Subject. But the authority to borrow money requires to be carefully guarded ; and where a corporation is organized for manufacturing and other more general purposes, the directors are not presumed to have financial powers to del^ate or exercise so extensive.^ And under all circumstances the purposes of the incorporation must be regarded; nor are boards of directors empowered to go beyond their charter.^ They cannot alienate, pledge, or mortgage as indi- viduals property essential for the corporate purposes, misappro- priate moneys, assign over the corporation effects, speculate, make donations to themselves or their friends, or in any way deal with the funds entrusted to their keeping other than as honest and pru- dent men who feel bound to follow the terms of their authority and have no adverse or sinister ends to subserve.^ In England the rule in this and other respects is a strict one; and even com- pensation for their services has been refused, unless rendered un- der some express contract or a vote of the company; though the American rule in this respect is more liberal. The officers and directors of a corporation are often regarded as trustees for the stockholders, rather than agents ; and in securing to themselves an advantage not common to all, they certainly commit a plain breach of official duty.'' Directors cannot as a rule wind up the 8. Fleclcner v. U. S. Bank, 8 Wheat. Beav. 495; Butts v. Wood, 37 N. Y. 338; Merrick v. Bank of Metropolis, 317; Abb. Dig. Corp. 280. 284; But- 8 Gill, 59; Olcott v. Tioga R., 27 lor v. Cornwall Tron Co., 22 Conn. X. Y. 546. 335; Koehler v. Black River, &c., Co., 9. See Burmester v. Norris, 6 Ex. 2 Black, 715; Iloyle v. Plattsbnrgh '796. R., 54 K Y. 314; Morawetz, §§ 243- 1. Rollins V. Clay, 33 Maine, 132; 245. Gibson v. Goldthwaite, 7 Ala. 281; 3. lb. Directors ought not to rep- Redmond V. Dickerson, 1 Stockt. 507; resent the company where they have Morawetz, § 242; Pickering v. Rte- conflicting private interests to siib- phenson, L. R. 14 Eq. 322; Taylor, serve. Morawetz, § 245; Hoyle v. P. § 19^. & M. R. R. Co., 54 N. Y. 314: Penn- 2. York Railway Co. v. Hudson, 16 sylvania R.'s Appeal, 80 Pcnn. St. 341 § 226 TUB LAW OF PERSONAL riiOPERTY. [PAKT II. concern, nor dispose of the assets as tantamount to such procedure.'* Nor does their authority to manage the stock, property, and affairs of the corporation, give them authority to make important changes in the scheme and nature of the corporate enterprise, or to apply to the legislature for enlarging the corporate powers.^ Nor to exclude members from a reasonable right to inspect their books ; since they would thus be unduly shielded from responsibility for their official conduct.^ And yet some of these powers might have been conferred expressly upon the board of directors, by charter or otherwise, and in consequence would be rightfully exercised. By inference from a charter for business purposes, directors have the honest discretion of declaring dividends or not.^ § 226. The Same Subject. Persons dealing with a corporation must take notice of what- ever is contained in the law under which it was organized ; for a 265; Warden v. Railroad, 103 U. S. 651. A director ought not to pur- chase assets of the corporation. Mc- Cowell V. Arkansas Co., 38 Ark. 17. As to a director's personal liability for wrongfully appropriating the cor- porate funds, see In re Oak Pits Ck)l- liery Co., 21 Oh. D. 322. It is a breach of trust for directors to sell their own shares to the corporation. Shattuck V. Oakland Co., 58 Cal. 550. 4. Ang. & Ames, § 280; Morawetz, § 240; Rollins v. Clay, 33 Me. 132; Bank Com'rs v. Bank of Brest, 1 Harring. Oh. 106. But directors, by virtue of an authority to pay debts, may convey assets in trust for the benefit of creditors, as some cases hold. 52 Ind. 473; 13 Met. 497; Morawetz, § 240. And where the chiarter or good usage justifies such action, directors may borrow money for the corporation, and even secure the indebtedness by a pledge of the corporate personal property. Salt- marsh v. Spaulding, 147 Mass. 224, 17 N. E. 316; Taylor, § 225. But directors have no inherent power to increase or decrease the capital stock. Railway Co. v. AUerton, 18 Wall. 233. Nor to transfer property essential to continuing the corporate business'. Burke v. Smith, 16 Wall. 390. See Taylor, §§ 227-230. 5. Marlborough Co. v. Smith, 2 Conn. 579; Morawetz, § 239; Taylor, § 221; Railway Co. v. Allerton, 18 Wall. 233. 6. People V. Throop, 12 Wend. 183. Right of stockholder to examine cor- porate books. Vol. 32, N. Y. Rpte., Bender ed., note, p. 898; Vol. 34, N. Y. Rpts., Bender ed., note, p. 949. 7. Morawetz, § 348 ; Mills v. Buenos Ayres Ry., L. R. 5 Oh. App. 621; Smith v. Prattville Man. Co., 20 Ala. 503; Pratt v. Pratt, 33 Conn. 446. See post. § 510. What is surplus and reserve fund. Vol. 32, N. Y. Rpts., Bender ed.. note. p. 1028. 342 CHAP. XI.] MEMBERS OF CORPORATIONS. § 227 corporation cannot vary from the law of its creation. Hence, if the charter or act of incorporation prescribes the mode in which the officers must act, that mode must be followed in order to ren- der their acts obligatory on the corporation.^ But where formali- ties have long been disregarded by the directors, and yet they have acted within the scope of their general authority, the corpo- ration will not be permitted in law or equity to set up the negli- gence of its own agents to the prejudice of third parties.^ And while directors act as the majority of a quorum, or by such other requisite number as the charter may prescribe, the record of their acts is not in general necessary to the validity of the acts, since requirements concerning the corporation records are usually di- rectory and nothing more.^ § 227. The Same Subject. As to the liability of a corporation officer to the corporation for all damages occasioned by a violation of his duties and obligations, the principle is much the same as in an ordinary agency. For all damages occasioned by the violation of his official duties, the offi- cer of a corporation is responsible to his principal ; and this prin- cipal is the corporation, and not individual stockliolders. Hence, proceedings brought to enforce the responsibilities of directors must usually be conducted in the name of the corporation.^ But equity, in furtherance of natural justice, and for the reason that there can be no wrong without a remedy, has permitted stock- holders, as the real parties in interest, to file a bill in their own names where there is such collusion and fraud in the control of 8 Ang. & Ames, § 291 ; Taylor, The formalities of a meeting of the § 201; Williains v. Chester R. R. Co., directors s>eem, however, to be rather 5 E. L. & Eq. 503. See Head v. strictly insisted upon in England. Providence Ins. Co., 2 Cr. 16G. See D'Arcy v. Tamar R. R. Co., L. R. 9. Bargate v. Shortridge, 5 H. L. 2 Ex. 158; Waite v. Windham, &c., Cas. 297 ; Zabrislcie v. Cleveland R. R. Mining Co., 37 Vt. 608. Co., 23 How. 381, 398; Ang. & Ames, 2. Ang. & Ames, § 312; Brown v. § 291 ; Morawetz, § 246 ; Pennsylvania Vandyke, 4 Halst. 795; Abbott v. R.'s Appeal, 80 Penn. St. 265. Merriam, 8 Cush. 588. 1. Hutchins v. Byrnes, 9^ Gray, 370. 343 § 227 THE LAW OF PERSONAL PEOPERTY. [PART II. the corporation that prosecution is obstructed.'^ Of course, the directors of a corporation are not to be presumed infallible; and for losses suffered through mere error of judgment on their part, — there being neither culpable negligence nor fraud apparent, — they are not made liable, more than the agents of natural persons would bo under similar circumstances ; and this principle is fre- quently applied where subordinates are prudently selected by them who prove unworthy of trust and bring mischief to the corporation.'* Directors, on the other hand, who sanction a breach of tinist and aid in embezzlement are certainly responsible for their own misconduct.^ And a director renders himself liable, as it is held, who has knowingly assented to a dividend amounting to more than the profits, or to making false reports to the share- holders; for this is a violation of duty both towards the stock- holders and the public.^ In fine, the powers, rights, duties, and obligations of directors are, when uncontrolled by the act of incor- poration or the by-laws of the corporation, to be determined on the principles of the law of agency; and in adjusting controver- sies of this sort, as between themselves and the coi-poration at large, we must examine in every case the act of incorporation and the by-laws; since the general power of making by-laws may re- main in the stockholders at large, who are then at liberty to cir- cumscribe the power of the directors as they may deem fit.'' 3. KoeMer v. Black River Co., 2 The implied powers of the president Black. 715; Turquand v. IVIarshall, of a corporation depend upon the L. R. 6 Eq. 112. nature of the company's business and 4. See Scott v. Depeyster, 1 Edw. the measure of authority delegated Ch. 513 ; Williams v. Gregg, 2 Strobh. to him by the board of directors. Eq. 316; Spering's Appeal, 71 Penn. There are some recent cases which, St. 11; Dunn v. Keyle, 14 Bush, 134. admitting the difficulty of defining 5. Attorney-General v. Leicester, 7 precisely the nature and extent of Beav. 176. these powers, deny to the president 6. Hill V. Frazier, 22 Penn. St. 320 ; the general right to dispose of cor- Flitcroft's Case, 21 Ch. D. 322. porate property at his personal dis- 7. See Ang. & Ames, §§ 299, 315 ; cretion, or to be othenvise regarded, Pratt V. Hudson River R. R. Co., 21 save for a delegated authority as ex- N. Y. 305; Hotehin v. Kent, 8 Mich. ecutive, as more than the presiding 526. director at the board. See Titus' v. 344 CHAP. XI.] MEMBERS OF COEPORATIONS. § 228 § 228. By-laws of a Private Corporation. From what has already been said, the reader will gather that the by-laws of a corporation are of considerable influence in shap- ing the distribution of corporate powers and determining the methods of its organization and management. The power of mak- ing by-laws, or, as they are called, private statutes, for its gov- ernment and support, is an incident to every corporation, included in the very act of incorporation. " For," says Blackstone, " as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic." ^ Yet this power is not generally left to implica- tion, but will be almost always found expressly conferred by the act of incorporation ; that being a sort of '' private constitution," to which the by-laws of the corporation, like the legislative acts of Cairo R. R., 37 K J. L. 98, 102; Chicago R. v. James, 22 Wis. 198; Walworth Bank v. Farmers' Trust Co., 14 Wis. 325. Yet the peculiar business, charter, usage, &c., may re- lax such a rule. See Smith v. Smith, 62 111. 493; Morawetz, §§ 251, 252. The peculiar functions and exten- sive authority of the cashier or ex- ecutive officer of a bank are discussed at length in Wild v. Passamaquoddy Bank, 3 Mason, 506, per Mr. Justice Story ; Merchants' Bank v. State Bank, 10 Wall. 604, and other cases cited; Morawetz, §§ 253, 254. See further In re Wm. S. Butler, 207 Fed. 705, 125 C. C. A. 223; Drneklieb v. Harris, 209^ N. Y. 211, 102 K E. 579; Penn. Ry. Co. v. Minis, 120 Md. 461, 496, 87 Atl. 1062; Townsley v. Niagara Ins. Co., 160 App. Div. 177, 145 N. Y. S. 20T) (em- ployment of manager) ; Metropolitan Ry. Co. V. Chicago, 261 III. 624. 104 N. E. 165; Gk'orgia Granite R. R. Co. V. Miller, 144 Ga. 665, 87 S. E. 897 (scope of corporate powers) ; Mutter of Ringler & Co., 204 N. Y. 30, 97 N. E. 593 (trustees improperly elected) ; Jacobus v. Mantello, 211 N. Y. 154, 105 N. E. 210. Corporate officers are personally lia- ble for their torts or frauds regard- less of corporate liability. Jacobs v. Williams, 85 Conn. 215, 82 Atl. 202; Kosher v. Stuart, 64 Ore. 123, 121 Pac. 901. And see Moore v. Atcliison, &c., Ry. Co., 26 Okla. 682, 110 Pac. 1059"; Washington Bank v. Central Bank, 168 S. W. 456 (Tex. Civ. App. 1914): A corporate officer usually holds over until his successor is duly elected. Quitman Oil Co. v. Peacock, 14 Ga. App. 550, 81 S. E. 90S. 8. 1 Ewell's Bl. Com. 476; Abb. Dig. Corp. " By-Laws ; " Ang. & Ames, §§ 110, 325; 1 Kyd, 69; Hob. 211; Taylor, § 582. Judicial knowl- edge of acts of corporations. Cham- berlayne Evid.. § 625. Judicial knowl- edge as to by-laws. Chamberlayne Evid., §§ 611. 613, 625. 345 § 228 THE LAW OF PERSONAL PEOPERTY. [pART II. a State, must always conform. Of course, the by-law of a corpo- ration in this country must not contravene the State or United States constitution, nor, indeed, should the charter; and, besides being subject to these and to the charter creating it, the by-law of a corporation must be in itself reasonable; whence, by-laws in re- straint of trade or repugnant to sound morals have been pro- nounced void ; while a by-law which might under one construction be unreasonable has received another construction which would make it reasonable.^ A by-law may be good in part and bad in part; or the whole may be vitiated by the bad part, according to circumstances.^ The power of making by-laws is to be exercised by the members at large according to common-law methods, or rather after the same manner in which the charter directs them to transact their general business ; and here again the act of incor- poration, whether special or general, may throw light on the sub- ject. The will of the majority determines presumably in such cases.^ The power to make by-laws presupposes the power to enforce them by appropriate penalties, or to repeal them altogether; ^ but their repeal cannot affect vested rights under a fundamental law, any more than their passage.'* And by-laws, when made, are binding upon all the members of the corporation, and upon others acquainted with their mode of business conformably to the by-laws. By-laws regulating the directors and other agents of the company as to the business management should be observed by them.^ 9. lb.; Hob. 210; Brightly Fed. municipal corporations. Morawetz, Dig. 188, 189; Kennebec R. R. Co. v. § 366. Kendall, 31 Me. 470; Common- 3. Rex v. Westwood, 2 Dow. & C. wealtli V. Worcester, 3 Pick. 462; 21 ; Ang. & Ames, §§ 327-329 ; Taylor, Queen v. Saddlers' Company, 10 H. L. § 584 ; Abb. Dig. Corp. " By-Laws ; " Cas. 404 ; Vedder v. Fellows, 20 N. Y. Union Bank v. Ridgely, 1 Harr. & G. 126. 324. 1. See Abb. Dig., supra; Rogers v. 4. See Kent v. Quicksilver Co., 78 Jones, 1 Wend. 237. N. Y. 159. 2. Morawetz, § 366. The term by- 5. Stevens v. Davi^n. 18 Gratt. law was orisrinally applied to the laws 819. See Morawetz, §§ 366-370. and ordinances enacted by public or 346 CHAP. tXI.] MEMBERS OF COEPORA.TIONS. § 229 But those who deal with a corporation in ignorance of a certain by-law cannot be affected in their rights merely because the by-law exists; for members and officers are presumed to know all the by-laws, while third persons must have had the knowledge of any by-law brought home to them in such a manner that it entered into the mutual agreement.^ § 229. The Corporate Seal. Much signficance was formerly attached to the corporate seal ; probably because such of our ancestors as could not write or read writing found the use of a seal almost indispensable to authenti- cate their solemn acts. But it must be admitted that there is a peculiar propriety in giving to every corporation, as well as to every government, an official seal, to be used in formal instruments as a means of confirming the authority and assuring the deliberate purpose of the officers who execute on behalf of the corporation at large. Blackstone carries this reason very far when he asserts that a corporation acts and speaks only by its common seal, be- cause, being an invisible body, its intentions cannot be manifested by any personal act or oral discourse; for, in truth, government speaks by its legislative acts, and every corporation public or pri- vate manifests its intention clearly enough by its ordinances or by-laws.^ At the present day private corporations make contracts and manifest their assent either by the common seal, or in other words by deed ; or by the vote of the corporation ; or by the contracts or agreements of their authorized agents ; and so, too, the inference of a promise by implication may be drawn from certain corporate 8. lb.; Palmyra v. Morton, 25 Mo. upon general contract principles. 593; 2 Kyd, 156; Royal Bank of Flint v. Pierce. 93 Mass. 68. India's Case, L. R. 4 Ch. 252; Mora- As to the bindinjr cfTect of corporate wotz, §§ 332, 370. Records of cor- by-laws, see McCall later v. Rhannon- poration as evidence, see Chamber- dale Co., 47 Ind. App. 517, D4 N. E. layne Evid., §§ 2760, 3491. The rights 910; Commonwealth v. Vandosrrift, of a third person under a by-law to 232 Pa. 53, 81 Atl. 153. establish a legal claim must depend 7. 1 Ewell's Bl. C/om. 475; Ang. 4 Ames, § 216 ; Taylor, §§ 12, 248. 347 § 230 THE LAW OF PEESONAL PROPERTY. [pART II. acts.^ With the progres of invention, and the enormoiis growth of business details, we find ourselves, in this day, gladly escaping many of the clumsy formalities which were in favor at a time when men found ample leisure for solemnizing every important legal transaction ; and the impression of a corporate seal upon the substance of the paper is now regarded commonly as quite effectual without the use of the once significant wax ; though, as the courts of some States rule, the seal is not sufficiently affixed if printed on a blank certificate at the time when the rest of the paper was printed, and afterwards signed by the corporate officer.^ The effect of sealing is the same as when an individual signs and seals ; it makes the contract a specialty or sealed instrument.^ We should be careful to distinguish the individual from the corporate signature and execution ; and it must always be borne in mind that the corporate seal affixed to a contract or conveyance does not ren- der the instrument valid unless affixed by an officer or agent duly authorized either generally or specially for that purpose.^ § 230, Power of Private Corporations to Hold and Dispose of Personal Property. To investigate the powers and capacities of corporations at length would be foreign to the purpose of the present treatise ; and the reader should refer to more exhaustive works for informa- tion on this important topic of law. Of corporation stock and the rights of stockholders, we shall speak in a future chapter. 8. Ang. & Ames, § 112 ; Morawetz, signing with the addition of his offi- § 167. cial name; but less formal methods 9. See Hendee v. Pinkerton, 14 of execution are sometimes sustained. Allen, 381; Haven v. Grand Junction Ang. & Ames, § 227; Hutchins v. R. R. Co., 12 Allen, 337; Ang. & Byrnes, 9 Gray, 367. See Eureka Ames, § 218 et seq.; Abb. Dig. Corp. Company v. Bailey Company, 11 Wall. " Seals." 488. 1. lb.; Clark v. Woollen, &c., Co., 2. Damon v. Granby, 2 Pick. 345; 15 Wend. 256. The usual style is to Bank of Ireland v. Evans, 5 H. L. afiSx, " In witness whereof, the A. B. Cas. 389 ; Koehler v. Black River Co., corporation, by J. S., their [treas- 2 Black, 715; D'Arcy v. Tamar R. R. urer], duly authorized for this pur- Co., L. R. 2 Ex. 161; Morawetz. pose, have hereunto," &c.; J. S. § 168. 348 CHAP. XI.] MEMBEKS OF CORPORATIONS. § 231 But having sufficiently set forth those legal principles which de- termine the organization of private corporations, we now come to a most pertinent branch of the present subject: namely, the power of such corporations to take, hold, transmit in succession, and alienate personal property. § 231. The Same Subject; Right to Purchase and Hold Personal Property. The rule is generally stated quite broadly, and to this effect, that every corporation has at common law a right, incidental to its creation, to take, hold, and in succession transmit property, both real and personal, to an unlimited extent or amount.^ As to per- sonal property in particular, this unlimited right is asserted in the absence of charter restrictions.'* But while a business corpo- ration ought to be able to hold and dispose of property to an extent sufficient to inspire confidence in its resources and enable it to pursue legitimate ends, a limit may not unreasonably be imposed ; and in some cases it is maintained that even the common law gave corporations the right to purchase and hold property only so far as might enable them to fulfil the objects of their creation.^ Be this as it may, we find that is is quite common for an act of incorporation or general statute not only to require that the whole capital stock, or a certain amount of it, shall be paid in or sub- scribed before the corporation can commence operations, but also to limit the right of holding property to whatever amount may he needful or necessary to the object of its creation. And in such cases the decision of the court will usually turn upon mere construction. To prevent monopolies, to place a check upon arbitrary power, 3. Abb. Dig. Corp. 584 ; 2 Kent shares. Book 12, N. Y. Rpts., Bender Com. 281; 1 Bl. Com. 475; Ang. & ed., note, p. 233. Ame«, § 145, and cases cited; Taylor, 4. See § 233. §§ 128, 129 ; McCartee v. Orplian 5. Soo Page v. Heineberg, 40 Vt. 81 ; Asylum Society, 9 Cow. 437; Over- Blanchard's Factory v. Warner, 1 Bl. seers of Poor v. Sears, 22 Pick. 122. C. C. 258; State v. Commissioners, 3 Right to pay for goods and labor with Zabr. 510. 349 § 231 THE LAW OF PERSONAL PROPERTY. [PART II. and to guard the public against those evils which attend the wield- ing of immense wealth in the hands of a few, our State legislatures often indicate plainly, in the charters they grant, how much prop- erty the corporation may hold at the outside limit, in what it shall consist, the purposes for which it shall be purchased and held, and the mode in which it shall be applied.^ But the amount of capital stock to which a corporation is by its charter limited is not per se a limitation upon the amount of property which it may own, or upon its outstanding liabilities; for the capital stock is rather to be regarded as that sum, divided into shares, which represents the aggregate interests of the various stockholders, and upon which assessments are to be computed and dividends paid.^ Nor are the individual members of a corporation legal owners of the cor- porate property, either jointly or as partners; though in some joint-stock companies of a peculiar character a sort of partnership is found to exist among the associated members.^ In what are, strictly speaking, corporations, the corporation, as such, is the sole owner, notwithstanding the individual stockholders are indirectly to profit by the increase or lose by the destruction of the property, or that one person holds most or all of the stock.^ 6. Callaway Co. v. Clark, 32 Mo. sey. In each case a corporation was 305; Ang. & Ames, § 146; Minor v. authorized in effect by its charter Mechanics' Bank, 1 Pet. 46. to hold such property as might be 7. Ang. & Ames, § 151 et seq.; needful or necessary to the object Harpending v. Dutch Church, 16 Pet. of its creation. The Missouri cor- 492; Barry v. Merchants' Exchange poration was created for the purpose Co., 1 Sandf. Ch. 280. of mining and transporting coal; and 8. See § 201. tlie court decided that it might prop- 9. Regina v. Amaud, 9 Q. B. 806; erly purchase and own a Steam-boat Abb. Dig. 584; Brock v. Poor, 216 for transporting and delivering the N. Y. 387, 111 N. E. 229. To show coal. Callaway Co. v. Clark. 32 Mo. that the limitations imposed upon 305. But see Pearce v. Madison, &c., corporations, in respect of the power R. R. Co., 21 How. 441. The New to hold property, give rise to nice dis- Jersey corporation was a railroad tinctions, even where the construction and transportation company; and in of words used in the charter deter- this case it was held that among the mines the controversy, let us take two necessary appendages were suitable American cases, decided the one in depots, car-houses, water-tanks, shops Missouri and the other in New Jer- for repairing engines, houses for 350 CHAP. XI.] MEMBERS OF COEPOKATIONS. § 232 § 232. The Same Subject. The rights of corporations are not equally favored in all parts of this country. Sometimes jealousy of their encroaching force seems to influence the decision of the court or legislature. On the other hand, it is often, especially where railways are concerned, confidence that a new and undeveloped region will *be laid open to prosperous trade, or deference to capital allied with power. Prohibitions in an act of incorporation receive frequent consider- ation; and it is said that there is a broad distinction between a prohibition in a corporation charter to purchase or take, and a prohibition to hold.' Corporations are usually allowed to pur- chase and hold bills of exchange and promissory notes within the limits already indicated.^ As to the power of a corporation to hold its own stock or to subscribe for stock in another corporation independently of charter provisions, there is some uncertainty. A corporation's right to purchase its own stock appears to be in disfavor in England ; ^ while in this country the rule is rather that there is no illegality in doing so, though the exercise of such a right admits of some salutary qualifications.'* For one corpora- switch and bridge tenders, and coal 4. Taylor, §§ 134, 135; Dupee v. or wood yards for the use of the Boston Water Power Co., 114 Mass. locomotives; all of which, then, it 37; Fremont Carriage Mfg. Co. v. might erect, maintain and own; but Thomsen, 65 Neb. 370, 91 N. W. 376; as what was necessary did not ex- Porter v. Plymouth Gold Mining Co., tend to things merely convenient or 29 Mont. 347, 74 Pac. O'SS. See con- advantageous, it could not set up tra, Maryland Trust Co. v. Nat. Me- factories for making its own rails, chanics Bank, 102 Md. 608, 63 Atl. engines, and cars, nor purchase coal 70; Coppin v. Greenlees, etc., Co., 38 mines to supply its fuel. State v. Ohio St. 275; Vail v. Hamilton, 85 Commissioners, 3 Zabr. 510. And see N. Y. 453. An insolvent corporation Railroad v. Berks County, 6 Penn. cannot thus purchase, nor is the prior St. 70; Worcester v. Western R. R. holder to 1k» thus relieved of his Co., 4 Met. 564. statutory liability to creditors. Tb. 1. Leazure v. Hillegas, 7 S. & R. Even tiiose jurisdictions which hold 313; Runyan v. Coster, 14 Pet. 122; that a corporation cannot buy its Blunt V. Walker, 11 Wis. 334. own stock uphold the taking of stock 2. See Abb. Dig. Corp. 586, 587. in payment or as security for a debt. 3. Trevor v. Whitworth, L. R. 12 Taylor v. Miami Exporting Co., 6 A. C. 409. Ohio, 176; German Savings Bank v. 351 § 233 THE LAW OF PERSONAL PKOPERTY. [PART U. tion to subscribe in the stock of another would be objectionable, and — unless in some way authorized by the charter — would probably be treated in most cases as void.^ And yet it is held not objectionable for directors to take stock in another company in payment of property sold and as the means of selling it, if taken with a view to selling it again.^ Savings banks are often author- ized by statute to invest in the stock of other banks, as a species of prudent investment. The great danger to be avoided is that of permitting a corporation to push wild schemes for the absorp- tion of power, — a permission which is constantly craved on the part of an enterprising directory, and secured whenever one com- pany may purchase a wntrolling influence in the affairs of another. § 233. Power to Hold Real Estate; Statutes of Mortmain. As to the right of a corporation to hold real estate, we may observe that, in order to restrain it, a variety of statutes, from the days of Magna Charta and King Henry III. down to the reign of George II., have been passed, known as the statutes of mortmain, and originally designed to loosen the " dead clutch " of the ecclesiastical corporations upon lands and tenements, though afterwards extended in principle to lay corporations. It is noticeable that these statutes make no mention of personal prop- erty.^ And, although originating in the feudal system, the policy of this mortmain legislation was known to the civil law.^ A cor- Wulfekuhler, 19 Kan. 60; State v. 6. Hodges v. N. E. Screw Co., 3 Oberlin Building & Loan Association, R. I. 9. And see Howe v. Boston 35 Ohio St. 358. See 27 Harvard Law Carpet Co., 16 Gray, 493. Eeview, 747. 7. 1 Swell's Bl. Com. 479; Ang. & 5. Mechanics' Savings Bank v. Ames, § 148 ; Baird v. Bank of Wash- Meriden Agency Co., 24 Conn. 159: ington, 11 S. & R. 411; Vanseat t. Morawetz, § 197; Clearwater v. Mere- Roberts, 3 Md. Ch. 119'; 2 Kent Cora, dith, 1 Wall. 40. In Branch v. 283; 2 Redf. Wills, 1st ed. 783; Jesup, 106 U. S. 468, it was held that Morawetz, §§ 156-161; Taylor, § 128. the purchase by one railway com- 8. Browne's Civil Law, 145; pany of a road constructed by an- & Ames, § 150. other was not ultra vires. See § 245, post. 352 CHAP. XI.] MEMBERS OF COKPORATIOXS. § 233 poration cannot take an estate in joint tenancy, either jointly with another corporation or with a natural person.^ And while the common-law principle may be considered as applicable alike to real and personal property, so far as concerns the right of a corpo- ration to purchase and hold it, the statutes of mortmain long since established, where such statutes prevailed, an essential practical difference on behalf of things personal.^ Devises of lands to cor- porations are not favored by our law.^ And yet, there are many of our modem corporations whose business essentially requires the holding of real estate, and public policy moulds the legislative grant accordingly.^ So are some modern corporations created expressly for the purpose of dealing in lands.'' It is one thing, however, to purchase directly, and another to hold property by reason of the foreclosure of some mortgage or the forfeiture of some pledge given to secure a bond fide debt. Corporations, like individuals, necessarily become creditors in the course of business ; and common prudence dictates that a debt due be sometimes secured by mortgage or otherwise. The power to take mortgages is often given to a corporation by its charter; and, even if not, it is usually an implied power, provided the debt 9. Telfair v. Howe, 3 Rich. Eq. Where a corporation is incompe- 235. tent under its charter to take real 1. The statutes of mortmain, though estate, a conveyance to it is voidable in force in Great Britain, appear in and not void, and only direct pro- many of the United States to have ceedings at the instiince of the State no force, or else to apply merely to can invalidate it. Fritts v. Palmer, ecclesiastical corporations. However, 132 U. S. 282. legislative provisions are to be found 2. See Morawetz, §§ 160. 161 ; 2 in various States, expressed either in Bl. Com. 372. A.s to the American special cliarters or general laws, in- doctrine in this respect, see Downing spired by the English policy. See v. Marshall, 23 N. Y. 366; Taylor. Morawetz, § 157; Page v. Heineberg, § 3f)l. The English statutes of wills, 40 Vt. 81; Odell v. Odell, 10 Allen, enacted under Henry VITT., have an 1; Downing v. Marshall, 23 N. Y. important bearing on this question. 392; Perin v. Carey, 24 How. 465; 3. As, e. (j., railways, and their Miller v. Porter, 53 Penn. St. 292. right to acquire land for their routes The right to hold land may be found by eminent domain. See § 240. granted, restricted, or forbidden, un- 4. See Fort Worth Co. v. Smith der any particular charter in question. Bridge Co., 151 U. S. 294. 23 353 § 234 THE LAW OF PERSONAL PROPERTY. [PART II. were bond fide created in the regular course of business.^ In some States a bank may receive real estate as security for a loan or in payment of debts.^ Even a prohibition on purchasing or dealing in land does not necessarily forbid taking a mortgage as security.'' Corporations often lease buildings, too, and are held liable on their covenants.^ And, whether it be in regard to real estate or some species of personal property, that a corporation is forbidden to purchase and hold such property, under ordinary circumstances, the rule appears to be quite favorable in permitting corporations to secure debts due them, as best they may, even though the col- lateral security taken should be of the prohibited class. § 234. Power to Take by Bequest. Corporations have the common-law right of taking personal property by bequest, equally with natural persons; and even a bequest to a corporation of its own stock is valid.^ But the law in this respect is affected by Statute 43 Eliz,, c. 4, relating to charitable uses.^ Religious corporations, and even unincorporated religious societies, frequently receive gifts and bequests under a will for objects within the scope of their usual duties; and in this country the statute of charitable uses receives a favorable construc- tion from the courts. Even a misnomer of the corporation does not vitiate the bequest, provided its identity be otherwise apparent.^ 5. 2 Kent Com. 283 ; Ang. & Ames, Cartee v. Orphan Asylum Society, 9 § 156; Susquehannah Bridge Co. v. Cow. 437. General Ins. Co., 2 Md. Ch. 418; Sil- 1. 2 Kent Com. 285; Ang. & Ames, ver Lake Bank v. North, 4 Johns. §§ 179-185. And see, as to Legacies, Ch. 370. 2 Schoul. Wills & Ex'rs, §§ 1458-1475. 6. Thomaston Bank v. Stimpson, 21 2. lb. An executory bequest lim- Me. 195; 2 Kent Com. 283; Abb. Dig. ited to the use of a corporation to be Corp. 41. created within the period allowed for 7. Blunt V. Walker, 11 Wis. 334. the vesting of future estates and in- 8. Abby v. Billups, 35 Miss. 618. terests is valid. Burrill v. Board- 9. Ang. & Ames, § 177; Rivanna man, 43 N. Y. 254. Nav. Co. v. Dawson, 3 Gratt. 19; Mc- 354 CHAP. XI.] MEMBERS OF CORPORATIOXS. § 235 § 235, Power to Hold Property upon Trusts. As to the capacity of corporations to hold property upon trusts, there are English authorities which treat them as incapable, though for reasons somewhat artificial; but in this country their capacity to perform the duties of trustees is generally admitted, and the present American rule is that any corporation may hold property in trust for purposes not foreign to its own institution.'' Some of our courts seem disposed to regard this capacity of a corporation even more favorably; yet in matters entirely outside of the proper purposes of the corporation, and more especially if the trust be repugnant to or inconsistent with the duties imposed by its creation, it should be conceded that a corporation has no right to take trust property nor to act as trustee.'* The right of a corporation to take a trust which is valid in point of law must be contested by the State, and not by heirs and parties ; and while the corporation may not be permitted to execute a trust, upon the grounds already indicated, yet this is no reason why a trust unex- ceptionable in itself should not be permitted to stand with a new trustee substituted for the corporation.^ A notable development of recent years is the growth of trust companies and other cor- porations under laws expressly authorizing them to be appointed and act as trustees of various sorts. 3. 1 Kyd, 27 ; Ang. & Ames, §§ 166- incorporated literary institutions are 168; 2 Kent Com. 285; Phillips Acad- authorized to take real and personal emy v. King, 12 Mass. 546; Mora- estate in trust for a variety of pur- wetz, § 163; Vidal v. Girard, 2 How. poses. N. Y. Stat. May 14, 1840, ch. 187. 318; Ang. & Ames, § 168, Lathrop's n. 4. See Jackson v. Hartwell, 8 The charter of a corporation some- Johns. 422 ; Vidal v. Mayor, &c., of times provides in effect that the whole Philadelphia, 2 How. 128; Trustees property of the company shall be held V. Peaslee, 15 N. H. 317. as real estate and so descend, or, 5. Bliss' V. American Bible Society, on the other hand, that it shall be held 2 Allen, 334. See American Academy as personal estate and be transferred V. Harvard College, 12 Gray, 582. and distributed accordingly. Al- This whole subject will be found to though such clauses are usually de- have been modified considerably by signed to operate as among the stock- local statutes; as, for instance, in holders, and not as to strangers, the New York, where colleges and other legislature may give a provision of 355 § 236 THE LAW OF PERSONAL PROPEETY. [PAET II. § 236. Right to Transfer and Dispose of Corporate Property. Incidental to the right of holding property is the right to dis- pose of it at pleasure. Independently, therefore, of positive law to the contrary, all corporations have the absolute jus disponendi of all property, whether real or personal, which they may have lawfully acquired. Nor does the circumstance that the State holds some of the stock of the corporation affect this common-law right of alienating the corporation property.^ And if a corpora- tion has power to dispose of its property in general, it certainly can, like an individual, dispose of any portion it may see fit. It may lease, grant, or mortgage what are rightly its lands, or assign such a mortgage, and may be held liable upon its covenants cor- respondingly like an individual.^ It may sell its property in order to raise money for the legitimate objects of its creation ; ^ and if it can borrow, it can borrow upon security of what it owns. If a suitable building for its business be lawfully purchased, its mortgage given to secure part of the purchase-money is equally lawful.^ And where a corporation has the right to purchase ma- terials to be worked up in its factories, it may by inference borrow m.oney for that purpose, and may pledge the corporate property as security.^ But all this might be a matter of special regulation in the charter; and we frequently find, in England and some portions of the United States, restraints placed by statute upon the aliena- this kind a more sweeping effect, by Ch. App. 83; Aurora Soc. v. Paddock, using suitable language for that pur- 80 111. 263. pose. Cape Sable Company's Case, 7. lb.. Hart v. Eastern Union R. R. 3 Bland Ch. 670. Co., 8 Ex. 116; Abb. Dig. Corp. 41: 6. Abb. Dig. Corp. 587-588; 1 Kyd, Morawetz, §§ 174, 175; Taylor, §130. 108: Ang. & Ames, §§ 187-191; 2 8. See § 239. Bland Ch. 142; Reynolds v. Commis- 9. Shaver v. Bear River M. Co., 10 sioners, 5 Ohio, 204; White Water Cai. 396. Canal Co. v. Vallette, 21 How, 424: 1. Fay v. Noble. 12 Cush. 18; Dupee V. Boston Water Power Co., Uncas Nat. Bank v. Rich, 23 Wis. 339. 114 Mass. 37; Burton's Appeal, 57 See Phillips v. Winslow. 18 B. Men. Penn. St. 213 ; In re Patent File Co. 431 ; Willink v. Morris Canal Co., 3 & Birmingham Bank Co., L. R. 6 Green Ch. 377. 356 CHAP. XI.] MEMBERS OF CORPORATIONS. § 237 tiou of corporate property, especially in the case of religious cor- porations.^ A restraint upon the power of alienation may be derived from the form of the instrument prescribed by its charter or by-law.^ Sometimes the charter provides as to the place where it shall dispose of certain kinds of property ; as in the case of the charter of a fire insurance and loan company, which especially empowered the company to take mortgages, but provided that all mortgage sales should be made in the county where the property was situated.'* Sometimes the instrument must be executed in a praticular manner ; as where an act of incorporation required the assent of three-fourths of the stockliolders to make a mortgage.^ All such requirements, if expressed, must be strictly complied w4th, or the transaction is likely to fail altogether; although we find the courts disposed to protect third parties in their rights, when construing restraining clauses of this character, and to pre- vent the transaction from being collaterally impeached.^ The circumstances under which equity would interfere to restrain a corporation from improperly alienating its property must depend on general principles; but the court would doubtless interpose wherever the alienation was for other than permissible corporate purposes.^ The power to purchase usually implies the power to sell ; and the implied power to sell includes the power to bind by a reasonable condition to refund on certain contingencies.^ § 237. The Same Subject. A provision in the charter making the stockholders individually liable for the corporate debts does not affect the right of a corpo- ration to dispose of its property; ^ nor does the fact that proceed- 2. Anfj. & Ames. §§ 187. 188; 2 6. See Fuller v. Van 0«eson, s!/;»ra ; Kent Com. 281; 1 Kyd, 116-162. Ang. & Ames, § 189; Duncomb v. 3. Myatt v. St. Helen's R. R. Co.. N. Y.. &c., Ry. Co.. 84 N. Y. 190. 2 Q. R. 364. 7. Ang. & Amos, § 190. 4. Fuller v. Van Geest-n, 4 Hill, 8. Do Groff v. Linen Thread Co.. 171. 21 N". Y. 124. 5. Cape Sable Company's Case, 3 9. As to the riglit to assign if in- Bland Ch. 166. solvent, see Abb. Dig. Corp. 43-47; 357 § 237 THE T>A\V OF PEKSONAL PROPERTY. [part II. ings for forfeiting the charter were pending, under a writ of quo warranto, or that the charter was just about to expire.' But an assignment and transfer of the corporate franchise outright is beyond the power of any corporation under its charter apart from the consent of the State; and a corporation cannot even mortgage its franchise in such a sense as to give the mortgagees a right to foreclose.^ The practical mode of selling out the fran- chise is for individuals to dispose of their stock to others and thus give to transferees a controlling interest. And fraudulent transfers, whether made to defeat the insolvent laws, or for the aggrandizement of unprincipled achemers, are not and should not be tolerated under any circumstances.^ Ang. & Ames, § IW; State v. Bank of Maryland, 9 Gill & J. 205. 1. Cooper V. Curtis, 30 Me. 488; State V. Commercial Bank, 13 Sm. & M. 569. As to liability under by- laws, see Flint v. Pierce, 99 Mass. 68. 2. See Ang. & Ames, § 191, and La- throp's n., with eases cited; Common- wealth V. Smith, 10 Allen, 448 ; Coe v. Columbus R., 10 Ohio St. 372; Mora- wetz, §§ 535-542, and cases cited; Carpenter v. Black Hawk Mining Co., 65 N. Y. 43; Thomas v. West Jersey R., 101 U. S. 73. Where a railroad corporation assigns the right to use and control its road, it yet remains liable for the infringement by its as- signees of a patent right. York R. v. Winans, 17 How. 30. But a distinc- tion is drawn, conformably to the legislative intent, as deduced from the particular charter or the particu- lar class of business in which the cor- poration is to engage. A legislature may have conferred the right to trans- fer or mortgage the franchise; and franchises merely appertaining to the use of particular property (such as to build and maintain a turnpike road) may sometimes be presumed to enable a mortgage of such franchise to be made. Morawetz, § 540 ; Pierce V. Milwaukee R., 24 Wis. 551. But the mortgage of a franchise, so as to carry a special immunity from tax- ation, should be understood differ- ently. Morgan v. Louisiana, 93 U. S. 217. And as to transferring to a lessee the power of eminent domain, a similar objection applies. Mayor of Worcester v. Norwich, &c., Ry. Co., 109 Mass. 103. This whole sub- ject, comparatively novel in develop- ment, is full of doubt and difficulty, and the only safety appears to be in procuring express legislative sanc- tion. See Morawetz, §§ 535-542; Taylor, §§ 131, 132. The legislature which creates the corporation and grants the franchises, has power to authorize it to sell them. W^ilamette Co. V. Bank, 119 U. S. 191. 3. Bodley v. Goodrich, 7 How. 277; Kean v. Johnson, 1 Stockt. 401 ; Ang. & Ames, § 191 ; Morawetz. § 176, and cases cited; Moss v. Averill. 10 N. Y. 449, 457. A lease by one common carrier to another of all its property 358 CHAP. XI.] MEMBERS OF COKPORATIOXS. § 238 Furthermore, in the absence of statutes of especial application to corporations, the usual laws relating to the transfer of property and prescribing formalities of execution must be observed ; and, in general, the word " persons," 'in laws relating to the transfer of property, includes corporations.'* § 238. Right to Issue Negotiable Obligations. A corporation often becomes a party to negotiable paper, by the signature of its president or other duly empowered agent. If this be done in the transaction of its legitimate business, and as a convenient mode of conducting its affairs, the corporation will be bound,^ And the note of a manufacturing corporation may be enforced, even though given as a mere accommodation, pro- vided the holder took it in good faith and before maturity with- out knowledge of this fact.*^ The same general doctrine extends to executing other classes of commercial securities such as coupon bonds; and the payment of all such obligations may be secured by a pledge or mortgage of the corporate property.^ But in respect of the right to issue negotiable obligations, the English rule appears to be more strict than the American; for while, under late English decisions, it is established that a corpo- ration, whose business is of such a character that the issuing of has been held ultra vires and void, signs negotiable paper on behalf of as an abandonment of its own public the corporation binds only himself in- duty. Central Trans. Co. v. Pullman dividually, unless ho signs in due Co., 139 U. S. 24. See § 245. form. Caphart v. Dodd, 3 Bush, 584; 4. See State v. Nashville Univer- Button v. Marsh, L. R. 6 Q. B. 361. sity, 4 Humph. 157 ; Ang. & Ames, And inasmuch as a corporation can- § 193. not go beyond the powers specifically 5. Ex parte Overend, L. R. 4 Ch. granted to it or necessary for car- 460; Perrine V. Chesapeake, &c., Canal rying those powers into effect, the Co., 9 How. 172 ; Cooper v. Curtis, notes of a railroad company given 30 Me. 488; Abb. Dig. Corp. 119-121. for the purchase of steamboats are 6. Monument National Bank v. held not enforct^able again.st it. Globe Works, 101 Mass. 57. Pearoe v. Madison, &c., R. R. Co., 7. Olcott V. Tioga R., 27 N. Y. 546; 21 How. 441; West River Bridge Co. Morawetz, § 176; Taylor, § 125. See v. Dix, 6 How, 507. Part III post. But the agent who 359 § 239 THE LAW OF PERSONAL PROPERTY. [part II. negotiable instruments would be an ordinary incident, as in the case of a bank with implied authority to issue negotiable instru- ments, it is held, nevertheless, that corporations whose business does not ordinarily require such an issue cannot issue such instru- ments.^ In most parts of the United States, however, the doc- trine is more lax; and various classes of corporations, railways and manufacturing companies, for instance, are treated accord- ingly as having by implication the right to issue negotiable instru- ments for any legitimate purpose.^ § 239. Right to Borrow or Raise Money. Of the right to borrow, it may be more generally added that private corporations have an implied authority to borrow money and incur debts in the- due fulfilment of their legitimate purposes ; ^ 8. See Bateman. v. Mid-Wales R., L. R. 1 C. P. 499-; Morawetz, § 178; L. R. 2 Ch. 617. The implied prohi- bition thus extends to railways; as also to mining, gas, water, cemetery, and various manufacturing associa- tions. See Morawetz, § 178, and cases cited. 9. Morawetz, §§ 176-178; Taylor, §§ 125-127. Railway companies can issue negotiable instruments in the United States. Olcott v. Tioga R., 27 N. Y. 546; Railroad Co. v. How- ard, 7 Wall. 412; Richmond R. v. Sneed, ID Gratt, 354; Hamilton v. Newcastle R. R. Co., 9 Ind. 359; Lucas V. Pitney, 27 N. J. L. 221. So may manufacturing companies gen- erally. Morawetz, § 178; 35 N. Y. 505 ; National Bank v. Globe Works, 101 Mass. 57; Orford Iron Co. v. Spradley, 46 Ala. 98. Railroad and other corporations in this country have shown great in- genuity of late years in tempting in- vestments of new and peculiar kinds. It is held that a railroad company may lawfully issue such securities aa " deferred income bonds," which can only receive interest after net earn- ings reach a prescribed point. Phila. R. V. Stichter, cited Taylor, § 126. But see contra, Taylor v. Phila. R., 7 Fed. 386, where such obligations are made '^ irredeemable." A railroad corporation having legis- lative power to issue bonds or lease a road, is allowed by some decisions to guaranty other bonds as incidental to such power. Taylor, § 127 : Railroad Co. V. Howard. 7 Wall. 592. 1. Bank v. Breillat, 6 Moore P. C. 152; Imperial Land Co. v. Nat. Bank, L. R. 10 Eq. 311; Morawetz. § 171, and cases cited ; Commercial Bank v. N. 0. Man. Co., 1 B. Monr. 14; Orford Iron Co. v. Spradley, 46 Ala. 9'8 ; A. W. Moss v. Harpeth Acad- emy, 7 Heisk. 285; Nelson v. Eaton. 26 N. Y. 410. The right to borrow includes the right to give a written acknowledgment of indebtedness after the usual form. Morawetz. § 171; Com'rs of Craven v. Atlantic R. R. 360 CHAP. XI.] MEMBERS OF CORPORATIONS. § 240 though only for such purposes in a just and rational sense, and where, moreover, the charter contains no express prohibition of such acts.^ An express limitation upon the right of borrowing is held to be not necessarily a limitation upon the right of incur- ring debts in managing the ordinary business of the corporation."' But a corporate borrowing, to be legitimate, ought to include some sort of promise to return the principal of the loan sooner or later.'^ § 240. Rule of Eminent Domain Applied. Corporation property is subject to the right of eminent domain on the part of government, and may be applied even to the extent of extinguishing its franchise to public uses, like that of a citizen, upon the payment of just compensation. No exemption indeed can be claimed from this rule ; unless, perhaps, it could be shown that the property had already been applied to a greater or equally beneficial public use.^ This public right of eminent domain is sometimes delegated in a measure by government, on behalf espe- cially of railroad companies ; but the legislature cannot relinquish the right. The statute mode of grant must be strictly followed. ]!io corporation may take private property without the owner's assent, unless the power to do so is given expressly or by necces- sary implication ; the power itself extends only to necessary prop- erty for the corporate purposes, and just compensation must be made to the owner at all events.^ Co., 77 N. C. 28'9. Cf. preceding sec- States does not jjroliiliit tliis to a tion. See Reid on Corpoiate Finance. State as " impairing the obligations 2. lb. See Duncomb v. N. Y., &c., of contracts." Cooley Const. Limita- R. R. Co., 84 N. Y. 190. tions, 342-344 ; Black v. Delaware 3. Morawetz, § 172, and cases cited; Canal Co., 24 N. J. Eq. 468; Phila- Re German Mining Co., 4 De G. M. delphia R. v. Catawissa R., 53 Penn. 6 G. 19. Cf. Ex parte Chippendale, 4 St. 20. De G. M. & G. 43. 6. Canal Co. v. Railroad Co., 4 4. See Taylor V. Philadelphia R. R., Gill & J. 1; Thacher v. Dartmouth 7 Fed. 386 ; Kent V. Quicksilver Min- Bridge Co.. 18 Pick. 501; Eastern ing Co., 78 N. Y. 159. R. R. Co. v. Boston &. Maine R. R., 5. The Constitution of the United 111 Mass. 125. 1:^9: Abb. Dig. Corp. 361 § 241 THE LAW OF TERSONAL PROPERTY. [pART II. § 241. Visitation of Corporations; Mandamus and Quo Warranto. Corporations are subject at the old law to what is called visita- tion. The origin of the visitatorial power is in the property of a donor, and the power which everyone has to dispose, direct, and regulate his own property. The internal affairs of ecclesiastical and eleemosynary corporations (the latter term including only schools, colleges, and hospitals) are usually inspected and con- trolled by a private visitor.^ But it is otherwise with civil cor- porations, whether public or private ; for these are subject to the law of the land, and are visited by the government itself through the medium of the courts.^ And the method of proceeding where the common-law jurisdic- tion is to be exercised over civil corporations is by writ of man- damus or by information in the nature of quo warranto. The writ of mandamus is (as the word imports) substantially a com- mand in the name of government, directed to persons, corpora- tions, or inferior courts within the jurisdiction, requiring them to do a certain act as the legal duty of their office, character, or situation; and, though issuing from the common-law courts, it affords a sort of equitable relief. This writ issues only at the dis- cretion of the court to whom the application is made ; it is not allowed unless the applicant has a clear legal right, and is without any other adequate or specific remedy for its enforcement ; nor will it control discretionary power, but applies to plain dereliction of duty.^ The object of mandamus is to compel corporate officers or the corporation itself to the performance of duties which are owed to the public and third parties in interest.^ " Eminent Domain ; " Ang. & Ames, 8. lb. ; King v. Excise Com'rs., 2 § 192 ; Morawetz, §§ 459'-462 ; Taylor, T. R. 385. §§ 163-166. 9. Rex v. Dublin, 1 Stra. 538. See 7. 1 Ewell's Bl. Com. 480; 2 Kent more fully Abb. Dig. Corp. 450-453; Com. 300-305; Ang. & Ames, §§ 684- Ang. &■ Ames, §§ 700-715; Taylor. 696; Dartmouth College v. Wood- §§ 454, 455; and general works on ward, 4 Wheat. 518 ; Abb. Dig. Corp. Practice, as to remedy by mandamus. 873 ; Green v. Rutherford, 1 Ves. 462. 1. As, for instance, to compel out- 362 CHAP. XI.] MEMBERS OF CORPORATIONS. § 241 Writs or information in the nature of quo warranto are usually filed, at the present day, by the attorney-general, or in his name pro forma by the prosecutor; and proceedings are conducted be- fore the highest court of ordinary jurisdiction. The local prac- tice depends, however, to some extent, upon local statutes. These informations are in form criminal, but in their nature they are civil proceedings.^ Quo warranto applies to all sufficient causes for the dissolution of a corporation ; though in general an informa- tion to dissolve must be prosecuted by the sovereign authority; and among other causes may be enumerated those of impeaching the title to office of some corporate officer or member, and of pro- ceeding against persons who presumed to act as a corporation when in fact no such corporation was ever created. Fines are merely nominal for the most part ; and the remedy aims to cor- rect the mischief in each case, according to the circumstances ; extending even to a seizure of the franchises, when necessary, and their forfeiture, — no dissolution taking place, however, until execution has followed a judgment of seizure.^ As mandamus and quo warranto are common-law proceedings, it is often said that corporations are amenable only to the common- going officers to surrender corporate era without any autiiority at all. See books; to obtain inspection of such § 243, post, as to dissolution, books; to compel a regular transfer 3. Commonwealth v. Union Fire, of shares; to compel officers to pub- &c., Co., 5 Mass. 2.'?0; Rex v. Ogden, lish periodical reports, or to hold 10 B. & C. 230; State Bank v. State, elections, or to call meetings. 1 Blackf. 278. See United States v. 2. Abb. Dig. Corp. 595-600; 2 Kyd Addison, 6 Wall. 291; People v. Corp. 395, 403; Ang. & Ames, § 730 Kankakee Co., 103 111. 4ffl ; State et seq.; 3 T. R. 484; Bac. Abr. In- v. Bick, 81 Ind. 78. Jurisdiction in formations, D. ; Taylor, §§ 457-460. equity has been refused, in a Massa- See Donnelly v. People, 11 Til. 552. chusettS case, where the party com- In this country the ancient writ of plained of was a private corporation, quo -ivarranto has become practically whose procetMlings had not endan- obsolete; but information in the nat- gcred any public or private rights, ure of a quo warranto will lie both and were objected to merely as un- against corporations having a legal authorized by the act of incorpora- existence for the forfeiture of their tion and contrary to public policy, franchises, and against such bodies Attorney-General v. Tudor Ice Co., as assume to exercise corporate pow- 104 Mass. 243. 363 § 242 THK LAW OF PEESONAL PROPEETY. [PART II. law courts. Yet, where a charitable or other corporation is chargeable with a trust, chancery may exercise some sort of juris- diction bj virtue of its well-known authority in such matters; and a corporation may be restrained upon equitable grounds on behalf of one or more stockholders or the State in various modem instances,'* so as to prevent ultjn vires acts which arc in contempla- tion from being performed. § 241a. Legislative Regulation; Foreign Corporations. Of late years Congress and our State legislatures incline much to regulating by statute corporations, and especially railway and other companies of the public service kind.''^ Furthermore, '' for- eign corporations," so called, — a term applied chiefly to those created in some other State, — are subjected to local statute con- ditions for obtaining permission to conduct a local business."^^ § 242, Dissolution of Private Corporations; how Effected. Now, as to the dissolution of corporations, and its effect upon 4. See 2 Kent Com. 305 ; Morawetz, conceded by the lex loci. Dalton §§ 657-659. Thus, misapplication of Adding Mach. Co. v. Va. Corporation funds or a violation of charter or il- Com'n, 213 Fed. 889; M. V. Moore legal voting upon shares is restrained, & Co. v. Gilmore, 216 Fied. 199'; though a court of equity will not un- Alpena Portland Cement Co. v. Jenk- necessarily interfere with the man- ins, 244 III. 352, 91 N". E. 480; State agement of the corporation. lb., §§ v. N. Y. Ins. Co., 173 S. W. 1099; 381-412; Taylor, 555, 556, 587. See Hannis Distilling Co. v. Baltimore, Arbour v. Pittsburg Ass'n, 44 Penn. 114 Md. 678, 80 Atl. 319; State Super. 240; People v. Dunbar Co., ex rel. Martin v. Howard, 96 Neb. 215 N. Y. 416, 109 K E. 554 (con- 278, 147, N. W. 689. But as to any spiracy) ; Meek v. Smith, 59 Colo. State attempt to restrain a foreign 621, 149 Pac. 627. corporation from seeking federal 4a. See Paul V. Virginia, 8 Wall. 168 ; courts, see Herndon v. Chicago, 218 Interstate Commerce Act (1887); U. S. 135, 30 S. Ct. 633. And as Wabash, &e., Ry. v. Illinois, 118 U. S. to other unjust attempts, see West- 557; In re Debs, 158 U. S. 564; ern U. T. Co. v. Frear, 216 Fed. 199. Schoul. Bailments, §§ 509-516. A fair license fee may be imposed. 4b. Corporations are the creation Moore & Co. v. Gilmore, 216 Fed. of local law, and they have no 199; State v. Creamery Co. 110 Minn, powers out of the State where they 415, 126 N. W. 623. were created, except such as' are 364 CHAP. XI.] MEMBERS OF COEPOKATIOXS. § 242 the corporate property. A corporation may be dissolved, as Chancellor Kent tells us, (1st) by statute; (2d) by the natural death or loss of all or an integral part of the members; (3d) by surrender of its franchises; (4th) by forfeiture of its franchises. And to these an eminent text-writer has added a mode grown to be quite common in this country: (5th) by expiration of its term of duration as limited by charter or general law.^ The first mode of dissolution applies rather to England, where an act of Parliament is supreme law, than to this country, where, in conformity to the Constitution of the United States, it has become a settled principle that the charter of a private corporation is an executed contract between the State and the individuals in- corporated, which the legislature cannot afterwards repeal, impair, or alter, against the consent or without the default of the corpora- tion judicially ascertained and declared.^ Since the decision of the Supreme Court of the United States in the great case of Dartmouth College v. Woodivard, it has become a common and prudent legislative practice in this country to reserve expressly in every important act of incorporation for private purposes the power on behalf of the State to alter, modify, or repeal at pleas- ure.'' And a reservation of this sort is frequently to be found in the general statutes ; ^ inasmuch as the granting of any corporate right or privilege rests entirely in the discretion of the State as to terms and conditions.^ 5. 2 Kent Com. 305; Ang. & Ames, prived of property nor the equal pro- § 765; 1 Ewell's Bl. Com. 485; Abb. tection of the laws, as State and Dig. Corp. 289-290; Morawetz, § 629. national constitutions provide. Min- 6. Dartmouth College v. Wood- neapoli.s R. Co. v. Beclcwitli, 129 ward, 4 Wheat. 518; 2 Kent Com. U. S. 26. 306; 2 Kyd, 446; Ang. & Amos, § 8. Sec Commonwealth v. Essex Co., 7G7; 1 Ewell's Bl. Com. 160, 485. 13 Gray, 239; People v. Oakland Co. But as to public corporations, see Bank. 1 Doug. (Mich.) 286; Suydam Curran v. State of Arkansas, 15 How. v. Moore, 8 Barl). 358; Pennsylvania 304. R. R. Co. V. Miller. 132 U. S. 75. 7. lb. And see, as to a private 9. See People v. Raymond. 104 business corporation. New Orleans v. N. Y. 189, 87 N. E. 90 (reservation Houston, 119 U. S. 265. Such corpo- to the legislature). rations are " persons " not to be de- 365 § 242 THE LAW OF PERSONAL PROPERTY. [PART II. As to the second mode of dissolution, the rule is self-evident where all of the members are dead, leaving no successors to sup- ply their places; but not so clearly in case an integral part is gone; for here a corporation is like a natural person, who dies if his head be gone, but might survive the loss of an arm; In other words, the dissolution of a corporation from the loss of an integral part results from the incapacity of the corporation in its imperfect state to act or to restore itself; and the legitimate existence of a part is not always indispensable to a valid elec- tion.^ Furthermore, it has been observed that private corpora- tions aggregate in this country for business purposes are not usually composed of integral parts; for stockholders compose the company, and the directors or managers are only their agents, so that the non-existence of the managers does not suppose the non- existence of the corporation; for which reason a mere failure to elect managers on the regular day would not prevent an election on the next charter day.^ So, too, as to companies represented by shares of stock, the death of a member passes the title in the shares to some one else ; unlike the case of a corporation of purely personal membership.^ The third mode of dissolution is by surrender of its franchises ; 1. 2 Kent Com. 309; Ang. & Ames, Should all the shares be held by one §§ 768-770; 2 Kyd, 448; Morawetz, person, the corporation might still §§ 632-635. exist; for if certain acts under the 2. Ang. & Ames, § 771 ; Morawetz, charter required more stockholders, § 633; Rose v. Turnpike Co., 3 Watts, this owner could transfer some of his 48. See Phillips v. Wickham. 1 Paige, ebares to another, and so conform to 597; Pondville Co. v. Clark, 25 Conn. the letter of the rule. lb., § 634. 97; Lehigh Bridge Co. v. Lehigh Coal Corporate powers remain for collect- Co., 4 Rawle, 9. ing debts, enforcing liabilities, and 3. Morawetz, § 634 ; Russell v. Mc- paying creditors, notwithstanding a Lellan, 14 Pick. 69. Discontinuance non-user. Brown v. Lake Superior of business by a business corporation Iron Co., 134 U. S. 533. does not dissolve it. And though the Insolvency alone does not dissolve organization be discontinued, a new a corporation, possession of property organization may be brought about, not being essential to the corporate and new officers chosen at some later existence. Morawetz, § 636 ; Wether- regular meeting. Morawetz, § 635. bee v. Martin, 10 Gray. 245. 366 CHAP. XI.] MEMBERS OF CORPORATIONS. § 242 and in this country it is generally admitted that whenever a corpo- ration voluntarily gives up its charter with the assent of the State, and perhaps where it dissolves by assent of its members alone (that of the State being sometimes presumed without a formal acceptance), the corporation is at an end; though it is clear that the officers cannot dissolve a corporation without the assent of the members, nor the majority in general against the will of the minority where an improper object was in view."* But trading and manufacturing corporations and those of other classes are expressly authorized in some States to have their affairs wound up on petition to the court of a majority in number or interest; the court, nevertheless, exercising discretion in granting the peti- tion; and this is a most desirable mode of procedure.^ No uni- versal form of surrender is provided by law ; and whether a corpo- ration has been sufficiently dissolved in this manner will depend in each case upon circumstances. A statute of the legislature repealing the act of incorporation would, if passed with the assent of the corporation, suffice for dissolution; but a temporary sus- pension of the corporate business would not, nor a neglect to choose officers, although a legal surrender may be presumed where the non-user of the corporate franchises iias long continued ; nor would the mere sale of the corporate property have such an effect.* 4. Mumma v. Potomac Co., 8 Pet. 23 Vt. 228; Brufett v. Great Western 281; Ang. & Ames, § 772; Norris v. R., 25 111. 353; 2 Kent Com. 311; Smithville, 1 Swan, 164; 2 Kent Com. Evarts v. Killingsworth Man. Co., 20 310; Abb. Dig. Corp. 289; Smith v. Conn. 448; Rooke v. Thomas, 56 Smith, 3 Des. Ch. 557. N. Y. 559. Under pcneral enabling 5. See Pratt V. Jewett, 9 Gray, 34; .'statutes for organizing business cor- N. Y. Rev. Stats. 466-472; Herring porations, a nioer judicial sub- 6. See 2 Kyd, 471 ; Ang. & Ames, mission are desirable ; and yet, as § 773, and cases cited; Abb. Dig. such companies usually sustain no Corp. 295; Morawetz, §§ 637, 638; real public duty, and, like individu- Bradt v. Benedict, 17 N. Y. 93 ; Uni- als, fail often of success without in- v«rsity of Maryland v. Williams. 9 solvency, dissolution should be simple Gill & J. 365; State v. Adams, 44 Mo. and easy. 570 ; Brandon Iron Co. v. Gleason, 367 § 243 THE I.AW OF PERSONAL PROPEKTY. [pART II. § 243. The Same Subject. The fourth mode of dissolution — by forfeiture of the fran- chises — requires a judicial investigation and decree, bj a court of competent jurisdiction, and may originate in a variety of causes; but the decisions in which a forfeiture has been declared are either for mis-user or non-user of the corporate franchises, and all turn upon the principle that a charter is liable to forfeit- ure whenever the grantees fail to act up to the end or purpose for which they were incorporated.'' Fraud, collusion, and misman- agement on the part of the stockholders or directors, gross trans- gressions of the charter in borrowing money or speculating with the corporate funds, fraudulent oiScial statements as to the affairs of the company for imposing upon and deceiving the public, all these may be enumerated as among the instances of mis-user, which justify a judicial forfeiture. As to non-user of the fran- chises, the rule is of course less strict ; and rarely would the charter be forfeited on this account unless some element of mis-user were also present; for in general to work a forfeiture something more than mere casual negligence or honest error must be shovvTi ; some- thing more, even, than a slight abuse of the charter privileges which has neither produced nor tends to produce mischief to any one. But the discontinuance of business for an unreasonable length of time would be an instance of non-user calling properly for a decree of forfeiture ; if, inded, a dissolution might not, upon the principle of surrender, be well enough presumed without it.^ There are a number of cases where high-handed and arbitrary acts on the part of influential officers or members of a corporation have been deemed insufficient for a sweeping forfeiture of the franchises; and certainly the milder methods of judicial correc- 7. See Bright. Fed. Dig. Corp. mercial Bank v. State of Mississippi, VIII.; Lum V. Robertson, 6 Wall. 6 Sm. & M. 613; Abb. Dig. Corp. 296. 277; 2 Kyd, 474; 2 Kent Com. 312: 8. lb. And see Commonwealth v. Ang. & Ames, § 774 et seq.; State Commercial Bank, 28 Penn. St. 383; Bank v. State, 1 Blaekf. 270; Com- State v. Commercial Bank, 10 Ohio, 535. 368 CHAP. XI.] MEilBERS OF CORPORATIONS. § 243 tion, as by compelling refractory individuals in power, are pre- ferred wherever available. The government which created the corporation, and which of course can waive the conditions of a violated charter, must insti- tute proceedings for forfeiture ; and the remedy is either by scire facias^ — the usual process where there is a legally existing corpo- ration, — or by quo warranto. Our local statutes, however, affect somewhat the mode of procedure; the tendency in many States being to commit jurisdiction over the forfeiture of corporate fran- chises to chancery instead of the common-law courts, — that is, to the highest tribunal of the State in the exercise of its equity, not its common-law functions ; ^ since equity has a more flexible dis- cretion for meeting the various controversies which may arise. The fifth and last mode by which a corporation may be dissolved is by expiration of its term of duration. This term being defi- nitely fixed by its charter or by general law, a complete dissolu- tion takes places when the prescribed limit is reached ; and all the usual consequences follow, unless specially provided against. It is beyond the power of the legislature by renewing the charter, afterwards, to revive the corporate debts and liabilities, any more 9. Cooper v. Curtis. 30 Me. 488 ; a judicial forfeiture of corporate Ang. & Ames, §§ 777, 778; 2 T. R. franchises are these: Failure to ful- 515: Morawetz, § 640; Terrett v. fil duties assumed and owinp to the Taylor, 9 Cr. 51; 2 Kent Cora. 313, public, State v. Pawtucket Corpora- 314 ; Wilde V, Jenkins, 4 Paige, 481 ; tion, 8 R. I. 182; 32 Mich. 248; 1 Bl. Com. 485; Abb. Dig. 283; Slee Turnpike Co. v. State. 3 Wall. 210: V. Bloom, 5 Johns. Ch. 380. See, as or obligations imposed for reasons of to remedies, supra, § 241. sound public policy, State v. Milwau- In England, Parliament may dis- kee R. R., 45 Wis. 590. For unau- solve a corporation and deprive it of thorized exercise of a franchise or its franchises against its consent. total insolvency, see Morawitz, §§ But in this country, State legisla- 639-655 and cases cited; Taylor, § tures are restrained from doing so 432. by the constitutional provision as to As to the common-law or chancery impairing the obligations of con- procedure in such cases, see Mora- tracts. Dartmouth College v. Wood- wetz, ?§ 656-659; Ang. & Ames, §§ ward, 4 Wheat. 658. See § 240, 731-765, 778; High's Extraordinary- supra. Legal Remedies, §§ 5D1-761. Among causes deemed suflScient for 24 369 § 244 THE LAW OF PERSONAL PROPERTY. [pART II. than in the other cases of dissolution already noticed.^ Charters may be expressly limited by some contingency; but where a for- feiture is threatened upon condition subsequent, or where dissolu- tion per se is in doubt, there should be a judicial determination in order to forfeit.^ § 244. Effect of Dissolution upon Corporate Property. The effect of the dissolution of a corporation upon the corpo- rate property differs according to whether that property be real or personal. The theory of the common law is that, upon the dis- solution or civil death of a corporation, all the real estate remain- ing undisposed of reverts to the original grantor or his heirs, while the personal property vests in the sovereign gTanting the charter, — in England the king, in this country the people. The debts due from the corporation are extinguished altogether, and the suits of creditors already pending fall to the ground.^ But this rule, which was tolerable only so long as few trading corpo- rations existed and none were dissolved, has long since become obsolete; and by means of statutes, and the interposition of the chancery courts, these mischievous consequences are now, for the most part, avoided. In England insolvent or dissolved moneyed corporations have not been practically subjected to this species of wholesale confiscation ; and our own tribunal of last resort declares that a statute distributing the property of such a corporation amongst its stockholders, or giving it to a stranger, or seizing it 1. Ang. & Ames, § 778 ; Bank v. sequences of a dissolution are both Lockwood, 2 Harring. 8; Bank of substantial and formal. The sub- Mississippi V. Wrenn, 3 Sm. & M. stantial consequences are that the 791; Morawetz, § 630; People v. business is wound up, and all the Walker, 17 N. Y. 502; La Grange R. legal relations subsisting in respect V. Rainey, 7 Coldw. 432; Matter of of the corporate funds are liquidated. Brooklyn R., 81 N. Y. 69. The formal consequences are that the 2. lb. ; Morawetz, § 631. corporation can no longer act as such 3. Co. Lit. 13 b; 1 Bl. Com. 484; 2 either before the courts or in business Kyd, 516; Morawetz, § 660; Abb. transactions. Taylor, § 435; National Dig. Corp. 2%; 2 Kent Com. 307; Bank v. Colby, 21 Wall. 614. Ang. & Ames, §§ 195, 779. The con- 370 CHAP. XI.] MEMBERS OF CORPORATIONS. § 244 to the use of the State, would as clearly impair the obligation of contracts as a law giving to heirs the effects of a deceased natural person to the exclusion of his creditors.'* Equity relieves at the petition of stockholders and creditors against the inequitable consequences of a dissolution; and the legislature may reserve the assets, in any special case, so as to enforce the liquidation of outstanding claims, or, as is frequently the case, may pass general statutes for that purpose.^ In effect, the prevailing rule in this country is, that upon the dissolution of a business corporation its effects are a trust fund in equity for the pa;)Tnent of creditors, who may follow them into the hands of any one not a bond fide creditor or purchaser without notice; all rights under the defunct corporation are fixed at its dissolution; and the corporation has a sort of nominal existence for the pur- pose of closing its concerns after the manner of administration upon the estate of a deceased individual.^ 4. Curran v. State of Arkansas, 15 How. 312 ; Bacon v. Robertson, 18 How. 480; 2 Kent Com. 307, n. ; Ang. & Ames, § 779, and cases cited ; Lin- coln V. Fitch, 42 Me. 456; Abb. Dig. Corp. 298. 5. See Pomeroy v. Bank of Indiana, 1 Wall. 23; Nevitt v. Bank of Port Gibson, 6 Sm. & M. 513; Robinson V. Lane, 29 Ga. 337. 6. Crease v. Babcock, 23 Pick. 334; Ourran v. State of Arkansas, 15 How. 312 ; Bacon v. Robertson, 18 How. 480; Ang. & Ame>i, § 779; Morawetz, §§ 662-664; Pomeroy v. State Bank, 1 Wall. 23 ; Connecticut Life Insur- ance Co. V. Dinscomb, 108 Tenn. 724, 69 S. W. 345; Craycraft v. National Building & Loan Ass'n, 117 Ky. 229-, 77 S. W. 923. Just before the dissolution takes place, the corporation may assign to a trustee, for the benefit of the stock- holders, the corporate property, or through its proper officer indorse over the unpaid paper; and thus enable the trustee to sue in his own name and distribute the effects, notwith- standing a dissolution, to those who occupy more properly than the State the position of next of kin to thia artificial being; for our policy is to give stockholders all the distributive balance. Ingraham v. Terry, 11 Humph. 572 ; Cooper v. Curtis, 30 Me. 488; Folger v. Chase, 18 Pick. 66. And see Lum v. Robertson, 6 Wall. 277. But notwithstanding the charter had expired bi'cauSe of for- feiture or otherwisi', a corporation was made liable under a national bankrupt act (now repealed) in th« United States courts; so that, if the corporation were bankrupt, its prop- erty would be taken wherever found, even in the hands of a State receiver, and made subject to distribution among creditors accordingly. The 371 § 245 THE LAW OF PEESONAI. PROPERTY. [PART II. Where there is no insolvency or bankruptcy the title to the corporation assets after dissolution is in the stockholders as ten- ants in common, subject to the rights of creditors ; '' and the assets of the corporation may be assessed for taxation at the domicile of the sole stockholder.^ To avert the common-law consequences of a dissolution more completely, the statutes of many of the States now provide, at length, for the vpinding up of dissolved companies, the collection of assets, the liquidation of debts, and the just distribution of the corporate assets.^ Directors who carry on the business after the legal dissolution of the corporation and before its affairs are finally wound up, are bound to account for the proceeds of such business.^ § 245. Consolidation or Amalgamation of Private Corporations; Secession. The legislative union or merger of two corporate bodies in one new one is termed in this country " consolidation," the correspond- ing word used in England being " amalgamation." The amalga- mation or consolidation of corporations cannot be accomplished unless by express grant of the legislature or necessary implication ; since the delegation of corporate powers by one company to bankrupt law of 1867 explicitly de- 7. Baldwin v. Johnson, 95 Tex. 95, clared that, whenever any corporation 65 S. W. 171. shall be declared bankrupt, all its 8. Ewald v. Louisville, 172 Ky. property and assets shall be distrib- 451, 181 S. W. 1095. uted to the creditors of the corpora- 9. Morawetz, § 665, and cases tion in the manner provided with cited; Folger v. Chase, 18 Pick. 66; respect to natural persons. See Mariners' Bank v. Sewell, 50 Me. Bankruptcy Act of 1867, § 37; 230; Blake v. Portsmouth E. R., 39 Bump's Bankruptcy, 1, 421; Thorn- N. H. 435; Ramsey v. Peoria Ins. hill V. Bank of Louisiana, 3 Bank R. Co., 55 111. 311; Tuscaloosa Ass^n v. 110. And see Warrant Finance Co.'s Green, 48 Ala. 346. And see Mason Case, L. R. 4 Oh. 643, as to the Eng- v. Pewabie Co., 133 U. S. 50. lis'h practice. See also our later 1. Mason v. Pewabie Co., 133 U. S. United States bankruptcy legislation 50. now (1917) in effect, as set out in Collier on Bankruptcy. 3Y2 CHAP. XI.] MEMBEltS OF CORPOltATlOXS. § 245 another is not within its ordinary functions nor included among the objects for which it was created. Furthermore, the consent of the stockholders of each corporation is generally required in this country to complete the act of consolidation.^ The effect of consolidation, when accomplished, is to confer the united powers upon that corporation which takes the name of the consolidated company; also to transfer the debts as well as the assets of the old corporation, unless otherwise specially provided against.^ Nevertheless, the question resolves itself largely into the construc- tion of the legislative act.'* Railroad companies frequently seek to consolidate in these days for the purpose of bringing a large transportation route under one management; but we must here distinguish between that which constitutes a legal consolidation or amalgamation of corporations and the mere connection of con- tinuous routes by lease or otherwise, as common carriers.^ Com- mon carriers once more owe a duty to the public which they are not permitted to abnegate at pleasure ; and it is well settled that a railroad company cannot sell or lease its entire property and franchise to another corporation without express authority of law.^ 2. Canal Co. v. Fulton Bank, 7 though a corporation of that State. Wend. 412; Morawetz, §§ 533, 543- See Mullor v. Dows, 94 U. S. 447; 565; Fisher v. Evansville, &.c., R. R. Sage v. Lake Sliore R., 70 N. Y. 220; Co., 7 Ind. 407; Bishop v. Brainerd, Quincy Bridge Co. v. Adams, 88 111. 28 Conn. 298; Railroad Co. v. 619. Consolidation of corporations. Georgia, 98 U. S. Supr. 359; Shields Book 2G, N. Y. Rpts., Bender ed., note, V. Ohio, 95 U. S. 319; Racing R. R. p. 955. Monopolies, purcliase of stock V. Farmers' Trust Co., 49 111. 349; in other companies. Book 30, N. Y. Kean v. Johnson, 1 Stoekt. 401; Rpts., Bender ed., note, p. 1111. Chappcll's Case, L. R. 6 Ch. 9-02. If 3. Robertson v. City of Rockford, a corporation has been consolidated 21111.451. See Abb. Dig. 202 ; sup^-o, with others under a law which con- § 232. tinues all its liabilities, an action 4. See Morawetz, §§ 543-565, and commenced before the dissolution is cases cited : Taylor. § 403 e« srr/. not thereby abated. Baltimore R. v. 5. See 2 Redf. Railw., 3d ed., 656; Musvselman, 2 Grant, 348. Pearce v. Madison R. R. Co., 21 How. A corporation formed by the con- 441. solidation of several companies under 6. Central Trans. Co. v. Pullman the laws of different Stated is treated Car C^., 139 U. S. 24; Railway Cos. within each State jurisdiction as v. Keokuk Bridge Co., 131 U. S. 371. 373 § 245a THE LAW OF PERSONAL PROPERTY. [PAUT II, Nor is a corporation in debt permitted to transfer its entire prop- erty by lease or otherwise so as to prevent the application of the property to the satisfaction of its own debts/ The secession of corporations, too, gives rise to legal controver- sies; and the rule is that, where any portion of the members secede and erect a new corporation, the corporate property will not be transferred and distributed in consequence, but, in the absence of mutual stipulations to the contrary, will remain with the old corporation.^ The best test for determining which of the two divisions represents the legitimate succession in a case of this sort is to ascertain which one has maintained the regnilar forms of organization throughout.^ § 245a. Holding Companies. The success of the Government in the various .mti-Trust suits in breaking up trusts and other combinations of capital of that nature led to the device of holding companies, so-called. These are simply corporations of a large capitalization which do no business whatever, and have no property except the stock of vari- ous operating companies which it is desired to combine under one management. This form of corporate organization is still prac- ticed to a large extent, although it may be illegal, as being an offense against the anti-trust laws, under various decisions of the Supreme Court. The courts are very quick to look through the shell or sham of such a corporation, especially in case of fraud, and to administer the rights of the parties as if it did not exist, disregarding the separate entities of the various subsidiary com- The same reasoning applies to cor- 293, 111 N. E. 713 (corporation act of porations generally. lb. an added corporation) ; Hyams v. 7. Chicago R. v. Third Nat. Bank, Calumet & Hecia Co., 221 Fed. 529, 134 U. S. 276. 137 C. C. A. 239; Colgate v. U. S. 8. Abb. Dig. Corp. 818; Ang. & Leather Co., 75 N. J. E. 229, 72 Atl. Ames, § 194; North Hempstead v. 126 (N. J.'s power to consolidate); Hempstead, 2 Wend. 135; Smith v. Donald Maekay v. New York, N. H. Swormstedt, 16 How. 288. & H. R. R. Co., 82 Conn. 73, 72 Atl. 9. Kerr v. Trego, 47 Penn. St. 292. 583, 24 L. R. A. N. s. 768, n. See Gray v. Hemenway, 223 Mass. 3Y4 CHAP. XI.] MEMBEBS OF CORPORATIONS. § 246 panies and treating the whole as one company, which it really is. So, where fraud is charged, the court may grant an order to an aggrieved stockholder in the holding company to examine the books of the subsidiary companies.' § 246. Revival of Private Corporations. It remains only to say a few words concerning the revival of a corporation. Mr. Justice Story says that it is true that a cor- poration may retain its personal identity, although its members are perpetually changing; for it is its artificial character, powers, and franchises, and not the natural character of its members, which constitute that identity; and that for the same reason corporations may be different, though the names, the oflScers, and the members of each are the same.^ The same sovereign power which created the original corporation may, after its dissolution, revive or renew the old corporation or create a diiferent one in its place; and the revival of an old corporation may be either with the old or a new set of corporators, and with the old powers alone, or the superaddition of new powers.^ The question whether a new corporation is thus created or an old one revived is an important one; for in the latter case all the rights and responsibilities of the old corporation become renewed, while in the former case this would be impossible.'* All this is a matter of statute construction for ascertaining the legislative intent; and we may add that an old corporation may be as well revived under a general law as a special charter.^ A dissolved corporation is not to be renewed or revived without the consent of the corporators ; for no charter is a matter of legislative compulsion.^ 1. Martin, v. D. B. Martin Co., 4. lb.; Smith v. Chicago, Ac. R. R. fDol. Oh. 1914) 88 Atl. 612. Co., 18 Wis. 17: Union Canal Co. v. 2. Bellows V. Hallowell Bank. 2 Younj:, 1 Wliart. 410. Mass. 43. 5. Miller v. English, 1 Zabr. 317. 3. Ang. & Ames, § 780; Kinp: v. Sfo Low v. Conn. River R. R. Co.. 46 Pasmore, 3 T. R. 199, 241; 2 Kyd, N. H. 284. 516; Abb. Dig. Corp. 816-819; Mora- 6. Morawotz. § 666; People v. Man- wetz, §§ 566, 666. hattan Co., 9 Wend. 381. 375 § 247 THE LAW OF PERSONAL PROPERTY, [PART IL § 247. Summary as to the Kinds of Ownership in Personal Property. We have thus endeavored to place before the reader, in this and the three preceding chapters, the number and connection of the owners of personal property; pursuing a plan similar to that which our common-law writers are wont to apply to real estate. We have shown that personal property may be rightfully held for beneficial enjoyment, not only in severalty (or by a single indi- vidual in his own right), but by joint owners and owners in com- mon, corresponding in the main to the joint tenants and tenants in common of lands and tenements ; by partners, whose facilities for managing the property together and carrying on business with it so as to buy, sell, and make profit, are far greater than those of either joint or common owaiers, and who, besides, enjoy their respective interests without being subject to that awkward con- dition of survivorship which renders the estate of joint owners so precarious; by members of a limited parttiership or of a joint- stock company, who seek to invest capital in business without themselves incurring the extensive responsibility of ordinary partners ; by ship-owners, whose peculiar rights and liabilities are to a great extent controlled by commercial usage ; and, finally, by members of a corporation, that fictitious being of statute law and complete image of State or municipal sovereignty, which furnishes in a compact organization, in the power of perpetual succession, and in a responsibility for the individuals composing it dimin- ished to the lowest practicable point, the greatest advantages for combining the means of many for special and profitable invest- ment and enterprise in trade, commerce, manufactures, and the arts. In all of these cases the ownership of each individual in the combined personalty is on the same footing, and their rights and liabilities coexist at the same time, all, however, in due proportions. But property in things personal may, in another sense, belong to two or more at the same time ; that is, where the right to the thing itself is separated from its rightful possession ; as, perhaps, 376 CHAP. XI.] MEMBERS OF CORPORATIONS. § 247 in the case of an agent (though theoretically an agent simplj represents another), and certainly where a bailee of goods en- gages in transporting them for the true owner, or otherwise acquires a temporary right. Here a different principle of law applies, which would more properly be considered under the head of title to things personal, and which we shall, in fact, consider hereafter in other volumes ; since unity of oumership in the same degree is our present topic of discussion. Indeed, there may be partners or corporations concerned in a bailment or agency and having the immediate possession to goods, as well as partners or corporations with whom is the ultimate right of ownership or the right of property therein; and joint trustees frequently hold property for the benefit of heirs and legatees whose interests are joint or common, according to the terms of the will or other instrument which created the trust.'' 7. Upon the subject of American private corporations the reader is re- ferred at length to Angell and Ames on Corporations, a work long ago written, but still annotated by other editors in later editions; also to the fresher work of Mr. Victor Morawetz on the same subject, issued in 1882, and a still later work by Mr. Henry O. Taylor. There are various digests, such as those of the Messrs. Abbott; besides treatises on the law of spe- cial corporations, such as Rcdfield on Railways and that of Dillon on Mu- nicipal Corporations. See also late treatises of W. W. Cook and Frank White on Corporations ; S. D. Thomp- son; note to § 517a, post. All of these are American works, and in this country the business' of private cor- porations takes a wide development, and gives rise to much controversy in the courts. See further, as to title in personal property, this author's second volume on Personal Property (Original Acqui- sition, Gifts and Sales), and Schoul- er's Bailments, including Pledge, Inn- keepers and Carriers. 377 CHAPTER XII INCOME, INTEREST AND USURY. § 248, Usufruct or Income of Personal Property; General Remarks. Personal property, like real estate, has its appropriate usu- fruct, capable of being reduced to a money valuation. Some chattels, to be sure, are naturally consumed in the use ; pro- visions, food, drink, and garments, for instance; while others, not strictly of that class, wear out or deteriorate so quickly as to yield little or no perceptible return apart from an exhaustion of the thing. Of salaries, annuities, pensions, and the like, one often says that they are mere income ; meaning that, at all events, their payment continues periodically for a time, as though for one's current needs and benefit, and then must fail altogether. Patents and copyrights yield likewise only a periodical return during the term of the statute monopoly. Yet the usufruct of personal property is in most other instances of distinct appreciable value as compared with capital, and familiarly taken into account by business men as a certain percentage in value of the principal or thing itself, enhancing the market value of the latter accord- ingly. Animals of various kinds yield a profit, not only in the labor they perform, the exliibition they afford, or their valuable products, but through the propagation of their own species, which is a peculiar source of emolument. Ship-owners derive periodical profit from the vessel by transporting or letting it for transporta- tion; and a vessel, though wearing out in time, may yet outlast many a house, yielding meanwhile a recompense corresponding to a rental. Partners and business men generally expect, by turn- ing over their personal capital, to gain periodical profits, while the profits of a stock company's business are regularly declared as dividends among the shareholders. All prudent men, indeed, having capital in a civilized community, seek to invest it so as to 378 CHAP. XII.] I.NCO-MK, INTEREST AND USURY. § 249 derive a good and regular income ; and for such purposes, personal property may be found not less desirable than real. In the present age, moreover, safe investments are made in the well- secured debts, so to speak, of others, or so as to supply the mone- tary needs of enterprising men of a community, or of the State itself. These debts, represented by bonds or commercial paper, are payable with periodical pecuniary return to the lender and at least a reciprocal theoretical advantage to the borrower himself. In our courts of equity, questions as to the safe investment and reinvestment of trust funds in personal property are constantly arising, and the respective interests of beneficiaries regarding capital and income are carefully considered.^ The statement of these truths, perhaps truisms, may properly preface an exposition of the law of usufruct with especial refer- ence to the two kindred and familiar topics of interest and usury. § 249. Origin of the Practice of Taking Recompense on Loans ; Primitive Ideas as to Interest and Usury. When real estate is let by the owner to some stranger, the one loses for the time being his beneficial enjoyment of the premises, while the other gains it; and accordingly such a sum is made payable by the latter to the former as may have been agreed upon, by way of recompense, which is known as rent. Now, as to per- sonal property, a specific chattel is often loaned by the owner, the borrower paying a sum for the use of it which he is supposed to make good by liis own profits, or the enjo^^nent he derives from the thing, so that practically he reimburses himself for such a payment. In a cultivated ago money becomes the medium of exchange ; and so, instead of hiring chattels, men in the course of their business find it convenient to borrow money or cash as an equivalent or the means of procuring other kinds of property, upon which loan they hope to derive some enjoyment or profit. Whether it be land or some specific chattel, or that medium of exchange which represents them all, there is one party who gives 1. See supra, c. VII. .379 § 250 THE LAW OF PERSONAL PROPERTY. [PART II. up the temporary use of his own property, and another who takes that use and renders an equivalent in return. This statement of the transaction between borrower and lender in its simplest form may aid the reader towards reaching just conclusions on a subject which has greatly disturbed the legis- lators and statesmen of every century. Wise men of a primitive age, who would not scruple to take compensation for the hire of their cattle or the occupation of their lands, have regarded with horror the thought of paying correspondingly for the use of that which might purchase both. This was, doubtless, partly because of the peculiar and hidden characteristics which money possesses, although in truth a species of property; and, on more general considerations, because of the jealousy with which the poor man, the embarrassed debtor, and the toiler must always regard the capitalist. The Mosaic law denounced the letting of money upon usury, and yet Jews have become the greatest usurers of modern times. Ancient Rome discouraged and for a time abolished the same practice, but in the age of Roman commerce it necessarily revived and extended. Many of the fathers of the primitive Christian church considered it sinful to lend money on compen- sation, and the canon law of the Middle Ages was to the same effect; and, before the time of Henry VIIL, the common law and statute law of England made the taking of recompense under these circumstances not only unlawful, but an offence visited with very severe penalties.^ Yet in mercantile England of to-day, wealthy and prosperous, and in our own land too, wherever and whenever there is a nation of intelligent capitalists, whether Jew, Christian, or Pagan, we find them loaning upon some rate of compensation, or not loaning at all. § 250. The Same Subject. The reason why money or its equivalent yields to the lender, when left free and uncontrolled, some percentage of compensation is that common sense and the justice of the thing demand it. A 2. See Encycl. Am. " Usury ; " Blydenburgh on Usury, 1-3. 380 CHAr. XII.] INCOME, INTEREST AND USURY. § 251 man might as well be expected to give houses and lands rent free, or to put stock into a business where he was sure of making no profit and might lose the whole of it, as to hazard money by loaning it to a stranger and hope for nothing in return but the capital he advanced. The laws of trade exact compliance with this reasonable rule of requiring interest to be paid upon the principal sum advanced ; and if legislation be stringent and obstructive in this respect, various shifts and devices are found for evading the legal penalties against usury; and since men must and will borrow for their purposes, whatever be the cost, the practical consequence inevitably ensues that the prevailing rate advances in proportion to the extra risk of loss and punishment which the lender encounters. Contempt for the law follows upon contemptible legislation. It is only in countries where trade is hopelessly stagnant, or borrowers alone make the laws, that we may ever expect to find illiberal notions prevailing in this matter of interest and usury. The moment capitalists and lenders have their voice in the administration of affairs, despite the jealousy with which the poor must always regard the wealthy, the right to charge for the loan of their funds is sure to be promptly con- ceded to them.^ § 251. Modern Legislation Distinguishing Interest and Usury. Thus far, then, have we emphatically progressed, that in England and the United States persons are no longer forbidden to lend money upon a recompensa But we have stood in both 3. The usury laws of Rome were the over-scrupulous Christians appear doubtless founded in heathen policy. to have overlooked : where the folly But as legislators in England and the of the man who buried trust money United States have been largely in- in a napkin, instead of plaeinsr it fluenced in opposin^f interest or usury where it would have jjained "usury" by arguments drawn from the sup- for the owner, was rebuked (see St. posed prohibitions of the Holy Scrip- Luke xix. 23). If is rather the ex- tures (or rather of the Mosaic code), tortion of greedy and avaricious capi- it micrht be well to call attention to talists which the Scriptures condemn that familiar parable of the servants than any universal practice of taking with the talents, which so many of intcre.'^t for the loan of money. 381 § 251 THE LAW OF PERSONAL PROPERTY. [PART H. countries upon a technical distinction which the statutes com- monly make between interest and usury. That compensation which is paid by a borrower to a lender, and generally by one indebted to his creditor, for the use of money, is at this day called interest, provided the rate be a legal one and conform to the law ; while such compensation, if in excess of the legal rate, is stigma- tized as usury, and of course is attended with the legal penalties, whatever these may be. But for such statute limitations, interest and usury would be correlative terms, since no one could take compensation at all; and as every State has its own usury laws, we find different rates of percentage established, theoretically based upon the demands of trade, though in many localities fall- ing far short of these demands and subject to constant evasion. In some States the legal rates of interest rise as high as ten, or, by special contract, even twenty per cent., in others it has been as low as five per cent. ; but the " lawful rate " usually prevail- ing is and has been in this country what it remained in England for more than half a century previous to the passage of the Statute of Anne in 1713 ; namely, six per cent.'* So frequently are the usury laws modified in these later times, — though, for obvious reasons, not so rapidly as the wants of a mercantile com- mimity call for a change, — that to attempt to find any moral basis upon which to predicate the statutory offence seems hardly pos- sible ; and it can only be said that he who transcends the arbitrary rates established by a local legislature is technically a taker of usury instead of interest, and becomes a victim to the penalties of the law, which in some jurisdictions are very stringent. The latest policy, however, in England and America, appears towards the complete abolition of interest and usury laws, so as to leave parties who stipulate for a loan free to regulate their contracts according to their own wishes; and, in effect, to estab- lish a free trade in money, allowing the mercantile law of supply and demand to regulate the standard of interest rates, uncon- 4. See Bouv. Diet. "Interest," "Usury; " Blyd. Usury, 1-3; Stat. 12 Anne, c. 16. 382 CHAP. XII.] INCOAIE, INTEREST AND USURY. 251 trolled by government. By an act passed in England on the 10th day of August, 1854, all the laws against usury in that country are repealed. But where interest is now payable upon any con- tract, express or implied, for payment of the legal or current rate of interest, or where interest is payable by any rule of law, the same rate is recoverable as before the act.^ In this country, too, there are several States (and their number is likely to increase) whoso legislatures adopt the plan of leaving a " legal rate " as before for ordinary transactions, while permitting parties to stipu- late in writing for any different rate they please ; or else, when inclined to be somewhat more conservative, permitting written stipulations to be for any different rate not exceeding another rate, say that of ten per cent.^ 5. Stat. 17 & 18 Vict., c. 90; Wms. Pers. Prop., 5th Eng. ed., 89. See Aylesford v. Morris, L. R. 8 Ch. 484; London R. v. South Eastern R. (1893), App. C. 429. 6. One of the most 111)0 ral of these American statutes is that which went into effect in Massachusetts on the first of July, 1867. See Mass. Acts 1867, c. 56. See also Act 1870, and Mass. Rev. Laws, c. 73, § 3. Many States have limited the rate of in- terest chargeable on small loans. See, for example, Mass. Rev. Laws, c. 102, § 51, and amendments. And see sum- mary of State interest laws, in Bouv. Diet. " Interest." In other ways, Such as the mitigation of severe stat- ute penalties against the offence of usury, the progress of an enlightened public sentiment on this subject is plainly perceptible. It is as yet too early to judge of the probable result of these new ex- periments in usury legislation. While, in the main, parties who are left free to make their own bargains learn speedily what is for their mutual ad- vantage, it is doubtless a legitimate province of the legislature to guard those who are peculiarly exposed to a creditor's oppression and extortion. But wiiile incompetent parties should be thus protected against their con- tracts generally, any attempt of the public to interfere, not on behalf of a careless and improvident class of pri- vate individuals, but with reference to a class of private transactions in which the most shrewd and intelli- gent might engage on either side as well as tho timid and inexperienced, certainly appears dangerous. It is said that Solon, in the laws which he gave to the Athenian republic, al- lowed parties to regulate the rate of interest by their own contracts. This, however, we are told, ih the only known (exception to tht> universal prac- tice among the civilized nations of ancient times, where the taking of int<»rest was pcnnitted at all. — namely, of drawing a distinction be- tween legal and ill(>gal rates, and punishing thast> who overstepped the mark; and a distinguished scholar of 383 § 253 THE LAW OF PERSONAL TROPERTY. [PART II. § 252. Interest and Usury to be Considered in Order. With the preliminary caution to the reader that he stands upon contested ground, we proceed, then, to consider the leading doc- trines of the English and American courts touching this much controverted subject of interest and usury; first treating of in- terest, or that rate for the use of money which falls within the local statute, and then passing to usury, or the rate which falls without the statute and is illegal. § 253. As to Interest; When Payable on Contracts. I. Concerning the payment of interest, it may be stated in general that interest is payable whenever by express agreement between themselves the parties have stipulated that it shall be paid by the one to the other. Any express promise of this sort is usually, though not always, expected to be in writing. A writ- ten contract to pay interest is enforceable according to its tenor. Interest is likewise allowed where, from the course of dealings between the parties, a promise to pay interest is implied. And hence it may be generally said that interest as incident to a debt is founded upon the agreement of the parties, express or implied.^ modern times states that, even among on the whole, against free trade in the Athenians, usage fixed the rate of money, and favor establishing rates interest at twelve per cent, in certain within more or less liberal limits; eases, and at eighteen per cent, in though the consequence we should others, and that the public voice cried prefer to take — so different are the out against all who did not conform modern from the ancient methods of to this usage, — as, indeed, it might. trade and commerce, not to add of De Pauw. Reeh. ; Phil. 5, § 2 ; Blyd. social discipline — is that of learning Usury, 3-5, and authorities cited. In some lessons from our own experience. Rome all sorts of experiments were Penalties are imposed by statute tried ; at one time there were no for usury, etc., but a contract to pay l-aws against usury ; at another time interest is not a penalty, though in- intcrest was not allowable at all; terest is sometimes imposed after a but in the time of Justinian rates penal fashion. Robbins v. Maddy, 95 were established within liberal limits, Kan. 219, 147 Pac. 826. while the practice of taking more ex- 7. See Bouv. Diet. "Interest;" orbitant interest was punished. Jones v. Mallory, 22 Conn. 386; Hitt Blyd. ib. We must then admit that v. Allen, 13 111. 592; McLaughlin v. the lessons of human experience are, Sauve, 13 La. Ann. 9'9. The law of 384 CHAP. XII.] INCOME, INTEREST A^"D USURY. § 253 Thu's, an agreement to pay interest may be inferred from a course of dealing between the parties, where interest has been charged and allowed before under the like circumstances.^ Mercantile usage is a good ground upon which to charge inter- est; by which we mean usage in the particular locality and with reference to the particular class of transactions under which the question of interest payment arises.^ And as usage bears in the direction of an implied contract, we may add that the custom of a creditor to charge interest which has not been brought home to the debtor will not, of itself, authorize the recovery of interest.^ Xor, of course, can mercantile usage avail to alter the express agreement of the parties in this respect.^ In the matter of debts, something is usually deemed essential between the parties to fix a time certain for payment; and inter- est does not begin to nm, in the absence of their agreement, before this time certain has arrived. But where a party stipulates to pay a fixed sum by a certain day, and fails to do so, interest is chargeable against him.^ As to debts generally, interest is not England does not allow interest ex- interest upon debts is not suspended cept by statute or contract, or the as between citizens of the same bel- law merchant. Gosman, Re, 17 Ch. ligerent. Williams v. State, 37 Ark. D. 771. Or by way of award as dam- 463. ages for the wrongful withholding of 9. Watt v. Hoch, 25 Penn. St. 411; money. Webster v. Life Assurance Ayers v. Metcalf, 39 111. 307; Veiths Society, 15 Ch. D. 169. v. Hagge, S Clarke. 163; Esterly v. 8. Esterly v. Cole, 3 Comst. 502 ; Cole, 3 Comst. 502 ; Fi.sher v. Sargent, Carson v. Alexander, 34 Miss. 528. 10 Ciish. 250. Common knowledge as But an action will not lie to recover to rate of interest, see Chamberlayne interest some time after the principal Evid., § 794. has been paid and accepted, on anj' 1. Rayburn v. Day, 27 111. 46. implied contract. Abbott v. Wilmot, 2. Keener v. Bank of United States, 22 Vt. 437; Robbins, &e., Co. v. 2 Penn. St. 237. Brewer, 48 Me. 481. 3. .Stevenson v. Maxwell, 2 Sandf. Interest, it is held, continues to Ch. 273. Payment promised upon a run in time of civil war on debts due future contingent event ia not at a from a citizen of one belligerent to a time certain; and a suitable demand citizen of the other. Spencer v. should bo made before the Sum can Brower, 32 Tex. 663. See Ward v. carry interest. London R. v. South Smith, 7 Wall. 447; Bean v. Chap- Eastern R. (1893), App. C. 429. man, 62 Ala. 58. The running of 25 385 § 253 THE J.AW OF PEKSO.NAL PROPERTY. [PAKT II. recoverable where there is no presumption that the debt should have been paid sooner; and upon an unliquidated or open or disputed account, no such presumption arises. It is otherwise, however, on an account stated or other liquidated sum, whenever the debtor knows precisely what he is to pay and when he is to pay it; and here interest is usually recoverable.'* Where no time certain is fixed for payment of a debt, the creditor may make it certain by a demand of pa^Tnent, or something equivalent ; and interest will then begin to run from the time such demand was made, unless the debtor had sufficient excuse for delaying longer. Any unliquidated claim for service rendered requires a demand showing what is claimed, in order to set interest running.^ Demand having been properly made, the debtor is in default if he neglect to pay; and hence it may be said that the debtor's default in the payment of what is due is a good reason for claim- ing interest from the time of his default.^ But upon a running account and before a final computation of balances between the parties, there is usually no default, and consequently no interest payable/ The presentation of a bill or account with the balance struck is a frequent method of demand. Where a definite credit is agreed on, interest is calculated from the expiration of the credit.^ And a single cash sale will bear interest immediately upon a delivery of the goods.^ Mercantile us.age, however, goes far towards controlling this whole subject; and each case must 4. See Bouv. Diet. "Interest;" 2 Adams v. Fort Plain Bank, 36 N. Y. Burr. 1085; McClintock's Appeal, 29 255. Penn. St. 360; Brainerd v. Champlain 7. This does not prevent parties Trans. Co., 23 Vt. 154; Davis v. from expressly stipulating for inter- Walker, 18 Mich. 25; Esterly v. Cole, est as items are entered. Willard v. 3 Comst. 502; Crosby v. Mason, 32 Pinard, 65 Vt. 160. Conn. 482. See Vaughan v. Howe, 20 8. See Casey v. Carver, 42 111. 225; Wis. 497. David v. Conard, 1 Iowa, 336; Bate 5. Soule V. Soule. 32 N. E. 663, 157 v. Burr, 4 Harring. 130. Mass. 451; Farr v. Semple, 81 Wis. 9. Parke v. Foster, 26 Geo. 465; 230. Foote v. Blanchard, 6 Allen, 221; 6. See Evans v. Beckwith, 37 Vt. Waring v. Henry, 30 Ala. 721. 285; Maxey v. Knight, 18 Ala. 300; 386 CHAP. XII.] INCOME, INTEREST AND USUEY. § 254 depend to a considerable degree upon its own merits ; reasonable delays being excused, and our business usage seeming to sanction the idea that where a bill is sent to a customer for a debt or bal- ance struck, no interest shall be computed in addition unless upon some express claim or warning to the creditor, or when payment is vexatiouslj dilatory, and dunning or a suit becomes needful. § 254. The Same Subject. As instance of the foregoing rules, the loss on a policy of insurance, if payable at a time expressly fixed, will bear interest presumably from that time.^ Where the contract is to pay after so many day*' notice, interest would not be payable luitil after the expiration of that period." On money due for labor, interest may be recovered after a demand of payment made at the expira- tion of a reasonable time."' And on cash advances interest is usually allowable from the date of such advance.'* But in ordi- nary cases, where there is no express promise to the contrary, a party should not generally be made liable for interest before maturity of the debt, or until he becomes in some manner put in default for not paying the principal.^ A debtor may, however, under extreme circumstances, be at fault by neglecting to ascer- tain the amount of his indebtedness ; so that his mere readiness to pay will not always suffice to absolve him from interest.^ 1. Peoria, &c., Ins. Co. v. Lewis, 18 R., 20 N. Y. 463; Hunimpl v. Brown, III. 5,53 ; Swamscot Machine Co. v. 24 Penn. St. 310. Partridge, 5 Fost. 369. See Bright v. James, 35 R. I. 492, 2. See Cruikshank v. Comyns, 24 81 Atl. 316 (default on a definite pay- Ill. 602. ment) ; Bradley v. McDonald, 157 3. Ford V. Tirrell, 9 Gray, 401. App. Div. 572, 142 N. Y. S. 702; Hall 4. Field v. Burnam, 3 Bush, 518; v. Graham, 112 Va. 560, 72 S. E. Grimes v. Hagood, 19 Tex. 246. But 105; I^e v. Hill, 92 S. C. 114. 75 S. E. see Hubbard v. Charlestown Branch 273 (disputed items) ; Stoddard v. R. R. Co., 11 Met. 124. Sagal, 86 Conn. 346, 85 Atl. 519. 5. Gay v. Gardiner, 54 Me. 477; As to liquidated or unliquidated Hollingsworth v. TTammnnd, 30 Ala. accounts, s'ee Buck Co. v. Tietge, 156 668. N. W. 313 (Iowa, 1916); Kuhn v. 6. See MeMalion v. New York, &c., Powell, 111 N. E. 639 (Ind. App. 387 § 255 THE LAW OF PERSONAL PEOPERTY. [part II. § 255. Rule as Affected by Statutes Permitting a Higher Rate of Interest. Where the law allows parties to establish a higher rate than the regular legal or statute rate of interest, and they make a contract stipulating for payment at the higher rate on a day certain, it would appear from some eminent English and American author- ities that, on default of payment, the rate fixed by statute in the absence of contract, and not the higher rate, continues from the day when payment was due, unless the contract was explicit in 1916) ; Chamberlain v. Des Moines, 778, 117 C. C. A. 560' (discretion of 172 Iowa, 500, 154 N. W. 766; Hoover equity); McCowen v. Pew, 18 Cal. App. 482, 123 Pac. 354; Dame v. Wood, 75 N. H. 38, 70 Atl. 1081. As to unreasonable delay or defaxilt in payment of amount due, see Inde- pendent Five & Ten Cent Stores of K Y. V. Earles, 57 Ind. App. 241, 106 K E. 730, 1087; Wakefield v. Spoon. 100 S. C. 100, 84 S. E. 418; Simon V. Etgen, 213 N. Y. 589, 107 N. E. 1066; Rector v. Duntley Co., 189 111. App. 562 ; Guynn v. Daugherty, 53 Ind. App. 598, 102 N. E. 147; Na- tional Soldiers' Home v. Parrish, 194 Fed. 940, 114 C. C. A. 576. See further Bellevue Mills v. Bal- timore Trust Co., 214 Fed. 817 {trust company) ; Burr v. Commonwealth, 212 Mass. 534, 99 N. E. 323 (re- strained judicially) ; McGonnell v. Railways Co., 234 Pa. 396, 83 Atl. 282; American Iron Co. v. Air Line R., 233 U. S. 261, 34 S. C. 502 (sale on a State credit) ; DeWitt v. Key- stone ISTat. Bank, 243 Pa. 534, 90 Atl. 340; Galpin v. Chicago, 159 111. App. 135. 94 X. E. 961 (ownership of a fund in dispute) ; Brown v. First Nat. Bank, 49 Colo. 393, 113 Pac. 483 (misappropriation of fund) ; Stone- broker v. Littleton, 119 Md. 173, 86 Atl. 150 (sale of stock). Co. V. Neill, 87 S. E. 855 (W. Va. 1916) ; Simon v. Etgen, 213 N. Y. 589, 107 N. E. 1066 (sixm ascertain- able) ; Geohegan v. Union Ry. Co., 266 111. 482, 107 N. E. 786; Anthra- cite-Lumber Co. V. Lucas, 249 Pa. 517, 95 Atl. 80; Wright v. Tacoma, 87 Wash. 334, 151 Pac. 837; Roe v. Snattinger, 91 Kan. 567, 138 Pac. 581 ; Casualty Co. v. Beattie, 75 Wash. 166, 136 Pac. 1153 (a can- celled insurance policy) ; Caldwell & Drake v. Pierce, 154 Ky. 328, 159 S. W. 692; Scott v. Reynolds, 163 N. C. 502, 79 S. E. 960; People v. Willcox, 153 App. Div. 759', 138 N. Y. S. 1055 ; People v. Willcox, 207 N. Y. 943, 101 N. E. 174; Bennett v. Federal Coal Co., 74 S. E. 418 (W. Va. 1912) ; H. C. Browne & Co. v. Jno. Sharkey Co., 58 Ore. 480, 115 Pae. 156 (as- signee) ; People v. Willcox, 207 N. Y. 743, 101 N. E. 174 (arbitration of claim). Where sum is easily ascer- tainable interest is usually allowed now. See Geohegan v. Union R. R. Co., 266 111. 482. 107 N. E. 786 (delay in suit for which defendant was not to blame) ; Pennsylvania Steel Co. v. New York City R R. Co., 198 Fed. 388 CHAP. XII.] INCOME, INTEEEST AND USTJET. § 255 that respect or some new understanding is created/ But on this point the authorities are somewhat in conflict, and a decision might turn upon the interpretation of a local statute or of the particular contract. The well-considered determination of the Massachusetts courts favors the opposite construction, and relaxes as against the lender; in other words, where a contract stipulates a certain rate of payment, such rate continues until payment or judgment ; and such is the rule later announced of many other States.^ Conform?ahly to the tenor of most legislation upon this subject, the inference is, in absence of express stipulation, that only the regular statute rate of interest was contemplated under the regular rules of such allowances.^ But if the contract contemplated pay- ment of less than the statute rate, that contract, so long as cul- pable delay cannot be alleged against the debtor, should be re- spected.^ And wherever a higher rate of interest is expressly 7. Brewster v. Wakefield, 22 How. 118; Ludwig v. Huntzinger, 5 W. & S. 51; Cook V. Fowler, L. R. 7 H. L. 27. 8. See the learned opinion of Gray, C. J., in Union Institution v. Boston, 129 Mass. 82, where (in a case rela- tive to mortgage interest) the au- thorities on each side are fullj'^ stated. The English case of Cook v. Fowler, supra, is here criticised. But the Supreme Court of the United States supports a similar view. Brewster V. Wake field, sup>-a. That rule has been adopted as general in Kansas, Minnesota, South Carolina, Rhode Island, Kentucky, Arkansas, and Maine, and in Pennsylvania it long ago prevailed. In New York the question appears to be open. But see Sands v. Gilleran, 144 N. Y. S. 337. 159 App. Div. 37. In Indiana, California, Texas, New Jersey, Illi- nois, Wisconsin, Iowa. Nevada, Ten- nessee, Ohio, Michigan, and Virginia, the doctrine upheld in Massachusetts is favored ; though in some of these instances because of statute. See also Wadesboro Cotton Mills v. Burns, 114 N. C. 353, Iff S. E. 238. It is generally admitted that at all events the intent of the parties, if expressed with sufiScient clearness, will control the question. Union In- stitution v. Boston, 129 Mass. 95. 9. See Burns v. Anderson, 68 Ind. 202; 161 S. W. 26 (Tex.). 1. Pierce v. Savings Bank, 129 Mass. 425. As to the constitutionality of cer- tain American acts relating to inter- est rates, see Hubbard v. Callahan. 42 Conn. 524; Winchester v. Building As.sociation, 12 Bush. 110; Wilcox v. Murtha, 41 App. Div. 409. 389 § 256 THE LAW OP' PERSONAL PROPERTY. [PART II. reserved to be paid after maturity, such interest is recoverable unless the statute prohibits.^ § 256. Interest on Negotiable Instruments, etc. The computation of interest on bills and notes is frequently a matter of judicial cognizance ; and the principles already noticed here apply with some variations. It is usual in a bill or note to express the maker's intention of paying (whether on demand or at a time certain) "with interest," — these words signifying an intent to pay the legal or statute rate of interest ; or if the statute gives parties .the option of fixing higher rates by contract, the expression is with interest at such other rate as they may have plainly agreed upon. Here the rate is inferable from the con- tract; and the contract may of course be to pay interest from date, though the note be payable at a later day. But on a time note, where interest is not expressed, interest runs only from its maturity.^ A note payable on demand draws no interest until a demand or the institution of a suit, unless the parties have otherwise expressed their intention. But a note payable " with interest," whether on demand or on time, would bear interest from its date.'* Where a note is made payable at a day certain with less interest than the lawful rate, or without interest, and if not then paid " with lawful interest until paid," or similar expres- sions, lawful interest is to be computed from the date of the note, 2. Sheldon v. Pruessner, 52 Kan. permitted contract. As to unreason- 579, 35 Pac. 201, 22 L. R. A. 409"; able rate, see Gate v. Merrill, 109 Spooner v. Roberts, 180 Mass. 191, Me. 424, 84 Atl. 897. Interest im- 62 N. E. 4. See Harbison, Re, posed for misappropriation of funds 107 S. W. 849' (Ark.) (error) ; Went- in Earle v. Whiting, 196 Mass. 371, worth V. Manhattan Co., 218 Mass. 91, 82 N. E. 32. Cf. Moylan v. Moylan, 106 N. E. 118; Holmes v. Holt. 90 49 Wash. 341, 95 Pac. 271 (mere mis- Kan. 774, 136 Pac. 246; Atchison v. take) ; Pullis v. Somerville, 218 Mo. Golden Gate Co., 21 Cal. App. 168, 624, 117 S. W. 736; Lowndes v. City 131 Pac. 107; Cowgill v. Jones, 99 Nat. Bank, 82 Conn. 8, 72 Atl. 150. Mo. App. 390; Sanford v. Litehen- 3. See 2 Pars. Bills and Notes, 392, berger, 62 Neb. 501, 87 N. W. 305. 393. Custom, of course, cannot be set up 4. lb. And see Gardner v. Barnett, against a plain statute direction, 36 Ark. 476. though it might as presuming some 390 CHAP. XII.] INCOME, INTEEEST AND USURY. § 256 if it be not paid at maturitj.^ And so, too, the interest on a note for a particular sum, payable with interest on the happening of a certain event, should be computed from the date of the note.^ Where a note bears interest from maturity, the interest begins to run from the day of payment specified, without allowing, as it appears, for days of grace.^ It might be fair to suppose that the rate specified in a note continues after its maturity, rather than the lesser or '' legal rate," if it remains unpaid ; but this, we have seen, is by no means certain.^ Sometimes notes are made payable at some future period with interest annually or semi-annually, or with the principal payable by instalments ; and then complicated questions arise as to compounding interest, in case of the maker's default, or concerning a computation with allowance of the partial payments he has made; and of these matters we shall speak presently. Sometimes, again, they are made payable at a future day, and instead of bearing interest are sold at a discount to banks or individuals. This last is manifestly an indirect method of obtaining interest; and we presume that a timo-note thus dis- counted would bear only legal interest from the date when it fell due, whatever the rate of discount might have been.' The main inquiry is as to what the parties in the particualr contract intended expressly or with reference to custom or statute in such cases. Where an instrument is sued upon which on its face amounts simply to a mere acknowledgment of debt and not a promissory 5. Da|?gett v. Pratt, 15 Mass. 177; Ramsddl v. Hulett, 50 Kan. 440, 31 Hackenberry v. Shaw, 11 Ind. 392; Pac. 1092 ; Nye v. Kinpr, 94 Mich. 411, Pitman v. Barret, 35 Mo. 84. 54 N". W. 178. Interest acceptAW OF PERSONAL PROPERTY. [PART II. § 257. Interest Imposed by Way of Punishment. A debtor who is in default for not paying money in pursuance of bis contract is often considered liable for interest by way of indemnity, or as a punishment for wrongfully detaining what he owed. And we find interest allowed in the nature of damages for breach of contract, for unreasonable and vexatious delay in payment of debts, and in certain wrongful acts of a similar char- acter; and local statutes, too, are frequently explicit in this re- spect.^ But to make what the law deems an unreasonable and vexatious delay, and generally to justify the allowance of interest in the nature of damages, it is not enough that something was due over which there had been an honest controversy; nor that, by some mutual mistake of the parties, the whole sum due had not been paid, or too much had been received ; but there should appear to have been a want of good faith and fair dealing on the part of the one from whom interest is claimed on any such ground.^ A holder of collateral securities who appropriates the fund to his own use is liable for interest.'^ And for the wrong- ful detention of money due for goods sold and delivered, — the time of payment having been previously agreed upon, — interest may be claimed by way of damage, if not by virtue of the con- tract itself.^ But whether, for a mere non-delivery of goods by a common carrier or other person, there being no delinquency, fraud, or injustice on his part, interest is always allowable as a matter of law, is in dispute and may well be doubted.*^ Where an excessive amount is demanded, and the debtor offers to pay all that is actu- 2. Jones v. Mallory, 22 Conn. 386; 5. National Lancers v. Lovering, 10 Sammis v. Clark, 13 111. 544; Leake, Fost. 511. &c.. Orphan House v. Lawrence, 11 6. See Chicago, &c., R. R. Co. v. Paige, 80; Drury v. Cross, 7 Wall. Ames, 40 111. 249; Kyle v. Laurens 299; Rogers v. West, 9 Ind. 400; R. R. Co., 10 Rich. 382; Fowler v. Devine V. Edwards, 101 111. 138. Davenport, 21 Tex. 626; Dana v. 3. Hubbard v. Charlestown Branch Fieldler, 12 N". Y. 40; Richmond v. R. R. Co., 11 Met. 124; Passenger Bronson, 5 Denio, 55. In case of a Railway Co. v. Philadelphia, 51 Penn. loss for which a carrier is found lia- St. 465. ble, interest is recoverable upon the 4. Tarpley v. Wilson, 33 Miss. 467. value of the property from the date 394 CHAP. XII.] INCOME, INTEREST AND USURY. 257 ally due, the creditor cannot claim interest on the proper balance from the time of the demand; for the delay is through his own fault.'' Independently of this consideration of unreasonable and vexa- tious delay and wrongful conduct, interest cannot be allowed upon unliquidated damages for the non-performance of a contract; and this principle is of general application.^ And where the condition of a penal bond is the performance of some collateral act, interest upon the assessed damages does not necessarily accrue.^ In an action for the breach of a contract by whose terms damages for the breach are liquidated, interest is properly charge- able upon the amount fixed as with reference to the date when default occurred in paying such damages.^ of loss. Mote V. Chicago R., 27 Iowa, 22. 7. Lusk V. Smith, 21 Wis. 27. For the application of the rule of recov- ering interest by way of damages to debts maturing under a special con- tract, which provides for other than the usual or legal rate, &ee Gray, C. J., in Union Institution v. Boston, 129 Mass. 82, commenting upon the various discordant authorities. Large rates .«tated in case the note is not paid at maturity are penal in their nature and not to be favored in a simple default. Richardson v. Camp- bell, 34 Neb. 181, 51 N. W. 753. 8. Buckmaster v. Grundy, 3 Gilm. 626. 9. Trice v. Turrentine, 13 Ired. 212. See Ward v. Smith, 7 Wall. 447. 1. Winch V. Mutual Benefit Ice Co., 86 N. Y. 618. But a bond for the payment of a fixed sum is presumed to bear interest from its date, though no time of payment is mentioned and nothing is said therein experssly of demand or interest. Forster v. Wand- lass, 7 T. R. 117, 120; Purdy v. Phil- lips, 11 N. Y. 406. Shepard v. New York, 216 N. Y. 251, 110 N. E. 435 (waiver of inter- est) ; Gimbel v. Barrett, 218 Fed. 880 (Pa. D. C. 19'14) (carrier's over- charges) ; Kretzinger v. Emering, 169 Iowa, 59, 150 N. W, 1038 (interest recovered later than payment of prin- cipal) ; Geohegan v. Union Ry. Co., 266 111. 483, 107 N. E. 786; Wash v. Noel, 160 Ky. 547, 170 S. W. 197; Easter v. Virginian Ry. Co., 86 S. E. 37 (W. Va. 1916) (as to tort ac- tions) ; Shoop v. Fidelity Co., 124 Md. 135, 91 Atl. 753 (interest added by jury) ; Kimball v. Williams, 36 App. D. C. 43 (waiver of interest) ; Bas.sick Gold Mine Co. v. Boardsley, 49 Colo. 275, 112 Pac. 770; Kauf- mann v. Kaufniann, 239 Pa. 42, 86 Atl. 634. Where a fund in litigation is de- posited in a bank paying interest by order of the court, this interest should .suffice. Delta Land Co. v. Sherwood, 187 III. App. 167. 395 § 258 THE LAW OF PERSONAL PROPERTY. [PART II. § 258. Interest Where Suit is Brought. The principles already discussed apply to suits, whether at law or in equity or admiralty; while at the same time matters of practice must depend largely upon local usage and the local stat- utes. In general, upon unliquidated and practically unascer- tained demands, interest can be recovered only from the commencement of the suit, and not from a previous demand, unless fraud, bad faith, or vexatious delay is imputable against the defendant; and where the debt ordinarily bears no interest before demand and default of payment, a demand must be proved, or else a like rule will be applied in the computation of interest.^ But the commencement of a suit is a sort of judicial demand; and even an award will carry interest from the date of its entry and not from that of judgment upon it."^ The allowance of interest in suits by way of damages is, after all, hardly a matter of strict law, and may be said to rest mainly in the discretion of a jury.* And while judgments do not at the common law bear interest, it is now tho practice in most parts of this country to allow a judg- ment or decree to carry interest until paid, if there be no special reason for disallowance.^ One who is enjoined against paying over money may protect himself by paying the money into court ; Interest makes sometimes a distinct No interest in insolvent proceedings cause of action. usually. Atlanta Nat. Bank v. Four 2. Palmer v. Stockwell, 9 Gray, States Grocer Co., 135 S. W. 1135 237; Ordway v. Colcord, 14 Allen, 59; (Tex.). No interest on funds in liti- Hunt V. Smith, 3 Rich. Eq. 465; gation, see Brooks v. Kerr, 223 Fed. Stimpson v. Green, 13 Allen, .326; 1016, 139 C. C. A. 612. Lyon V. Byington, 10 Iowa, 124 ; Hall 3. Buckman v. Davis, 28 Penn. St. V. Farmers Bank, 55 Iowa, 612; Um- 211; Neal v. Freeman, 85 N. C. 441. bria, The, 11 U. S. App. 691. Where, Unless a claim be such that interest after a public officer's death, his bond can be set running by a demand, in- was sued without previous demand terest cannot be allowed from the on his representatives or notice to time of commencing the action, the sureties, it was held that inter- White v. Miller, 78 N. Y. 393; Hall est could only be recovered from the v. Farmers' Bank, 55 Iowa, 612. date of service of the writ. United 4. Lincoln v. Claflin, 7 Wall. 13^. States V. Curtis, 100 U. S. 119. As 5. See Hemmenway v. Fisher, 20 to interest after demand, see § 253. How. 255. 396 CHAP. XII.] INCOME, INTEREST AND USURY. § 259 and as to a garnishee or trustee, unless he uses or makes profit upon the money for which he is liable, or has been bound by express or implied contract to pay interest upon it independently of the suit, he is not chargeable with interest, the presumption being that he keeps the fund intact to answer the judgment of the eourt.^ § 259. Interest in Transactions Relating to Real Estate; on Rents, Mortgage Debts, etc. Interest is frequently chargeable in transactions relating to real as well as personal property. Thus interest is frequently allowed upon rent from the time it becomes due ; though the right to claim it independently of some demand and default under a lease might be affected by the usual course of dealing between landlord and tenant or their mutual agreement.'' And the judgment in a fore- closure suit brought to enforce the payment of a real-estate mort- gage note may be permitted to include interest for the whole period claimed, though a suit upon the note were barred by the Statute of Limitations; the covenants of the mortgage bearing up the whole transaction.^ But where a tender of the debt has been made by the mortgagor pursuant to law, and there is delay, through fault of the mortgagee, in discharging the mortgage and restoring the premise?, interest should not be allowed on the debt subsequently to the tender.^ Of course, if the party having the 6. Irwin v. Pittsburgh, &c., R. R. ored, in decroeinpr interest on a long Co., 43 Penn. St. 488: Rennell v. account. Wilson v. Cobb, 31 N. J. Kimball, 5 Allen, 350: Moore v. Low- Eq. 91: Taylor v. \^■ing, 84 N. Y. 471. rey, 25 Iowa, 336; Blodgett v. Card- 7. Stockton v. Guthrie, ."j Harring. iner, 45 Me. 542; Candee v. Webster, 204; White v. Walker. 31 111. 422; 9 Ohio St. 452; Lilley v. Life Ins. Co., McQuesney v. Heister, 33 Penn. St. 92 Mich. 153, .52 N. W. 631; Mass. 435; Burnham v. Best, 10 B. Monr. V. Western Un. Tel. Co., 141 U. S. 40. 227: Van Rensselaer v. Jcwett, 2 General works on Damages, Prae- Comst. 135; Wagstaff v. Smith, 4 tice, &c., may well be consTilted, as Ircd. Eq. 1 ; West Chicago Works v. to the judicial allowance of interest Sheer, 8 Til. App. 3C7. in suits. Fluctuations of the statute 8. Wiswell v. Baxter, 20 Wis. 680. as to allowance of interest, consid- 9. Brown v. Simons, 45 N. H. 211. 397 § 2 GO THE LAW OF PERSONAL PROPEKTY. [PART II. right to redeem tenders the mortgage-money on a condition which ho had no right to make, he cannot after a refusal insist on an abatement of the interest.^ The question still recurs constantly, which party was at fault? As to interest in general on a real- estate mortgage, the terms of the bond or note for which the mort- gage is security should, in connection with our present discussion, determine its amount.^ § 260. Interest as to Those Holding Trust Funds, etc. But interest is not only in practice allowed on the ground of an express or implied contract, or by way of essential damage for some misconduct. In the case of guardians, trustees, factors, and others entrusted with the management of funds which do not belong to them, a fair element of consideration is that property ordinarily earns a regular percentage of profit, which percentage belongs no less to the true owner on a just reckoning than the original capital ; and this is a good reason why such persons, so far as their connection with funds is for management, and not a temporary custody and control, should be charged with interest on the property where the opportunity to invest has been neglected, 1. Rives V. Dudley, 3 Jones Eq. 126. Atl. 128 (guardian of lunatic) ; Wat- 2. Union Institution v. Boston, 129 son y. McManus, 223 Penn. 583, 72 Mass. 82', and cases cited. A mort- Atl. 1066; Feigner v. Slingluff, 109 gagee's verbal promise to reduce the Md. 474, 71 Atl. 978 ; Roberts-Man- rate of interest specified in the mort- Chester Co. v. Wise, 140 111. App. 443 gage is not binding if without consid- (valid legal statute) ; Street v. eration. Harris v. Creveling, 80 Mich. Thompson, 229' 111. 613, 82 K E. 367; 249. Matter of Burke, 191 N. Y. 437, 84 Interest on separate mortgage notes N. E. 405; Maryland Casualty Co. should be computed apart. Lowe v. v. Omaha Co., 157 Fed. 514, 85 C. C. Schuyler, 187 Mich. 526, 153 N. W. A. 106; Bell v. San Francisco Sav. 786. See West End Trust Co. v. Union, 153 Cal. 64, 94 Pac. 225; WethercU, 77 N. J. Eq. 590, 78 Atl. Rosenberger v. Express Co., 129 Mo. 756; American Mortgage Co. V. Wood- App. 105 (express money order); ward, 83 S. C. 521, 65 S. E. 739 (right Newburyport v. Fidelity Ins. Co., 197 to contract for highest statute rate Mass. 596, 84 N. E. 895 (public on overdue interest) ; Hennessey v. money) ; Britton v. Chamberlain. 234 Walsh, 142 111. App. 237; Cxoldberg 111. 246, 84 N. E. 895 (foreign judg- V. West End Co., 78 N. J. L. 70, 73 ment). 398 CHAP. XII.] INCOME, IXTEEEST AXD USURY. § 260 without some good excuse; though it may be well enough said that the interest allowed in such case is because of one's default or misconduct.'' Agents, factors, and attorneys are chargeable with interest on the moneys unreasonably detained which they have been instructed to remit, though not ordinarily for moneys collected and held subject to the owner's order; executors and administrators, on account of the temporary nature of their trust, are shown much greater indulgence than guardians and trustees in this matter of liability for interest, and generally need not account for interest at all ; and all parties holding property in trust will be allowed a reasonable time to invest. Of course, no one is allowed to appropriate the profits made by the use of funds committed to his keeping, but the gain accrues to principal, client, or cestui que trust, as the case may be.'* Yet one who is a mere stakeholder, and liable at the same time to answer to one or an- other party, is held not liable for interest upon money in his hands, though he makes a profit by its use ; ^ an exception which cannot be safely extended far.*^ On the other hand, there are circumstances under which one holding a place of trust may claim the allowance of interest for advances made out of his private funds for the benefit of the trust/ 3. See Perry Trusts, § 471 ; Sclioul. unreasonable time entitles the bof- Dom. Rel., § 354; Clemens v. Cald- rower to a rebate of interest. Dodge well, 7 B. Monr. 171 ; Bryant v. v. Tulleys, 144 U. S. 451. And wher- Craig, 12 Ala. 354 ; Sclioul. Ex'rs, ever the lender, on security or other- § 538 ; Johnson v. Hedrick, 33 Ind. wise, refuses to receive his money on 129. reasonable tender, he loses the right 4. lb. And see Hauxhurst v. to further interest. Loomis v. Knox, Hovey, 26 Vt. 544; Barney v. Saun- 60 Conn. 343, 22 Atl. 771. Where ders, 16 How. 535; Hill v. Hunt, 9 money is paid into the bank at which Gray, 66. the note was payable, no interest is 5. Jones v. Mallory, 22 Conn. 386. payable after the maturity of the 6. See Moors v. Washburn, 159 note. Cheney v. Libby, 134 U. S. 68. Mass. 172, 34 N. E. 182. 7. 2 Schoul. Wills & Ex'rs, §§ 1541, When a loan is negotiated, the re- 1543. tention of part of the fund for an 399 § 263 THE LAW OF PERSONAL PROPERTY. [PART II. § 261. Interest upon Legacies or Annuities. Interest is frequently payable upon legacies and annuities; but, where no time is fixed by the testator's will, the general prac- tice is not to allow interest until the expiration of one year from the death of the testator, at which time a legacy is properly de- mandable; exception being made in favor of a child who is left without other provisions for maintenance in the mean time, and who should be paid sooner.^ § 262. Immunity and Privilege of Government as to Interest. From a liability for interest, the State usually claims exemp- tion, save so far as concerns loans made on its express contract and with legislative authority. The usage of government is not the usage of individuals ; and constitutional limitations of author- ity are imposed upon the State and even upon municipal corpora- tions, which are of no application elsewhere.^ § 263. Compound Interest. Compound interest, or interest upon both principal and inter- est, may be demanded in certain cases; and the right to it some- times arises in the case of a note with interest payable annually or at other designated periods, where the debtor runs into arrears on the payment of the instalments as well as of the principal. Ordinarily, simple interest, or interest by computation upon the principal sum for the entire period of default, can alone be allowed upon a debt; and it is thought hard and iniquitous for one to exact compound interest, even where he can legally claim 8. 2 Redf. Wills, 572, and cases as to refunding duties. Marine v. cited; Allen v. Crosland, 2 Rich. Eq. Lyon, 62 Fed. 153. See § 256. The 68; Gill's Appeal, 2 Penn. St. 221; State does not relax the right to Roberts v. Malin, 5 Ind. 18; Burtis claim interest from those with whom V. Dodge, 1 Barb. Ch. 77; 2 Sohoul. it has business relations. See Dean Wills & Ex'rs, §§ 1481. 1482. v. Texas, 54 Tex. 313. But interest is 9. Gordon v. United States, 7 Wall. not allowable on taxes unless the 188; Pekin v. Reynolds, 31 111. 523; statute gives it. West-ern Union Tel. State V. Mayes, 28 Miss. 706 ; Tillson Co. v. State, 55 Tex. 314. V. United States, 100 U. S. 43. So 400 CHAP. XII.] INCOME, INTEREST AND USURY. § 263 it, unless the debtor was guilty of some gross and intentional mis- behavior.^ Where there is no special agreement incorporated into the contract or established between the parties, interest on interest certainly cannot be allowed.^ And if interest is due upon a mort- gage note with annual or semi-annual instalments, some special agreement is required in many States, after the interest becomes due, to change that interest into principal and make it bear in- terest in futuro.^ ISot, according to some decisions, should the usage among merchants to strike annual balances be regarded as justifying of itself the annual compounding of interest.'* For gross negligence or intentional misconduct, as in the case of trustees who speculate and waste trust funds committed to their keeping, the courts sometimes make annual rests and charge the delinquent parties with compound interest by way of penalty.^ 1. See Blyd. Usury, 68, 69, and cases cited; Rayner v. Bryson, 29 Md. 473. 2. See Toll v. Hiller, 11 Paige, 228; Rose V. City of Bridgeport, 17 Conn. 243. 3. lb. ; Banks v. McClellan, 24 Md. 62; Van Huson v. Kanouse, 13 Mich. 303; Gunn v. Head, 21 Mo. 432; Stone V. Locke, 46 Me. 445 ; Ferry v. Ferry, 2 Cush. 92 ; Dyar v. Slinger- land, 24 Minn. 267. Wliero a prom- issory note is given with a stipulation that interest is to bo paid semi-annu- ally (or annually, &c.), the maker is chargeable with interest at the like rate upon each deferred payment of interest as if he had given a promis- sory note for the amount of such in- terest. Bledsoe v. Nixon, 69- N. C. 89. But the English chancery rule is that, in the absence of a special agreement, simple interest alone can be charged in a mortgage account. Daniell v. Sinclair, 6 App. CaS. 181. Interest may be computed on overdue and un- paid express instalments; but no in- stalments of semi-annual interest will be considered as due after the matu- rity of the note; because after that, both the accruing interest and prin- cipal are due, not on any particular day, but every day until paid. Whea- ton V. Pike, 9 R. I. 132. And see Cramer v. Lepper, 26 Ohio St. 59; § 256, supra. An agreement to pay interest upon interest must, in order to be valid, be made after the interest which is to bear interest has become due, and it must !» supported by sufficient consideration; e. g., a for- bearance to sue. Young v. Hill, 67 N. Y. 162. As to a peculiar pro- vision in a promissory note, see White v. litis, 24 Minn. 43; Page v. Wil- liams, 54 Cal. 562. 4. Von Hemert v. Porter, 11 Met. 210. See Wright v. Eaves, 10 Rich. Eq. 582; Carpenter v. Welch. 40 Vt. 251 : Preston v. Walker. 26 Iowa. 205: Reusens v. Arkenburgh. 135 App. Div. 75. 119 N. Y. S. 821. 5. Ford V. Vandyke. 11 Ired. 227; Attorney-General v. Alford, 4 De G. 26 401 § 265 THE LAW OK PERSONAL TROPERTY. [PART II. And upon coupon obligations in these days, which amount to promissory notes, a practical compounding of interest on the principal obligation is judicially sanctioned.^ § 264. Rule of Interest in Partial Payments. Since partial payments, however, are frequently made on an interest-bearing debt, it becomes important to apply the well- known rule of Chancellor Kent, which the courts of this country have commonly ret^ogiiized : namely, to apply the payment in the first place to the discharge of the interest then due; if the pay- ment exceeds the interest, to carry the surplus towards discharg- ing the principal, and compute the subsequent interest on the balance of the principal remaining; but if any payment be less than the interest due, not to take the surplus of interest to aug- ment the principal, but cast the interest on the former principal until the period when the payments taken together exceed the interest due.^ This rule is fairer to the lender than the rule of compound interest, and is preferred both in the courts and among business men. § 265. As to Usury ; Characteristics of Usury Laws. II. And now to pass from interest to usury. If proof were needed of the practical difficulties which block the enforcement M. & G. 851; Perry Trusts, § 471; cantile Co. v. Lanoe, 16 Ga. App. 592; Johnson v. Hedrick, 33 Ind. 129. Palm v. Fanclier, 93 Miss. 785, 48 6. Swpra, % 256. On the principle So. 818, 33 L. R. A. N. s. 295, n. of a domand for payment of a debt 7. Connecticut v. Johnson, 1 Johns, which was actually due at a certain Ch. 13. See Anketel v. Converse, 17 time, and the debtor's default, why Ohio St. 11; Townsend v. Riley, 46 .should not the payee have a right to N. H. 300; Dean v. Williams, 17 demand and exact interest for one's Mass. 417 ; Leonard v. Wildes, 36 Me. t:nreasonable dela}' in paying a peri- 265 : Baker v. Baker, 4 Dutch. 13 ; odical interest instalment? See §§ Smith v. Coojjers, 9 Iowa, 376; Riney 253, 254. S<^ Lowe v. Schuyler, 187 v. Hill, 14 Mo. 500; Abbey, Re, 83 Mich. 526, 153 N. W. 786; West End N. J. Eq. 689, 93 Atl. 801; Boston Trust Co. V. Wetherell, 77 N. J. Eq. Investment Co. v. Board of Educa- 590, 78 Atl. 756 ; Ute Indians v. U. S., tion, 33 S. D. 1, 144 N. W. 129. 45 Ct. CI. 440. And see So. Ga. Mer- 402 CHAP. XII.] INCOME, INTEREST AND USURY. § 266 of usury laws, it might readily be found by examining the current decisions of our State courts. The later American reports are full of distinctions in usurious contracts, which, though true in the main to certain leading principles, vary widely in their appli- cation with the intrinsic merits of each case, the consequences of illegality, and local public sentiment, whether for or against re- straints of this nature upon mercantile traffic. In the matter of contrivances for evading the legal penalties against usury, human ingenuity exhausts itself; and many are the cunning expedients, not merely of felons and social reprobates, but of bankers and business men of high standing, which are found to fail when sub- mitted to the test of litigation ; while it can hardly be doubted that, in every State where a rigid policy prevails, mercantile transactions in violation of the usury laws are constantly carried on between parties who take all legal risks and know theii mutual interests too well to call upon the courts for direction.*^ § 266. What Contracts Are Usurious; Questions of Intent. But, upon the whole, what contracts may and what may not be pronounced usurious ? And where is the line to be drawn be- tween them? It is a well-settled principle, to begin with, that the essence and not the form of a contract will determine whether or not the contract is usurious ; and no matter what the ostensible purposes of a transaction may have been, or the language em- ployed, the courts will explore the truth; and if they find that the object was a loan of money at more than the legal rate of interest, they will pronounce it usurious. Usury is mainly and fundamentally a question of intent ; and to constitute a usurious 8. The repeal of the En9 THE LAW OF PERSONAL PEOPERTY. [PART II. excepted from the operation of the old usuarj laws; and similar enactments maj be found in parts of the United* States."* The practice of discounting was first recognized as lawful on behalf of banks, -and eighty years ago our courts seem to have been disposed to confine its operation to bankers and those who dealt in commercial paper by way of trade; but the tendency of the day is towards a more liberal allowance of the practice, so long as the lender bond fide advances the whole principal, and deducts, only legal rates of interest. Whether, on a discount of a bill or note, it is usurious to reckon the month at thirty days and the year at three hundred and sixty days and compute accordingly, seems in dispute; but mercantile usage is probably in its favor. ^ But where, under the pretext of discounting a note, more than the legal rate is taken out by the lender, th^ transaction is usurious.^ A court is not to be misled by appeaBances' in such a case ; and whether maker, payee, indorser, indorsee, or any holder is con- cerned, he will be affected* by participation in the usury. N^or does it matter in civil consequences, that the lender acted in good faith and without actual intention of evading the law which is violated.^ Yet when it comes to the sale of commercial paper for less than its face, and 'at a discount, new. considerations are found to arise, which receive much attention in our courts; and certainly the present tendency is towards sustaining the bond fide sale and pur- chase of negotiable securities for any rate of discount, through brokers or otherwise, and this although the practical effect might 4. Stat. 3 & 4 Wm. IV., c. 98. See v. Wolfe, 34 111. App. 23. An agree- Wms. Pers. Prop., 17th. Eng. ed., 245. ment to pay periodically in advance 5. Cf. Parker v. Cousins, supra, and the highest legal rate of interest for Utica Ins. Co. v. Tillman. 1 Wend. the use of money is not usurious. 555. Rose v. Munford, 36 Neb. 148, 54 6. Gebhart v. Sorrels, 9 Ohio St. N". W. 129. And this, although the 461; Nichols v. Levins, 15 Iowa, 362; money loaned was not paid over to Simpson v. Evans, 44 Minn. 419; the borrower until after interest be- Connor v. Donnell, 55 Tex. 167. gan to run, provided the fault for 7. Equitable Trust Co. v. Fowler, such delay was that of the borrower. 141 U. S. 384, 12 Sup. Ct. 1; Dniry lb. 410 CHAP. XII.] INCOME, INTEREST AND USURY. § 271 be to defeat the policy of the usury laws.^ In this respect, as in others, the business community are apt to strain a doubtful point, and lend the sanction of business usage in advance of judicial interpretation. In principle, such sales correspond closely to the familiar transaction of purchasing coupon bonds or stock at mar- ket rates, whether above or below par ; and the element of probable solvency enters into all such values. § 270. Whether Charging for Exchange is Usurious. It is not usury to charge the customary market rates of ex- change, where the loan is made in one place and is payable in another. But where, as is too frequently the case, this charge of exchange is a mere device and cover for usury, and the note is executed and payable at home, the transaction becomes usurious.^ And while rates of " exchange " are usually as between one State or country and another, it is held not to be usurious for the lender of money to take advantage of the difference of exchange between the place of the loan and the place of the payment, where both places are within the State. ^ § 271. Whether Taking Gift, Bonus, Fee, etc., is Usurious. Usury is often taken in the shape of a gift or bonus ; and where one lends money and simultaneously takes back part of the loan by way of a special premium, but without special consideration, this is a usurious device of the thinnest kind.^ But as concerns 8. See Noble V. Walkor, 32 Ala. 456 ; 9. Price v. Lyons Bank, 33 N. Y. May V. Campboll, 7 Humph. 450; Van 55: Blvd. 52; Buckin-xham v. Mc- Duzor V. Howe, 21 N. Y. 531 ; Gaul Lean, 13 How. I'A : Dwrkce v. City V. Willis, 26 Penn. St. 259; Metcalf Bank, 13 Wis. 210. V. Pilcher, 6 B. Monr. 529; Dicker- 1. Ea^le Bank v. UiRncy, 33 N. Y. man v. Day, 31 Iowa, 444; Maas v. C13. And see Kiljjore v. Dempsey, 25 Chatficld, 90 N. Y. 1; Colehour v. Ohio St. 413. Savings In.stitution, 90 HI. 152; 2. See N. Y. Dry Dock Co. v. Amer- Belden v. Lamb, 17 Conn. 441; Chase lean, &c., Co., 3 Sandf. Ch. 215: Nat. Bank v. Faiirot, 72 Hun, 373. Hawkeye Loan Ass'n v. Blackburn. And see § 275, post. As between 48 Iowa, 385; Lockwood v. Mitchell, business and accommodatiou paper, 7 Ohio St. 387; Jarvis' Appeal. 27 see § 275. Conn. 432; Grubb v. Brooke, 47 Penn 411 § 271 THE LAW OF PERSONAL PROPEETY. [PART II. compensation for special services, the repayment of expenses, attorney's fees, commissions, and the like, the rule may be other- wise, nnder some circumstances. In order that the extra allow- ance may not taint the whole transaction, it must be reasonable and proper, and stand for some real service distinct from the loan itself. A disguised gratuity inuring to the lender under the name of a commission will infect the contract of loan with usury; but for certain special services, which are well understood in the mer- cantile world, the lender who has rendered them in good faith is permitted to charge something in addition to the lawful rate of interest, — as for accepting the drafts drawn by a customer, and purchasing supplies for him, — provided always that the charge be well founded and reasonable in amount.^ And while the lender, who takes something above legal interest from the borrower under all such- circumstances, is to be narrowly watched, there is no doubt that the reasonable charges of third persons in connection with the transaction are properly allowable; such as attorney's fees, or the commissions of a broker.'* Usury is -not created by the fact that the lender is compensated for the expense of making the loan and of selling stock required to make it and for the dividends and rise in value of the stock, during the period of the loan.^ And whether all charges of this character are excessive or not will depend upon the ordinary rules.^ What, it should be asked St. 485; Stark v. Sperry, 6 Lea, 411; usual scope his principal is usually Walter v. Foutz, 52 Md. 147. bound; but it appears that, if the 3. See Blvd. 57; Byrne v. Grayson, agent of the lender takes a usurious 15 La. Ann. 457 ; Beadle v. Munson, bonus for himself without the lender's 30 Conn. 175 ; Corlies v. Estes, 31 authority or knowledge, the contract Vt. 653; Jones v. McLean, 18 Ark. is not thereby rendered usurious. 456. See Bell v. Day, 33 K Y. 165; Bal- 4. Tallman v. Truesdell, 3 Wis. linger v. Bourland, 87 111. 513; Aus- 443; Billingsley v. Dean, 11 Ind. 331; tin v. Harrington, 28 Vt. 130; Eogers Smith V. Wolf, 55 Iowa, 555; Dayton v. Buckingham, 33 Conn. 81. Such is V. Moore, 30 N. J. Eq. 543. the pronounced rule of Some States. 5. De Moltke-Huitfeldt v. Garner, Van Wyck v. Watters, 81 N. Y. 352 ; 145 N. Y. App. Div. 766, 130 N. Y. Brigham v. Myers, 51 Iowa, 397. Supp. 558. Loan not made usurious by the fact 6. For an agent's act within the that the borrower's agent receives a 412 CHAP. XII.] INCOME, INTEREST AND USUEY. § 271 (though this may not be the full criterion), was the intention, and what were the motives of the parties at the time of the transac- tion.'' A bonus- paid by the borrower to his own agent for pro- curing a loan is no part of the sum loaned and raises no issue of usurj.^ Sometimes a bonus or gratuity is really usurious, though taken rather by way of special advantage than as a direct payment iu cash. Thus, where a loan of money is made to a corporation on condition that the lender shall be employed in some official posi- tion, which is in fact a sinecure, and shall receive a salary with- out rendering equivalent services, this is a mere usurious device, and the transaction is' illegal ; though sometimes a special contract of this sort might be separated from the loan, and pronounced invalid simply by itself.^ So, too, an agreement to pay a lender a share of the business profits of the borrower in addition to prin- cipal and interest is usurious.^ But not a bond fide contract to perform certain work for a corporation at specified prices and to commission wliicli he divides with the lender's agent. Dickey v. Brown, 56 Iowa, 426. And see Smith v. Mack, 105 Ark. 653, 151 S. W. 431. Nor because an attorney, with the mort- gagor's assent, deducts money to a reasonable amount from the principal of the mortgage for legal services as to the title and drawing the papers, no part thereof being received by the mortgagee. White v. Dwyer, 31 N. J. Eq. 40; Kihlholz v. Wolf, 10,3 111. 362; Ammondson v. Ryan, 111 111. 506; Goodwin v. Bishop, 145 111. 421; Daley v. Minn. Loan Co., 43 Minn. 517. Otherwise, semble, if the benefit enures directly to the lender. Kilholz V. Wolf, 103 111. 362. Money to a reasonable amount deducted from a loan and paid to the agent who se- cured the loan for the borrower does not constitute usury. Oooflwin v. Bi&hop, 145 111. 421, 34 N. E. 47. BUt as to one procuring the loan who is the lender's agent, see Ginn v. Mort- gage Security Co., 92 Ala. 135, 8 So. 388. 7. Fraud in obtaining extra sum from borrower as expense incurred in procuring loan, distinguished from usury. Morton v. Thurber, 85 N. Y. 550. Stipulation- (c. g., in a mort- gage) for the payment of attorney's fees in case of default and suit ia not usurious. Weatherly v. Smith, 30 Iowa, 131 ; Minor v. Pari.s Bank. 53' Tex. 559; Shelton v. Aultman, 83 Ala. 315. Nor is the agreement by the borrower to pay the tax instead of the lender. Diibose v. Parker, 13 Ala. 779. 8. Drj-fu* v. Burnes, 53 Fed. 410. 9. Griffin v. New Jersey, &c., Co., 3 Stockt. 49 ; WaiU> v. Windham, &c., Co., 37 Vt. 608. 1. See Sweet v. Spence, 35 Barb. 44. 413 § '272 TllK LAW OF PElJSO.NAJ> IMJOPKHTY. PART II. roceivc payment in its bonds.^ And though, under some circum- stances, an agreement on a loan of money thiat the lender shall receive as recompense the rents and profits of land, might be deemed usurious, this will not be taken as a cover for usury unless the facts aiford a very strong presumption of usurious intent, as where the rent is excessive.^ § 272. Rule of Usury Applied to Banks. Th^ business of discounting and charging rates of exchange on loans belongs especially to banks; and not only are the rights and liabilities of such corporations defined to a considerable extent by charter, but general legislation tends to place them upon a footing 2. White Water, &e.,, Co. v. Val- lette, 21 How. 414. 3. Sessions v. Eiehmond, 1 K. I. 298; Cross v. Hepner, 7 Ind. 359. As to usury -under color of a leavse, see Phelps V. Bellows, 53 Vt. 539'; Lass- man V. Jacobson, 125 Minn. 218, 146 N. W. 350, 51 L. R. A. N. S. 265, n.; Sterling v. Gogebic Co., 165 Mich. 498, 131 N. W. 109; Shwarz v. Sweitzpr. 202 N. Y. 87, 94 N. E. 1090; Ringer v. Virgin Timber Co., 213 Fed. 1001; Gault v. Thurmond, 39' Okla. 673, 136 Pac. 742 (abstract of .title and registry) ; Smithwick v. WJwtley, 152 K C. 366, 67 S. E. 914, 28 L. R. A. N. S. 113, n.; Briggs v. Steel, 91 Ark. 458, 12r S. W. 754 (bond fide purchase and sale) ; Cobe V. Guyer, 237 111. 516, 86 N. E. 1071 ( attornej^'s fee) . See In re Fishel, 198 Fed. 464, 167 C. C. A. 2-24; Iif re Mesibovsl^y, 200 Fed. 562 (bankrupt borrower) ; First Nat. Bank v. Davis, 135 Ga. 687, 70 S. E. 246, 30 L. R. A. N. S. 134, n. (consideration of a deed) ; Spofford V. State Loan Co., 208 Mass. 84, 94 N. E. 227 ("small loans" act) -. Nat. Bank v. Thompson, 90 Neb. 223, 133 N. W. 199: Sedbury v. Duffy, 158 N. C. 432. 74 S. K 355 (usurious discount) ; Continental Nat. Bank v. Fleming, 170 Mich'. 624, 134 N. W. 6.56; Milholen v. Meyer, 161 Mo. App. 491, 140 S. W. 540 (exten- sion of chattel mortgajje) ; Jones v. Gay, 39 N. Y. S. 138 (Sup. Ct. E. T. 1912) (attorney of lender) : Van der Velde V. Wilson, 176 Mich. 185, 142 N. W. 553 (Mich, tax act) ; Washing- ton Ins. Co. V. Maple Co., 77 Wash. 686, 138 Pac. 553; Lassnian v. Jacob- son, 125 Minn. 218, 146 Minn. 350 (Minn, registry tax) ; Spain v. Tal- cott, 165 App. Div. 815. 152 N. Y. S. 611 (factor and principal) : In re El- more Cotton Mills. 217 Fed. 810; Sea- men's Bank v. M'Cullough, 166 App. Div. 271, 151 N. Y. S. 600; Turgrim- son V. J. P. Seeburg Piano Co.. 192 111. App. 512; CisSna Loan Co. v. Gawley, 87 Wash. 438, 151 Pac. 792 (option to pay before maturity) : Hartley v. Eagle Ins. Co.. 167 App. Div. 230. 152 N. Y. S. 686: Chicago City Bank v. Bremer, 189 111. App. 258 (accelerating clause). 414 CHAP. XT!.] IXCOME, INTEREST AND USUKY. § 272 quite (litferent from that of individuals, with privilegos and re- strictions entirely their own. Yet, in the absence of special statute provisions, it may fairly be supposed that general usury laws have the same application to- banks as to natural persons."' To take interest in advance on loans has long been within the established rules of banking; but a bank cannot take more than legal rates upon a note after it has become payable, any more than an indi- vidual. Cases are not uncommon where a bank has violated the general usury laws and been held liable accordingly, to say noth- ing of charter restrictions- upon, its powers ; and the question of usurious intent is here quite as material as in ordinary instances.^ Banks often, give advantages to depositors which those desiring an. occasional discount are not slow to discover. And if a person obtaining discounts voluntarily -allows a sum to remain on deposit with the expectation that he may thus obtain discounts more read- ily, but without any agreement or understanding that he may not draw his money at any time, there can be no usury in the practice.* Even where there is a distinct understanding at the time of the discount that the bank shall receive the borrower's deposits, and an extra profit results in consequence, the courts appear reluctant to infei- usury from that circumstance; though in a very hard and clearly established bargain they probably would. ^ Banks, like individuals, are sometimes entitled to compensation for collection of a draft; and it is held that w^here such charge is made in good 4. See Browcr v. Haifflit, 18 Wis. East River Bank v. Hoyt. 32 N. Y. 102; Niagara County Bank v. Baker, 119: Rock, &c.. Bank v. Wooliscroft. 15 Ohio St. 68: Farmers' Bank v. 16 Wis. 22. See Belmont Branch Burchard, 3.3 Vt. 346. Bank v. Hope, 3.5 N. Y. 6.5: Crowell 5. Thus, an arrangement by which v. Jones, 167 K. C. 386. 83 S. E. 551. one seeking a discount at a bank is 6. Appleton Bank v. Fiske. 8 Allen, required to obtain a discount of paper 301. amounting to fifteen hundred dollars 7. See Bcals v. Benjamin. 33 N. Y. to secure the application to his use of 61. As to usury paid in dealings one thousand dollars of the proceeds, with a Tiational l>ank. inent3 towards the discharge of principal and lawful interest; and it favors neither borrower nor lender especially, but seeks to do exact justice between them; relieving the one from the harsh consequences of his imprudent bargain, and giving back to the other all the money that he advanced with a fair rate of compen- cation for the use of it.^ § 286. Effect of Usury as Betw^een Principal Debt and Security. The securities which follow or grow out of a usurious transac- tion must bear the consequences of the usury ; and whether these 6. See Ware v. Thompson, 2 Beasl. 66; Ruddell v. Ambler, 18 Ark. 369; Conner v. Myers, 7 Blackf. 337; Bal- linger v. Edwards, 4 Ired. Eq. 44?; 82 N. C. 134. 7. See Minot v. Sa\\'yer, 6 Allen, 78; Divoll v. Atwood, 41 N. H. 446. And see Grow v. Albee, 19 Vt. 540. But the debtor cannot apply the pe- nal deduction for himself. McNeal V. Leonard, 1 Allen, 399. 8. See Spain v. Hamilton, 1 Wall. 604; Smith v. Hollistor, 1 McCart. 153; McAllister v. Jcrman, 32 Miss. 142; Smith v. Robinson, 10 Allen, 130; Woolley v. Alexander, 99 111. 188; N. E. Mortgage Co. v. Aughe, 12 Neb. 504. A mortgagor cannot ob- tain an injunction against a foreclos- ure sale on the ground of usury, un- less he tenders the sum borrowed, wth lawful ittterest. Anthony v. Lawson, 34 Ark. 628. And see Kohn V. Kelley, 77 N. J. E. 273, 79 Atl. 686; Bettis v. Tampa Ass'n, 62 Fla. 435, 56 So. 499; Van Der Velde V. Wilson, 176 Mich. 185, 142 N. W. 553; Title Trust Co. v. Wlioatficld, 123 Md. 455, 91 Atl. 757; Chase Co. V. Nat. Trust Co. 215 Fed. 633 (111. D. C, 1914) ; McFadden v. Palmer, 83 N. J. E. 621, 92 Atl. 396 (fraud) ; Compton v. Collins, 190 Ala. 499, 67 So. 395; Schanz v. Sotscheck, 86 Misc. 121, 149 N. Y. S. 145 (mortgage sold at a discount) ; Cuthbertson v. People's Bank, 170 N. C. 531; 87 S. E. 333; Powdl v. Petteway, 69 Fla. 12. 67 So. 230; Heitsch v. Minneapolis Co., 29 N. D. 124. l.jO X. W. 457 (N. D. bond fide purchaser at foreclosure sale) ; Drake V. Lux, 233 Hi. 522, 84 N. E. 693 (application of payment). 431 § 287 THE LAW OF PERSONAL PROPERTY. [PAET H. securities be real or personal, thej go with the debt to which they are collateral.^ But where a valid claim is embraced in a subse- quent security which is void for usury, the effect is to make the latter security illegal and void, and leave the naked claim as it stood before; for, the original contract being lawful, no subse- quent taking or contracting to take illegal interest will render it usurious.^ This distinction is, of course, to be reasonably applied ; and a mere device, such as taking separate notes for principal and interest, will not operate so as to relieve a contract from the conse- quences of usury, if the fact be shown that the promise to pay interest constituted a part of one entire contract for the loan of principal and interest.^ § 287. Usury as a Criminal or Penal Offence. Not only is the taking of unlawful interest visited by law with the consequences already enumerated, but in some States it is even punishable by indictment as a criminal or penal offence. But prosecutions, under such rigorous laws, are found much less fre- 9. Hodkinson v. Wyatt, 4 Q. B. and usurious interest is held conclu- 74^; Langton v. Haynes, 37 E. L. & sive in Carlisle v. Bindley, 91 Penn. Eq. 590; Price v. Lyons Bank, 33 St. 229. N. Y. 55; Corcoran v. Powers, 6 2. See Gray v. Brown, 22 Ala. 262; Ohio St. 19. Goodrich v. Bussell, 40 Me. 500; 1. Cook V. Barnes, 36 N. Y. 520; Brown v. Nevitt, 27 Miss. 801. Blvd. Usury, 97, 102; Mitchell v. See Holmes v. Schmeltz, 161 Mo. Doggett, 1 Fla. 356. A. advanced App. 470, 143 S. W. 539 (pledge re- money to pay a mortgage, taking tained) ; Muller v. Philadelphia, 208 another mortgage to secure the ad- N. Y. 182, 101 N". E. 762 (security vance. The second mortgage was de- for usurious loan) ; CaSner v. Hos- clared void for usury. Held, that kins, 64 Ore. 254, 128 Pac. 841 ; Chase the usury did not affect the fir&t v. Nat. Trust Co., 215 Fed. 633 (111. mortgage; and the second mortgage D. C, 1914) ; Everett v. Ingram, being void, the first mortgage revived 142 Ga. 145, 82 S. E. 562; First Nat. and could be enforced by A. Pat- Bank v. Eambo, 143 Ga. 665, 85 S. E. terson V. Birdsall, 64 N. Y. 294. And 840; Thompson v. Prettyman, 231 seePritchettv. Mitchell, 17 Kan. 355; Penn. 1, 79 Atl. 874 (taint extended Kiehardson v. Baker, 52 VC. 617. A to security) ; In re Baker, 77 Misc. ijudgment obtained on a mortgage 90, 137 N. Y. S. 530 (legacy as se- given as security for a bond which curity) ; London Realty Co. v. Rior- is claimed to have included a debt dan, 207 N. Y. 264, 100 N. E. SOO. 432 CHAP. XII.] INCOME, INTEREST AND USUIJY. § 289 quent than the transgression ; and courts seem disposed to construe such statutes quite strictly.^ § 288. Conflict of Laws Relating to Interest and Usury. Generally, interest, whether due by express contract, or given by law as damages, is to be computed according to the legal rate of the State or country where the contract is made or performed, on the usual principles which prevail in a conflict of laws; and in the absence of attempted evasion of the usury laws, parties are free to choose for themselves between the rate of the " place of contract " or that of the " place of performance," and contract accordingly."* But the parties who mean to stipulate according to rates other than those prevailing in the State where the contract is given should indicate their intention clearly.^ Moreover, a State jurisdiction where the remedies of enforcement are sought, as, for instance, in foreclosure of a mortgage given as security, will sometimes insist upon its own statute policy.*^ § 289. Constitutional Questions; Law in Force at Date of Transaction. So, too, the hiw in force at the time when the usurious contract 3. See State v. Tappan, 15 N. H. further, as to law of place. Kavanaujrh 91; Gillespie V. State, 6 Humph. 164; v. Day, 10 R. 1. 393; Bowman v. Block V. State, 14 Ind. 425; Agnew Miller, 25 Gratt. 331; Lindsay v. V. McElhare, 18 Penn. St. 484; Em- Hill, 66 Me. 212; Wayne Co. Sav- pire Trust Co. v. Coleman, 85 Misc. ings Bank v. Low, 81 N. Y. 566; 312, 147 N. Y. S. 740; German Ass'n Dickenson v. Edwards, 77 N. Y. 573; V. Leavens, 89 Wash. 78, 153 Pac. Bowles v. Eddy. 33 Ark. 645; Stoin- 1092; Cobb V. Hartenstein, 47 Utah, man v. Midland Loan Co., 78 Kan. 174, 152 Pac. 424; Vander Velde v. 479, 96 Pac. 800; J. L. Cnso Co. v. Wilson, 176 Mich. 185, 142 N. W. Tomlin, 174 Mo. App. 512. 161 S. W. 553; Chas'. S. Riley Co. v. W. T. Sears 286; Granite City Bank v. Cross. 188 Co., 154 N. C. 509, 70 S. E. 997. 111. App. 242 ; Ringer v. Virgin Tim- 4. See Miller v. TiflFany, 1 Wall. l>pr Co., 213 Fed. 1001; Baxter v. 298; Roberts v. McNeeley, 7 Jones, Beckwith, 137 Par. 901. 25 Col. App. 506; Butlers v. Olds, 11 Iowa, 1. 322. And see next chapter. And see next chapter. 6. Martin v. Johnson, 84 Ga. 481, 5. See Ayer V. Tilden, 15 Gray, 178: 10 S. E. 1092, 8 L. R. A. 170, u. Chase v. Dow, 47 N. H. 405. See 28 433 § 290 THE LAW OF PERSONAL PROPERTY. [PART II. is made will usually govern with regard to the consequences of usury; and this, too, though the statute may have been repealed before suit was brought.'' But, as it has been observed in a Con- necticut case, " the parties to usurious contracts hold any right they can be presumed to hold to the penalties given by the law, subject to a modification or repeal by the legislature which may destroy them, and a consequent direct or indirect validation of their contracts." ^ The obligations of existing contracts as to interest are not to be impaired by State legislation.^ § 290. Summary of Chapter; Usufruct, Income, etc., of Per- sonal Property, The leading results of our present brief investigation may be thus summed up. Concerning most species of property, there passes a sort of usufruct by the contract of hiring; the hirer acquiring that enjoyment of the thing with which the owner has parted for a time. Land is rented, ships are chartered, animals are taken for use ; capital in general yields its income ; and all this is by the operation of universal law. The value of the thing hired for any length of time bears a certain percentage to the value 7. Simonton v. Vail, 11 Wis. 90; A legislature has power to enact Matthias v. Cook, 31 111. 83. And see, laws relating to interest and usury. as to a substituted transaction after State v. Sherman, 18 Wyo. 169, 105 repeal of a usury act, Kilgore v. Em- Pac. 29'9 ; State v. Griffith, 83 Conn, mitt, 33 Ohio St. 410; Kilgore v. 1, 74 Atl. 1068. Dempsey, 25 Ohio St. 413; Taylor 9. Hubbard v. Callahan, 42 Conn. V. Thomas, 61 Ga. 472; Bandel v. 524; Danville v. Pace, 25 Gratt. 1. Isaac, 13 Md. 202 ; King v. State, 9 Negotiable paper given after the Ga. App. 714, 72 S. E. 176. repeal of the English usury laws, in 8. See Welch v. Wadsworth, 30 renewal of paper previously given to Conn. 149; also Starke v. Inman, 1 secure a usurious loan, held in Eng- Cart. 124; Smith v. Glanton, 39 Tex. land valid. Flight v. Reed, 1 H. & C. 365. But see Mitchell v. Doggett, 1 703. Fla. 356, as to contracts void when As to the effect of a renewal of made. Concerning constitutional pro- the usury laws after their repeal, see visions as affecting previous usury Tribble v. Anderson, 63 Ga. 31. And laws, see Bandel v. Isaac, 13 Md. see § 268. 202. And see Brunswick Co. v. Uni< versity Co., 43 Utah, 75, 134 Pac. 608. 434 CHAP. XII.] INCOME, INTEREST AND USURY. § 290 of the thing itself; and this percentage, which parties may gen- erally be left free to regulate for themselves, fluctuates consider- ably ; the risk of loss or deterioration of property which the owner runs, the scarcity of the thing, and the amount of enjoyment or profit which its use will probably bring, entering as elements into the computation. So is it with money, the purchasing agent of worldly things and general representative of- wealth ; nor does it make any essential difference that when this species of property is loaned, the bor- rower is to replace in kind rather than restore the identical coin or currency. Money finds its own percentage of value, when placed out by parties on a contract of hiring; and the question is whether borrower and lender may safely be left free to determine the ratio according to their mutual contemporaneous convenience; whether in truth the capitalist who puts out money at interest has really more temptation and opportunity to oppress than he who lets ships and merchandise or the landlord of real estate. Where the law discountenances and forbids the receiving of recompense for the hire of money altogether, we have usury, which is illegal, and no interest; where it fixes the limit of recompense, and pro- hibits taking more, we have interest up to that limit, which is legal, and usury beyond it, which is illegal ; and finally, where it per- mits borrower and lender to determine the recompense for them- selves, and set the percentage for themselves, we have interest, which is legal, and no usury. For, whatever the law of the hind, men may as well attempt to drive money out of the world as to prevent its loan upon a recompense. That system of jurispru- dence which allows the taking of recompense up to a certain point, and so divides interest from usury, receives, perhaps, the fullest assent of mankind ; yet, if late legislative experiments on money lending prove successful, " usury " may yet some day be stricken from the text-books, and " interest " be left standing by itself. 435 CHAPTER XIII CONFLICT OF LAWS RELATING TO PERSONAL PEOPEETY § 291. Fundamental Rule as to Sovereignty. The sovereignty of every independent State is an admitted fact in all systems of jurisprudence; and a fundamental principle essential to this sovereignty is, that no municipal law, whatever be its nature or object, can of itself avail beyond the territorial limits of the State or government imposing it.^ So zealous were the ancient nations to maintain their own legal usages to the exclusion of all outside or " barbarian " interference, that disputes under what we now denominate the " conflict of laws " could hardly have arisen in their day; and even the Roman Empire, which gave heed to the local customs of its conquered and depend' ent subjects, would not have permitted a law or custom to be set up against the imperial authority of its own code, or to defeat the proud birthright of a Roman citizen. During the period of the Middle Ages the sword was high arbiter between contending nations ; and international jurisprudence found nothing like a solid foundation until the revival of trade had brought England and the countries of Continental Europe into a closer and more essential communion than ever before. But while a contiguity of boundaries and the similarity of their laws drew the modem Latin races, so called, closely together, as modern civilization advanced, England, isolated and independent, self-asserting, and proud of her common-law system, still disdained for a long time to acknowl- edge interaational obligations or allow foreign doctrines to impair the force of her own settled precedents. § 292. Growth of International Jurisprudence; Works of Pub- licists, etc., on This Subject. While, therefore, Rodenburgh, the Voets, Boullenois, and other 1. Burge Col. and For. Laws, 1-3; Story Confl. Laws, § 7. 436 CirAP. XIII.] CONFLICT OF LAWS. § 292 Continental publicists, were early in developing the legal philoso- phy of a conflict of laws, and discussed this important subject in a comprehensive and enlightened spirit, the international jurists of the Anglo-Saxon race failed to appear until the nineteenth century had well advanced. The growth of the American colonies and the annexation of Scotland had given an increased impulse, however, in Great Britain to the study of international conflicts ; and in 1837 Mr. Burge issued his learned work on Colonial and Foreign Laws; Judge Story of our own country having just pre- ceded him with a treatise which has since become the standard authority in English and American courts, on all questions in- volving the conflict of laws ; and Chancellor Kent having earlier than either outlined the topic in his Commentaries. Westlake's treatise on Private International Law desen'es honorable men- tion; and also the Commentaries of Sir Robert Phillimore, both of which works are English.^ No other writers of prominence, English or American, occupied this field from the earliest period of the common law to the year 1872. But a new volume has later been published on the same subject of the conflict of laws by an eminent text-writer of America, who tells us that four causes have recently operated to revolutionize the private law of nations: first, the adoption of naturalization treaties by leading nations ; second, the abolition of slavery in the United States and Russia ; third, the great comparative increase of personal wealth, as distinguished from real property; and fourth, the growing sense, on the part of Englniid and tlio Fnitod 2. Westlake's brief treatise, pre- incidentally considon-d. and that with pared with principal reference to Eng- very littlo regard to American intt-r- lish practice, has been lately rewrit- State conllicts. and largely, moreover, ten and republished (1880). Of Phil- by way of comment ui)on tlio standard limore's Commentaries, an extensive treatises of Story and Wharton, in work of four volumes in its second connection with those of Continental edition, it should be said that Inter- publicists. national Law constitutes the ground- Miner's Conflict of Laws is a mod work; the conflict of laws being only ern short work on the subject 437 § 293 THE LAW OF PERSONAL PROPERTY. [pART II. States, of the duty of aiding in the punishment of crimes com- mitted beyond the territorial jurisdiction.^ § 293. The Same Subject. It will be seen, then, that American jurists have done more thus far than those of England to bring into harmony and blend to- gether the jarring systems of independent nations, by unfolding principles for universal recognition as the groundwork of an inter- national law, upon which a lasting superstructure may be raised. They certainly have given the strongest impress, so far as taking the initiative is concerned. Indeed, the nature of our own Amer- ican government, with its union of States, independent of one another for the most part, so far as concerns the ordinary trans- actions of life, and yet acknowledging a common federal chief supreme within a constitutional sphere of action, is such that questions of inter-State conflict must frequently come before the courts for adjudication, to say nothing of conflicts between federal and State authority, and the time-honored international disputes ; so that the whole subject is and must remain one of far more vital importance to us of the United States than to the subjects of Great Britain, where conflicts calling for judicial intervention are purely international, save so far as they may arise between the parent government and its colonial offspring. And this consideration may furnish us with a reason why an extra-territorial jurispnidence, so to speak, should, on the whole, be more widely favored in America than the British courts ; since here the conflict comes so frequently between jurisdictions not foreign to one another, but allied by blood, language, institutions, and political sentiment, — in one aspect distinct sovereignties, but in another a single people, — the people of the United States."^ 3. See Wharton Confl. Laws, c. 1; also been the standard Anglo-Saxon Story Confl. Laws, § 2, 1 Burge Col. writer on the law of nations; Philli- and For. Laws, 3; 2 Kent Com. 107, more, however, later becoming a 122, 462, &e. The second edition of prominent authority on the same sub- Wharton's work was published in jest. 1881. Wheaton, an American, has 4. Mr. Wharton observes (ISSl) in 438 CHAP, XIII.] CONFLICT OF LAWS. § 294 § 294. Conflict of Laws as Affecting Property; Laws as to Person and Property Distinguished. Leaving then the conflicts of law, so far as they may affect the status or capacity of persons, let us consider those conflicts as they determine the rules of property, or rather, since our subject is confined within still narrower limits, as they may affect personal property or things movable, when distinguished from real estate or things immovable. Here we find some difficulty growing out of the various modes of classifying property adopted among dif- ferent nations and under various systems of jurisprudence, and the disposition of one country to refer to the law of contracts what another would include under the law of things, — a difficulty which one must avoid in the best manner possible. It may bo well to state at the outset that a law which has for its primary and chief object the status of persons, while its effect on things is secondary and incidental, is to be deemed a personal law, — that is, relative to the person; but that a law which primarily and chiefly concerns things movable and immovable, its effect upon persons being only secondary and incidental, is a property law, — that is, a law relative to things. To the former head are usually referred, for instance, conflicting laws on the subject of citizen- ship, marriage,^ and divorce,^ or the parental relation ; to the the preface to the socond edition of Continent of Eiiro|>e; addinp, liow- his work, that since the publication ever, that as to Germany, France, of the original edition (which, we Belgium and Ital}', the jurists mould may remark, shortly preceded the the courts, nor the courts the jurists, preparation of the first edition of In this preface the learned author the present volume) the literature enumerates the latest general works, on this topic has more than doubled, many in number. Euro]x«an and and that in the United Stat{\s alone American, wliich bear upon this sub- we have as many rulings bearing on ject. Presumption that foreign law international law since 1870 as were is like ours. Book 17, N. Y. Rpts , reported prior to that period. He Bender ed., note, p. 344. observes further, that not only the 5. Validity of foreign marriage d«'- reports of our own courts and of the termined by law where solemnized, courts of England require an author's Book 3, N. Y. Rpts., Bender ed . note, consideration, but the reports of the p. f)4. courts of the leading states of the 9. Recognition of validity of di- 439 § 295 THE LAW OF PERSONAL PROPERTY. [PART II. latter, those which concern the general title to personal property, even though the domicile and citizenship of the owner may have an important bearing upon the determination of the issue in dispute.'' § 295. International Distinctions Between Things Real and Personal. The great distinction between real and personal property which the common-law courts have maintained from the earliest known period, so far as legal conflicts are concerned, is that things real are governed by the lex rei sitce, while things personal depend upon the law of the ovnier's domicile ; in other words, that the laws of the place where a piece of real estate is situated determine exclu- sively the rights of parties, and the methods and requisite solemni- ties of transfer; but that the rights and modes of disposition as to any and all personal property are governed exclusively by the law rather which prevails at the domicile or fixed abode of the ov^ner.^ The civilians generally concur in the foregoing rule, so far as concerns its application to real property or immovables ; but by no means do either the civil or the common law writers admit the sweeping force of such a distinction as applied comprehensively to movables or personal property ; so that while we have a simple and precise rule for the one species of property, we find at the present day a doubtful and fluctuating rule, subject to many exceptions, as concerns the other; and the tendency is now to bring both systems, so far as may be, under the one dominating influence of the lex rei sitce; though in this direction the English and Amer- vorce decrees' in one State by an- 9 ; Story Confl. Laws, § 39 ; analyti- other. Book 18, N. Y. Rpts., Bender cal index to Wharton Confl. Laws, ed., note, p. 973. Effect of foreign 8. 1 Burge, 28, 29; Story Confl. divorce. Book 26, N. Y. Rpts., Bender LawS, §§ 380, 424-428 ; Sill v. Wors- ed., note, p. 420. Foreign divorces. wick, 1 H. Bl. 690; Hofi'man v. Ca- Book 26, N. Y. Rpts., Bender ed, note, row, 22 Wend. 323 ; Birtwhistle v. p. 1103. Vardill, 5 B. & C. 451; 2 CI. 4 Fin. 7 See 1 Burge Col. and For. Laws, 571. 440 CHAP. XIII.] CONFLICT OF LAWS. § 29G ican courts have not gone so fast or so far as those of Continental Europe.^ § 296. Fluctuations of the Rule as Concerns Personal Property. Let us note briefly some of the fluctuations of this important rule as concerns personal property; for the above distinction is to be taken as the starting point of any extended discussion of the conflict of laws. Mr. Justice Story asserted quite positively that this principle that things personal are governed by the owner's domicile had been constantly maintained with unbroken confi- dence and unanimity. And certainly the language of Lord Loughborough, Lord Tenterden, and other judges of a former generation, is strong enough to justify the statement.' To use the quaint old maxim, '' Movables stick to a man's bones," — Mohilia ossihus inhoerent; and when movables consisted chiefly of garments, jewels, household stuif, and cattle, the principle was easy enough of application. " Personal property," says Lord Loughborough, " has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmissiou of it, either by succession or the act of the party, it follows the law of the person." ^ And there can be no doubt that such is the view that prevailed, not only in England and America, but likewise on the Continent of Europe, as to all kinds of personal property or movables until somewhat recently. And it mattered not whether these " movables " were ponderous or hard to carry away, so long as they were legally " movables " and not " immovables." ^ But with the modem growth of incorporeal personal property, — property which, in fact, as we have shown, and primarily at least, has only a mental existence, — new reasons have dcveloptMl for 9. See P. Voet, Rodenburph, and 2. Sill v. WorBwick. ib. Boullenois, cited by 2 Burge, 751 ; 3. Ib. And BtH> Wlinrton Confl. Story Confl. Tvaws, § 376. Laws, § 297; Story Confl. Laws, § 1. Sill V. Worswick, and Birtwhistle § :?62. and cases cited ; n Burjje. 749- V. Vardill, supi-a. 7.')3 ; Blake v. Williunis. G Pick. 286. 441 § 296 THE LAW OF PERSONAL PROPERTY. [pART II. making tlie maxim Mohilia ossihus inhoerent unsatisfactory and comparatively futile. This, we apprehend, is in a considerable degree owing to the circumstance that our modem incorporeal property, so vast in value and volume, consists substantially of debts or money rights, simple, or else secured by lien, pledge, or mortgage; of a debt without tangible evidence of its existence; or, as in the case of certificates of stock, bills and notes, and nego- tiable instruments generally, of a debt accompanied by some writ- ing which manifests its value, and passes from hand to hand as though it were the corporeal and tangible thing itself, instead of its representative ; or perhaps of debts or money rights with some paper muniment of title such as a written assignment. Now debts or obligations and contracts are akin ; and, as we approach the subject of obligations, we enter upon the terra incognita of legal conflicts, where various considerations are simultaneously pre- sented and no one is all-controlling. In an obligation there are two parties : the obligee, with what is called an enlarged liberty ; and the obligor, with his liberty restrained. And then, besides the question of domicile of either party, we have to consider the place where the obligation is entered into and the place where the same is to be performed. Our leading court has gone so far as to hold promissory notes, made by a non-resident and belonging to another non-resident, taxable in the State where they are kept in a safety deposit box.'' So the credits of a foreign corporation aris- ing from its local business done through its local agent may be properly taxed by the State where the business is done.^ And wherever a transfer of personal property is to be accompanied with formalities greater than that of mere manual delivery, we find the rules applicable to contracts coming in further to confuse the principles which regulate transmission of property. A corpora- tion does business and registers all stockholders at one place, while some individual who owns specific shares of its stock has his domi- cile at another. Furthermore, a strong objection which is brought 4. Wheeler v. Sohmer, 233 U. S. 5. State v. Tennessee Coal, Iron 4 434, 34 Sup. St. 607 (1914). R. Co., 188 Ala. 514, 66 So. 178. 442 CHAP. XIII.] CONFLICT OF LAWS. § 297 against the test of an owner's domicile under any circumstances is, that it may be difficult to know at the outset who is the owner; so that if there be two litigants to the same property, having dif- ferent domiciles, the suit fails at the start for inability to deter- mine who is the owner and how it shall be tried. A similar objection might be urged in case possession were taken as the test.^ The rule of lex rei sitce is, on the other hand, of compara- tively simple and easy application. § 297. Distinction Betvi^een Real and Personal Regards Prop- erty in Its Legal Character. The fundamental distinction between real and personal prop- erty of which we spoke applies, of course, only to property con- sidered in its legal character ; and where a movable is annexed to the freehold so as to become incorporated with it, it follows the law of situs, because it then takes the incidents of immovable property.^ And ser\'itudes, easements, and charges on land gen- erally, or such incorporeal rights as are strictly annexed to the realty, are governed by the lex rei sitce ; all these by the law of England being deemed to be real and not personal estate.^ But it is to be remembered that the movables and immovables of the civil law do not precisely correspond to our legal divisions of real and personal, though the two grand divisions are quite similar in both civil and common law systems ; and here the principle must be that every nation impresses upon property within its own ter- ritory such character as it shall choose; so that in any en>o, as Judge Story has observed, the question is not so much what ought or ouffht not from their nature to be considered movables, as what are deemed so by the law of the place where they are situated.' Movables or things personal are subject to transfer and aliona- 6. See Savigny, Wachter. and other in foroipn state. Book 2, N. Y. Rpts., Continental writers, cited in Wliarton Bender od.. note, p. 669. Confl. Laws, §§ 298, 29^. 8. Story Confl., § 447. 7. Story Confl. Laws, § 382, citins: 9. Story Conll.. § 447: Chapman t. Pothier and others. Supreme Court Rolx>rtson. Paipe. 6:^7 And soe 3 may compel the conveyance of land Burgc, 752. 443 § 298 THE LAW OF PEESONAL PROPERTY. [PAKT II. tion as between persons living; also to succession post mortem or by virtue of some testamentary disposition, the title being thus transferred upon the owner's death. ^ And a corollary of our lead- ing doctrine would be that in either case the validity or invalidity of the transfer must depend upon the laws of the owner's domicile." § 298. Modern Dissatisfaction v^^ith the Test of Owner's Domi- cile. But the courts have not remained easy under such an application of the broad doctrine of an owner's domicile in the case of per- sonal property, and particularly as concerns transactions inter vivos. And here we find the exception stated, as to debts,^ that where some positive regulation exists in a State or nation con- cerning the mode of transfer, prescribing some particular mode by which alone the debt may be transferred, no legal title is acquired unless these forms are observed. And hence, property in the pub- lic funds and shares in joint-stock corporations, which the law prescribes shall be transferred only by obserAang certain formal- ities, must be transferred accordingly in order to be effectual ; the law of the owner's domicile thus yielding to the law of local situ- ation.** But though the positive or customary law of the place ' Vhere the corporation ^ is created governs the transfer of its 1. What law governs disposition of Book 20, N. Y. Epts., Bender ed., note, property at death. Book 11, N. Y. p. 74. Rpts., Bender ed., note, p. 449. What 3. Situs of debt. Book 28, N. Y. law determines validity of wills. Rpts., Bender ed., note, p. 564. Laws Book 27, N. Y. Rpts., Bender ed., of what State govern note. Book 37, note, p. 122. What law governs the N. Y. Rpts., Bender ed., note, p. 479. testamentary disposition of realty or 4. Moreton v. Milne, supra; Robin- personalty. Book 28, N. Y. Rpts., son v. Bland, 2 Burr. 1079; 3 Burge. Bender ed., note, p. 54. 751 ; 2 Kent Com. 458, n. : Dow v. 2. Story Confl., § 383; 3 Burge, Gould, 31 Cal. 630. When corpora- 751; Moreton v. Milne. 6 Binn. 364; tion is doing business in State under Cobb V. Buswell, 37 Vt. 337. Effect statute. Book 37, N". Y. Rpts., Ben- of assignment for creditors on for- der ed., note, p. 481. eign property. Book 7, N. Y. Rpts., 5. Local courts' jurisdiction of for- Bender ed., note, p. 1007. Foreign eign' corporation (private interna- assignments governing local property, tional law). Book 21, N. Y. Rpts., 444 CHAP. XIII.] CONFLICT OF LAWS. § 299 shares, yet if there be no positive or customary law to the contrary a transfer good by the law of the place of the owner's domicile is valid everywhere.^ And the equitable title will pass without the observance of such formalities, if the transfer be in good faith, and the laws of the country permit equitable transfers.^ Another exception to the broad doctrine is that local prescription, when it attaches, cannot be unseated by the removal of the movable tu another State.^ Again, neither justice nor comity demands tliat the foreign law be recognized in a State to the extent of divesting titles of its own citizens fairly acquired; a principle assorted in New York so as to protect the bond fide holder without notice of a bond and mortgage, notwithstanding the New Jersey law made the title ineffectual, under the circumstances, as against New Jersey creditors.^ The necessities of the case and the purposes of justice may interfere with the operation of the law of the owner's domicile. And the Supreme Court of the United States, in a modem case, allowed an attachment of personal property to prevail against a mortgage which was valid by the law of the owner's domicile, but not by the law where the property happened to be situated, on the ground that the principle of comity yields when the laws and policy of the State where the property is located have prescribed a different rule of transfer from that of the State where the owner lives. ^ § 299. The Subject Concluded; Whether Lex Situs Shall PrevaiL It is thus perceived that the old rule of the owner's domicile Bender ed., note. p. 271. Riprht of See Hardaway v. Seramos. 3R Ala. forei^ corporation to take under lo- 657. cal will (private international law). 7. lb.; Ang. A Ames. 8tli od.. $ Book 23, N. Y. Kpts.. Bender ed., 586, & n.; 3 Bur-je, T.-il. But ae.- note, p. 487. Taxation of foreign Whart. Confl., § 3G4. railroad companies (private interna- 8. See Waters v. Barton. 1 Cold. tional laAv). Book 34. N. Y. Rpts., 43. Bender ed., note, p. 473. 9. Hoyt v. Thompson, 10 X. Y. 6. Black V. Zacharie, 3 How. 483. 207. 1. Green v Van Buskirk. 7 Wall. 445 § 299 THE LAW OF PERSONAL PROPERTY. [pART II. applied to legal conflicts concerning personal property fails in these days to give full satisfaction. Mr. Wharton, indeed, after adducing strong arguments in favor of the law of local situation as the controlling principle both with reference to movables and immovables, states the present rule of international law to be that " movables, when not massed for the purposes of succession or marriage transfer, and when not in transit or following the owner's person, are governed by the lex situs, except so far as the parties interested may select some other law." ^ So where the question is as to the negotiability of an instrument some courts rule that this depends on the law of the place where the transfer takes place.^ For example, a transfer by a conditional vendee has been recently upheld, where such transfer to a purchaser for value was good in the State where made, although void as against the original vendor both in the State where the contract was made and where suit was brought.'* This is, so far as English and American prece- dents go, rather a rule of promise than of fulfilment, for our courts are far from accepting it, though the drift is apparently in that direction ; and even the principle as thus stated indicates that the law of local situation is by no means so precise in its application to personal as to real property. Whatever exception may have been made in particular instances, the general principle is still usually stated, in the language of Judge Story, that per- sonal property follows the law of the owner's domicile. The pres- ent uncertainty of the whole subject will appear more e\'ident as one proceeds to examine the leading classes of personal property at the common law.^ 13&. See Liverpool Marine Credit held to be bound by the laws of that Co. V. Hunter, L. R. 4 Eq. 62; Mum- domicile." Wharton, ib. ford V. Canty, 50 111. 370. 3. Baker Co. v. Brown, 214 Mass. 2. Whart. Confl. Laws, § 311. 196, 100 N. E. 1025; Alcock v. Smith, The reservation as stated in the sec- (1892) 1 Ch. 238. ond edition of this work (1881) is as 4. Fuller v. Webster, 5 Boyce, Del. follows: "Though in some jurisdic- 538, 95 Atl. 335. tions an exception may be made in 5. A decision in the House of Lords cases where all the parties, being in 1870 tends to regard the Jex rei subject to a comm,on domicile, are sitw as to personal property with fa- 446 CHAP. XIII.] CONFLICT OF LAWS. § 299a § 299a. Contracts Concerning Personal Property. The law of the place where a contract is made concerning per- vor. The point decided, however, is that, when a thing is situated within the jurisdiction of the court, proceed- ings in rem give a title to it against all the world ; and not otherwise. Castrique v. Imrie, L. R. 4 H. L. (1870), 414. See Whart. Confl., §§ 828, 829; Liverpool Marine Credit Co. V. Hunter L. R. 3 Ch. 479' ; Simp- son V. Fogo, 1 H. & M. 195. The later American cases are by no means satisfactory as to the dis- position of personal property. The old rule that the owner's domicile governs is still constantly asserted, though often by way of mere dictum. See Wharton Confl., § 353, 2d ed. and cases cited. See also the note of Pro- fessor Bigelow to Story Confl., 8th ed. (1883), § 383. Clearly, however, the old fiction of law that personal property follows the domicile of the owner will be forced to yield, at the present day, wlicncver the purposes of justice re- quire it; and, furthermire, we shall find that each independent State or nation seeks in a matter of doubtful controversy to apply any and all property under its control for the primary benefit of its own citizens, as against foreigners ; though where all are citizens or all foreigners the rule becomes fluctuating and ca- pricious. What the Supreme Court of the United States, as umpire be- tween equal and contending States, would decide, is not conclusive as to what the courts of a sovereign nation might decide, were the controversy between itself and another sovereign nation. Self-interest will sway the policy of independent governments, so long OS no common arbiter of peace is found to adjust their quar- rels. We have, in fine, hardly progressed with the long-drawn con- troversy further than to enable the reader to observe, in the language of Mr. Justice Davis, in a very import- ant case, that how far the transfer of personal property, lawful in the owner's domicile, will be respected in the courts of the country where the property is located and a different rule prevails, is " a vexed question, on which learned courts have dif- fered." See Green v. Van Buskirk, 7 Wall. 139 ; Bentley v. Whittemore, 19 N. J. Eq. 462; Paine v. Lester, 44 Conn. 196; Pritchard v. Norton, 106 U. S. 124. Tlie Supreme Court of the United States, in reaflirmance of Green v. Van Buskirk, siijyra. has di-cided that I)ersonal property, subject to a lien claim under the statute of one Stat« is, when sent into another State and received bj' a broker who has no knowledge of such lien, subordinate to the laws of the latter State wliere the property is now situated. Wal- worth V. Harris. 129 U. S. 355. Cf. 147 U. S. 476; In re Schow. 213 Fed. 514 (Conn. D. C. WIA) ; In re Nuck- ols, 201 Fed. 437 (Tenn. 0, C. 1912). As to stock, the rights of the stock- holder or beneficiary, whatever his domicile, must depend upon the law of the State which created the com- pany, and in reference to whosi' laws the contract of subscriber was made. Glenn v. Liggett, 135 U. S. 533. See also as to stockholders' liability. 447 § 200a THE LAW OF PERSONAL PEOPEnTY. [PAET n. sonal property usually prevails.^ But mutual intention here con- trols ; and, since the place of performance is also to be considered, the law of that State or country may determine instead ; while as to a contract both made and to be performed in another jurisdic- tion comity vipholds it locally, both in legal effect and interpreta- tion/ But a State or country will not uphold a contract made elsewhere which is in clear conflict with its own public policy, however it may have been where it was made or to be performed.* Nesom v. City Nat. Bank, 174 S. W. 715 (Tex. Civ. App. 1915) ; South- worth V. Morgan, 205 N. Y. 293, 98 N. E. 490; Rogers v. Mining Co., 185 Mo. App. 659, 171 S. W. 676. In corporation cases of this sort, the law of contract as entered into, or of the place where the contract was' to be performed, becomes an ingredient of the comity and increases the con- fusion, where one wishes to regard the personal property as such. See 128 U. S. 195. The latest English inclination appears to be, in ques- tions of a purchaser's title or o\vner- ship generally of a bill or note or of a certificate of stock, to prefer apply- ing English to foreign law. Williams V. Colonial Bank, 15 App. Cas. 267; Alcock V. Smith, (1892) 1 Ch. 238. Cf. (1892) 1 Ch. 219, 226, which (in a case of debentures) explains Simp- son V. Fogo, supra. 6. Rock Island Plow Co. v. Master- son. 96 Ark. 446, 132 S. W. 216; Reid & Murdock v. Northern Lumber Co., 146 111. App. 371; Stein-Gray Drug Co. V. Miehelsen, 116 N. Y. S. 789 (Mun. Court, 1909) ; In re Hart- dagen, 189 Fed. 546 (Pa. D. C. 1912) ; Acme Food Co. v. Kirsch, 166 Mich. 433, 131 N. W. 112, 38 L. R. A. N. s. 474, n. 3; D. Canale v. Pauly Co., 155 Wis. 541, 145 N. W. 372. 7. Sirch Laboratories v. Garbutt, 13 Cal. App. 435, 110 Pac. 140; Bene- dict V. Dakin, 243 111. 384, 90 N. E. 712 ; New Haven Trust Co. v. Camp, 81 Conn. 539, 71 Atl. 788 (presumed intention) ; Title Guarantee Co. v. Witmire, 195 Fed. 41, 115 C. C. A. 43; Elswick V. Ramey, 157 Ky. 639, 163 S. W. 751 ; State Bank of Chicago v. King, 244 Pa. 29, 90 Atl. 453 ; Inter- national Harvester Co. v. McAdam, 142 Wis. 114, 124 N. W. 1042, 24 L. R. A. N. s. 774, n. ; Old Dominion Co. V. Bigelow, 203 Mass. 159, 89 N. E. 193, 40 L. R. A. N. S. 314; Kavanaugh v. Royal League, 158 Mo. App. 234, 138 S. W. 359; Zenatello v. Hammerstein, 231 Pa. 56, 79 Atl. 922; Cockburn v. Kingsley, 25 Colo. App. 89, 135 Pac. 1112. 8. Lovell V. Boston & Me. R. R., 75 N. H. 568, 78 Atl. 621, 34 L. R. A. N. s. 67, n. ; Standard Fashion Co. v. Grant, 165 N. C. 453, 81 S. E. 606; Nonotuck Co. v. Adams, Ex. Co., 256 111. 66, 99 N. E. 893; Fish v. Dela- ware Ry. Co., 79' Misc. 63, 141 N. Y. S. 245; M. Stone v. Postal Co., 35 R. I. 498, 87 At!. 319, 46 L. R. A. N. s. 180. See Heath v. Cable Co., 87 S. C. 219, 69 S. E. 283 (telegraph mes- sage) ; Western L'nion Co. v. Youn^ 133 S. W. 512 (Tex. Civ. App. 1911) ; 448 PART III LEADING CLASSES OF PERSONAL PROPERTY CHAPTER I SHIPS AND VESSELS § 300. Chattels Corporeal First to be Considered; Ships or Vessels and Money. Personal things of a corporeal nature, for the most part, such as com, jewels, furniture, carriages, and merchandise, need not claim special consideration in this treatise. Of animals we have spoken in another connection.^ But there are two classes of cor- poreal chattels which should here be noticed at some length. One of these consists of ships or vessels, the other of money. § 301. Ships or Vessels; History of the Law of Shipping. Ships, as the reader has already seen, are chattels, though made to plough the waters and rarely taken for transportation from place to place like land movables. And such peculiar solemnities attending their transfer are to be found under the registry laws that some have even inclined to the belief that they are not chat- tels at all ; it being undoubtedly true that the law of shipping is older than the law of freeholds and chattels; older than Bracton Pennington Bank v. Bauman, 85 Neb. Young v. Telegraph Co., 168 N. C. 36, 226, 122' N. W. 848 (chattel mort- 84 S. E. 45 (telephone message), gage registry) ; Hayward v. Sencen- No local equity jurisdiction as to baugh, 141 111. App. 395 (stockhold- foreign corporations. Kelly v. ers' liability) ; National Excliange Thomas, 234 Pa. 419, 83 Atl. 307. Bank v. Rook Granite Co., 155 N. C. 1. i^upra, §§ 48-51. See also Vol- 43, 70 S. E. 1002 ; Southworth v. ume II. as to Eetrays, 4c. Morgan, 205 N. Y. 293, 98 N. E. 490; 29 449 § 302 THE LAW OF PERSONAL PKOPEETY. [pART III. and Fleta; older in some respects than the civil law of Rome itself, as prevalent in the times of Justinian. For the famous imperial Digest pays tribute to the maritime laws of Rhodes, where commerce flourished at least a thousand years before the Christian era. Yet the Roman civil law, the Consolato del Mare, the Laws of Oleron, the Laws of Wisbuy, Le Guidon, the Marine Ordonnance of Louis XIV., the Commentaries of Valin, and the treaties of distinguished writers of Continental Europe, among whom Pothier is conspicuous, shaped and directed the growth of our commercial system. The usage of merchants, or rather com- mercial usage thus borrowed from abroad, reinforced the scanty store of old common-law precedents, and in time enabled our later jurists, such as Mansfield of England and Story of the United States, to announce those legal principles which are now recognized as constituting the Anglo-Saxon law of shipping, and which must continue to develop with the rapid growth and increasing wants of modern commence.^ § 302. The Ship a Peculiar Chattel. We say, then, that a ship is a chattel ; or, better still, that it is personal property, a movable and not real property. But it is a very peculiar kind of property, in law and in fact ; and so it has been treated from the time when insignificant craft carried mer- chandise between neighboring ports on the Mediterranean Sea, to this day, when we see large vessels built, equipped, and freighted to circumnavigate the globe.^ We use here the word " ship," too, in its general sense, as denoting any vessel employed in naviga- tion, whether a ship of war or a merchant ship, whether a steam- ship or a sailing vessel, whether a brig, a schooner, a sloop, or a three-masted vessel.'* The ship's element is not the land, nor can vessels of the larger sort attend, literally, the person of the o^vner ; 2. See 1 Pars. Shipping, c. 1 ; Abb. usages of that country. The Scotland, Shipping, preface. Maritime law is 105 U. S. 24. only so far operative in any country 3. See Jacobsen's Sea Laws, 21; 1 aa it is adopted by the laws and Pars. Shipping, c. 2. 4. See Bouv. Diet. " Ship." 450 CHAP. I.] SHIPS AND VESSELS. § 304 but when we transport a small boat over land the chattel character of all such property becomes obvious. "A ship is bom when she is launched and lives so long as her identity is preserved. Prior to her launching she is a mere congeries o£ wood and iron — an ordinary piece of personal property — as distinctly a land struc- ture as a house, and subject only to mechanics' liens created by State law and enforceable in the State courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is individually liable for her obligations, upon which she may sue in the name of her owner and be sued in her own name." ^ § 303. Division of the Present Chapter. Our brief examination of the law relating to ships, in the present chapter, will lead us to consider (1) the title to a ship and modes of transfer; (2) the persons employed in and about a ship; (3) the manner of the ship's employment; (4) marine torts, and perils peculiar to navigation; and (5) the jurisdiction of courts of admiralty. § 304. Title to a Ship, and Modes of Transfer. First, concerning the title to a ship and modes of transfer. Of part-owners we have spoken elsewhere; ^ and it remains to notice how one or more persons may acquire their interests in a ship. This is usually by building or purchase ; while at the same time, by the death of an owner, his interest will devolve upon his execu- tors or administrators, as in the case of other personal chattels. The common law makes a conveyance necessary to the sale of real estate, while mere delivery without any writing suffices to pass any corporeal or tangible chattel. And hence a ship, by some 5. Per Brown, J., in Tucker v. 6. Supra, §§ 205-214. Alexandroff, 183 U. S. 424, 438, 22 Sup. Ct. 195, 46 L. ed. 264. 451 § 305 THE LAW OF PERSONAL PROPERTY. [PART III. method of symbolical delivery, might be transferred from one owner to another, though no formal written instrument accom- panied the act of delivery. Such, at least, is the logic of the rule ; but government long ago interposed with its registration and navi- gation policy, and so universal has become the custom of giving bills of sale of a peculiar sort, that no one in our day would care to risk his title to a vessel of considerable size and value on a mere parol transfer and delivery/ § 305. The Same Subject; Registration, Bill of Sale, etc. The registration and navigation acts are said to have originated in their present form more than two and a half centuries ago, through the desire of Spain to preserve the commerce of her American colonies ; in England the policy dates from the time of Charles II. ; and in this country a national registration system was established soon after the adoption of our present constitution, with the act of December 31, 1792, modified since by various stat- utes, among which the act of 1850 is conspicuous.^ Certain priv- ileges attach to a ship which has been duly registered, and thereby acquires a national character; and in England an exact and rigid system of registration was continued in force until the middle of the nineteenth century, so as to secure a rich monopoly of the carrying trade to vessels of that country; the requirement being that every alteration in the property of a ship or vessel should be indorsed on the certificate of registry before witnesses, and should itself be registered, while every bill of sale thereof was made '' null and void " unless it contained a recital of the registry certificate at length.^ The United States statutes, on the other hand, did 7. See Abb. Shipping, 23; The Sis- 502. The English act of 1854 (17 ters, 5 Rob. Ad. 155; 1 Pars. Ship- Vict., c. 5) admitted foreign ships to ping, 55-58. the coasting trade. In 1854, too (17 8. Reeves, Law of Shipping, 35; 1 & 18 Vict., cs. 104, 120), a new stat- Pars. Shipping, 25-27; Abb. Shipping, ute amended and consolidated the pre- part 1, c. 2. See U. S. Comp. St. vious laws relating to merchant ship- 1916, § 7707 et seq. ping. Various other enactments from 9. See 1 Pars. 50; Weston v. Pen- 1854 to 1880, relative to this subject, Himan, 1 Mas. 317; 2 De G. F. & J. 452 eHAP. I.] SHIPS AND VESSELS. § 305 not declare any informal transfer null and void, at least down to a recent period; they simply denied to ships transferred without the formality of a written instrument, which recited at length the certificate of registry, the privileges of ships of the United States.^ But in 1850 — or at about the same time that Great Britain re- laxed her old policy so as to somewhat favor foreign-built vessels and " free trade " — the registry system of the United States tightened its grasp upon American vessels by declaring that no bill of sale, mortgage, hypothecation, or conveyance of a vessel of the United States, in whole or in part, should be valid against any other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice, unless the instrument was recorded at the office of the collector of customs.^ This accords with the are to be found in Vol. TT., Maude and Pollock Shipping, 4th od. (1881). The transfer of a British ship is governed by the express provisions of the Merchant Shipping Acts (1854 and acts subsequent ) , which make a clear distinction between the legal estate and mere beneficial interests therein. Chasteauneuf v. Caperyon, 7 App. Cas. 127. See Act 12 & 13 Vict, c. 29 (1850). A written agreement for sale need not be regis- tered under the English Act of 1854; nor need the special description of the ship be inserted therein. Bat- thyany v. Bouch, 29 W. R. 665. New provisions in favor of equitable mort- gages not registered are found in sub- sequent English acts. 17 & 18 Vict., c. 104 ; 25 & 26 Vict., c. 63. 1. 1 Pars. 50; Abb. Shipping, 58- 96; Hozey v. Buchanan, 16 Pet. 215. 2. 9 U. S. Stats. 440, c. 27 ; Brightly Fed. Dig. 780. For the latest phrase- ology of the United States registry acts, see U. S. Rev. Stats., §§ 4131- 4196; U. S. Comp. St. 1916, § 7707 et eeq. Barges, &c., are not subject to registration in» certain cases. 21 Stat. Large, 44 (Act June 30, 1879"). A mortgage of a vessel of the United States is not, as against the parties and such persons as have actual notice thereof, rendered invalid by the failure to record it under U. S. Rev. St., §§ 4192, 4193. Moore v. Simonds, 100 U. S. Supr. 145. For late decisions on various points con- nected with our registry acts, see 5 Sawyer C. C. 83; The Kate Heron, 6 Sawyer C. C. 106; James E. Thurber V. Sloop Fannie, 8 Ben. 429". Follow- ing the usual rule of chattel mort- gages, the mortgagee's claim upon the vessel may be subordinated to liens in rem necessarily created for repairs and supplie.s. Rumbell, The, 148 U. S. 1. See c. 4, post. Registration is not necessary to make the sale of a steamboat in Ten- nessee valid. Karr v. Schade, 7 Lea, 294. License to engage in the coast- ing trade is not to be construed as impairing the State powers. Hatch V. Wallanub Co.. 7 Sawyer C. C. 127. By act July 5, 1884, c. 221, a bureau 453 § 305 THE LAW OF PERSONAL PROPEETY. [pART III. long-settled registry policy of our several States in sales and mort- gages of real estate, and whenever, in fact, written instruments of title must be relied upon, rather than a visible possession, to estab- lish ownership or security. A bill of sale becomes, then, customary, if not indispensable, for transferring the ship absolutely from one owner to another. In England the first bill of sale, by which the property passes from the builder to the first purchaser or owner, is distinguished from bills making subsequent transfers as the " grand bill of sale." We have no such distinction in this country.^ In questions of registry and of actual and constructive notice, the same principles probably would apply in the case of a bill of sale or mortgage of a vessel, as under the long-established registry acts of our States relating to real estate; while it may be readily supposed that the United States statute of 1850 controls the State statutes relating to mortgages of personal property, so far as to make compliance with its own formalities of registry essential.'* Hence, the record- ing of a mortgage in the office of the collector of the home port of a vessel will suffice to give this mortgage priority over subsequent purchasers or mortgagees, irrespective of formalities which may be required by State laws.^ Nor can the mortgage of a vessel, duly recorded, be defeated by a subsequent attachment under a State law.^ But it is held that the statute of 1850 applies only to ves- sels which are registered, licensed, or enrolled, and that a mort- gage of vessels not answering to this description follows the registry acts of the State, and need not be recorded at the custom- of navigation is established under the 5. White's Bank v. Smith, 7 Wall, immediate charge of a commissioner. 646. A chattel mortgage on a vessel, See also more recent acts of Con- if recorded pursuant to the United gress (1917). States registry acts, is valid, although 3. Abb. Shipping, 3 ; Gordon v. East the State law of registry be not com- India Co., 7 T. R. 228, 234 ; 3 Kent plied with. Folger v. Weber, 16 Hun, Com. 133; 1 Pars. Shipping, 60; 512. Wheeler v. Sumner, 4 Mas. 183. 6. Aldrich v. .SItna Co., 8 Wall. 4. 1 Pars. ib. and cases cited; Hor- 491. ton v. Davis. 26 N". Y. 495. 454 CHAP. I.] SHIPS AND VESSELS. § 306 house.^ Nor does the act itself apply to charter-parties; nor to the lien of material-men for supplies.^ § 306. The Same Subject; Policy of Registration, License, and Enrolment. As to registration, license, and enrolment, it may be said that the policy of the United States, following the example of Great Britain, is both to confer peculiar privileges upon vessels bearing the national flag, and to exercise likewise a judicious control of the merchant service.^ Various classes of vessels are enumerated by the act of 1792 and subsequent statutes as entitled to registry, including those built within or without the United States, which belong to citizens thereof; and likewise any vessel that has been enrolled, on the enrolment and license being given up for the purpose of obtaining the registry. Before the certificate of reg- istry is given, the vessel must be surveyed by a customs officer, and security given for a proper use of the certificate. The name of a registered vessel cannot be changed except in special cases. Vessels enrolled and licensed, or licensed only, if under twenty tons, are entitled to the privileges of vessels employed in the coast- ing trade or fisheries ; and the same general qualifications are required as in case of registered vessels. Such being the system of registration, license, and enrolment, all other vessels are sub- jected by statute to large tonnage duties, in addition to the tax on imported articles. These must be paid at the time of making entry, and before permit can be granted for unlading the goods. Discriminating tonnage duties are not exacted from the vessels of such nations as abolish similar duties in favor of the United States ; 7. Voazie v. Somorby. 5 Allen. 280. assort that nationality wherever 8. 1 Pars. Shipping, 62; Mott v. found. The purpose of an enrolment Ruckman, 3 Bl. C. C. 71. is to evidence the national character 9. American vessels are of two of a vessel engaged in the coasting classes, those registered and those en- trade or home traffic, and to enable rolled and licensed. The purpose of such vessel to procure a coasting a register is to declare the national- license. Per Hughes, J., in Anderson ity of a vessel engaged in trade with v. Pacific Coast S. S. Co., 225 U. S. foreign nations and to enable her to 187, 33 Sup. Ct. 626, 56 L. ed. 1047. 455 § 307 I'il^ J^-^W OF PERSONAL PItOPERTY. [PART III. and the rate of the tax has varied since the adoptioii of the Con- stitution, being considerably increased during the years 1861-65.* The certificate of registration of a vessel and proof as to the flag carried by her are competent and convenient evidence, to whatever distant point the vessel may go, for showing her nation- ality and ownership.^ § 307. The Same Subject; Sale and Transfer of Title. When a ship is built, the builder is deemed the first owner, and to the first purchaser he transfers by a bill of sale, — or, as the English writers state it, " the grand bill of sale," — taking care to give his certificate to the owner, that the formalities of regis- tration may be complied with.'' One might suppose that parties would sometimes wish to contract with a person to build the ship for them, he doing the work and they being owners from the out- set ; but such is not the practice, though a conveyance of the keel after it has been laid vests the property thereof in the vendee, and draws after it all subsequent additions.'* There is much confusion in the authorities concerning the legal title to the vessel and its transfer, where the purchase-money is paid in instalments during the progress of the work; but the question would seem to be one of intent to be gathered from all the circumstances.'* Whether 1. See Brightly U. S. Dig. " Sliips ute provides, is American property, and Shipping; " 1 Pars. Shipping, with all the general incidents of any 25-49, and cases cited. property of an American ; although " The purpose of a register is to it has been stated that such vessels declare the nationality of a vessel are "of no more value, as American engaged in trade with foreign nations, vessels, than the wood and iron out and to enable her to assert that of which they are constructed." nationality wherever found. The pur- White's Bank v. Smith, 7 Wall. 655, pose of an enrolment is to evidence 656. The statute provisions for en- the national character of a vessel rolment are similar to those for regis- cngaged in the coasting trade, or tering, but not identical with them, home traffic, and to enable such ves- 2. St. Clair v. United States. 154 sel to procure a coasting license." U. S. 134. Mr. Justice Miller, in Mohawk, The, 3 3. 1 Pars. Shipping, 63-67 : Abb. Wall. 566, 571, A vessel owned by Shipping, 3-7. a citizen of the United States, and 4. lb.; Woods v. Russell, 5 B. & not registered or enrolled as the stat- Aid. 942 ; Moody v. Brown, 34 Me. 456 CHAP. I.] SHIPS AND VESSELS. § 307 paid for in this manner or not, and notwithstanding the property in the ship may have passed before it was completed, the builder has a common-law lien, and may hold possession until he has finished it and earned his full price.^ Again, the ship is fre^ quently sold by the master in a case of imminent and imperious necessity; by which is meant something more than mere expedi- ency and convenience; for, to justify a sale of this sort, there must have been circumstances strong enough to control the duty of sailing the ship home again, and such as would leave a prudent man no option but to sell at once.^ Wherever the master may be, he ought to get instructions from the owners before concluding to sell, if he can ; and with the increased facilities now afforded by the extension of the electric telegraph, this becomes comparatively easy ; yet if the peril be such as not to admit of this delay, he may 107; Andrews v. Durant, 1 Kern. 36; Wood V. Bell, 6 Ell. & B. 355; Haney V. Schooner Rosabelle, 20 Wis. 247; Scudder v. Calais Steamboat Co., 1 Cliff. 370 ; Sandford v. Wiggins Ferry Co., 27 Ind. 522; Butterwor'th v. McKinly, 11 Humph. 206. The doc- trine in Woods v. Russell, supra, is understood to be that the title to the unfinished ship vests usually in the builder as the work progresses. Big- elow, C. J., in Williams v. Jackman, 16 Gray, 514, observes, however, that under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is completed and deliv- ered or ready to be delivered, in the absence of stipulations, express or implied, to the contrary. And see Andrews v. Durant, 11 N. Y. 35 ; El- liott V. Edward!?, 35 N. J. L. 265; 36 ib. 449. The Supreme Court of the United States has expressed its f({>proval of the principle that there is no arbitrary rule in such case, but that in each transaction the circum- stances are decisive of the ques- tion. Clarkson v. Stevens, 106 U. S. 505, per Mr. Justice Matthews. See further Vol. II., §§ 266-268. 5. Woods v. Russell, 5 B. & Aid. 942. Contracts for building vessels, or for labor done or materials fur- nished in their construction, are not maritime contracts. The Tattle v. Buck, 23 Ohio St. 565; Thorsen v. Martin, 26 Wis. 488; Edwards v. Elliott, 36 N. J. 449; s. c. 21 Wall. 532; Foster v. Busteed, 100 Masi*. 409; Sheppard v. Steele, 43 N. Y. 52. Liens are enforceable in a State court accordingly. Ib. ; and see Dorr v. Waldron, 62 III. 21. 6. 1 Pars. Shipping, 68-74; Abb. Shipping, 17; Somes v. Sugrue, 4 C. & P. 276; New England Ins. Co. v. Brig Sarah Ann, 13 Pet. 387; The Amelie, 6 Wall. 18; Peirce v. Ocean Ins. Co., 18 Pick. 83; Butler v. Mur- ray, 30 N. Y. 88. 457 I 308 THE LAW OF PERSONAL PROPERTY. [pART III. act promptly for the good of all concerned.^ The ship being law- fully and justifiably sold, the purchaser will take an absolute title divested of all liens.^ So, too, courts of admiralty assert an authority which they seldom, if ever, exercise, that of ordering the sale of a vessel because unseaworthy or unfit for service ; and they condemn ships as prize or for forfeiture as contraband, or for smuggling, or to pay salvage, and to satisfy bottomry bonds and maritime liens generally; the decree under which the sale is made being, apparently, good and binding the world over, unless vitiated by fraud.^ But the admiralty court must be a regular one in order that foreign nations recognize its jurisdiction.' § 308. The Same Subject; What Appurtenances Pass Under Instruments of Transfer. What are the appurtenances of a ship, how much passes by the word " ship," or the phrase " ship and its appurtenances " or " apparel " or " furniture," in instruments of transfer, is not clearly established by the authorities. Usage aids in determining the question, — as, for instance, under a policy of insurance ; but mere connection with the ship is not sufficient unless the thing be appropriate for use with the ship ; and, as in the case of fixtures, there may be a constructive annexation to the ship without an actual attacTiment, the use or destination being mainly regarded. Cargoes do not pass as appurtenances ; nor would ballast usually ; 7. Pike V. Baleh, 38 Me. 302; New 1911), (notice of maritime claim to England Ins. Co. v. Brig Sarah Ann, purchaser). 13 Pet. 387. 9. Reid v. Darby, 10 East, 143; 8. The Amelie, 6 Wall. 18. But as The Tilton, 5 Mass. 4&5; 1 Pars, to other special liens of necessity, cf. Shipping, 74-77; Abb. Shipping, 19 Rumbell, The, 148 U. S. 1. et seq. See Gonzales v. Terry, 102 S. C. 86, As to government or owner pro 86 S. E. 207, as to sale and delivery hao vice, see American S. S. Co. v. of a steamship; The Orlando, 214 United States, 239 U. S. 202, 36 Fed. 271 (N. J. D. C, 1914), (bill Sup. Ct. 76 (military service). of sale, etc., not essential); The 1. lb.; The Flad Oyen, 1 Rob. Dana, 190 Fed. 650 (N. Y. D. C, Adm. 135. See Grant v. McLachlin, 4 Johns. 34. 458 CHAP. I.] SHIPS AND V^ESSELS. § 309 nor a chronometer in all cases ; and as to the ship's boat, there is some uncertainty; but sails, rigging, and rudder are among a ship's appurtenances ; and, in general, whatever is on board the ship for the objects of the voyage and adventure on which it is engaged.^ A ship is always the same, though all the materials which at first gave it existence had successively disappeared ; and if taken to pieces for the purpose of reconstruction, the ship pre- serves its identity; though not, it is said, if taken to pieces with no such intent and afterwards reconstructed in part.^ § 309. The Same Subject; Taking Possession Under a Trans- fer; Rule of Caveat Emptor, etc. As a ship may be sold at one port while lying at another, or upon the high seas, it is evident that immediate delivery of posses- sion is often impossible, while for the most part possession must be rather symbolical than actual. So far does the rule that the sale of a chattel without accompanying possession is a badge of fraud become inapplicable to property of this description that we find bond fide transfers of a ship on good consideration sufficient to vest a title in the purchaser, provided only that he takes posses- sion as soon as may be. The period usually recognized in Eng- land and the United States, within which the vendee or mortgagee should take possession, is a reasonable time after the ship's arrival in port; though further precautions may be desirable, for the purpose of compliance with the registry statutes, and to give due notice to the public.'^ The transfer, then, unaccompanied by pos- session, does not give an inchoate right, but a complete right, subject, however, to be defeated by unreasonable delay in taking actual possession.^ The usual rules as to evidence, warranty, and agency apply to the sale of ships as to the sale of personal property 2. See 1 Pars. 78, n., and cases 3. Molloy, book 2, c. 1, § G; 1 Pars, cited; Abb. Shipping, 5, 6; Bouv. Shipping, 82. Diet. "Ships." So, too, under a 4. Voazio v. Romerby, 5 Allen, 280; mortgage, necessary articles subsc- 1 Pars. Shipping, 82 et seq.; Bright, quently substituted. 25 Q. B. D. 328. 5. lb. Fed. Dig. 780; Abb. Shipping, 28. 459 § 311 THE LAW OF PEKSONAL, PROPERTY. [PART III. generally; but as the mutual stipulations appear in a written instrument, there is comparatively little latitude for discussion as to what might have been said or intended when the parties made their bargain.^ There is an implied warranty that the ship shall be fit for the purpose for which it was built/ And the much criticised doctrine of caveat emptor likewise prevails, subject to the usual qualifica- tion that the seller shall not actively deceive the purchaser as to defects in the property.^ § 310. Concerning the Persons Employed in and about a Ship. Second, concerning the persons employed in and about a ship. These are, chiefly (leaving out of view the ship's husband or man- aging owner, of whom we have spoken elsewhere ^ ) , the master of the ship and the seamen. § 311. The Same Subject; Master's Rights and Duties. The master (sometimes known as the captain or the ship's hus- band) is the person entrusted with the care and management of the ship on its usual employment. His position is one of peculiar responsibility; and great care is necessary in selecting a man honest and competent for encountering the perils of the deep and conducting the ship and cargo safely to port ; besides super^dsing the loading and unloading of the goods. The ancient sea-laws and ordinances seem to show that the master was almost invariably a part-owner in those days ; but the rule is now otherwise, the master having ordinarily no property in the ship. And while in some countries a previous examination is required, in order to test his nautical skill, the master of a merchant vessel in England and the United States may be selected by the owners at their discre- tion.^ The rights and duties of the master on ordinary occasions 6. See 1 Pars. Shipping, 86-89; 154; Taylor v. Bullen, 5 Ex. 779; Bright. Fed. Dig. 780. Dyer v. Lewis, 7 Mass. 284. Se Vol. 7. See Shepherd v. Pybus, 3 Man. II., a& to Sales. t, G. 868; Cunningham v. Hall, 4 9. § 214. Allen, 268. 1. Abb. Shipping, 118, 119; 2 Pars. 8. Baglehole v. Walters, 3 Campb. Shipping, 3 et seq. See § 214, supra. 460 CHAP. I.] SHIPS AND V^ESSELS. § 311 are regulated for the most part by custom. As between himself and the owners he is bound to exercise such skill and diligence as the duties of his position demand. As to all with whom he deals, reasonable care, prudence, and fidelity are expected of him ; and he may be sued if mischief results from the want of them, whether the error be that of the head or the heart only.^ Usage gives him a certain percentage on the freight, over and above his wages, which is knovm as primage, and some privilege in carrying goods for himself or others.^ His wages are due him even though the ship be captured or wrecked. As to his powers, they are those of an agent with a scope ade- quate for the purpose of his momentous employment; and when abroad, without ready opportunity of consulting the owners, his authority to act on their behalf in the exercise of discretion be- comes greatly enlarged. It is said that the master is " the confi- dential servant or agent " of the owners at large.'' He is not ordinarily presumed to have a right in the home port to make a charter-party, nor to order repairs, nor to raise money on bot- tomry ; but all these things he may do abroad : for the rule is that he may bind by lawful contracts which relate to the usual employment of the ship and are within the reasonable scope of his ordinary powers.^ By the general rule of the maritime law he may hire the seamen, and the contract he makes with them will ¥ind the owners.^ The master is, in most cases where he makes 2. Bright. Fed. Dig. "Shipping," Shipping, 8-10; Abb. Shipping. 126, 786: Piirviance v. Angus, 1 Dull. 184. 127. See Perkins' n., correcting Abb. Ship- 6. 2 Pars. Shipping, 11. Ciistor* fing, 119. Evidence as to duties of may, if general and well known, au- officers of vessels, see Chamberlayne thorize the master to insure a vessel Ivid., § 2300. for the benefit of the owners without 3. 2 Pars. Shipping, 4, 5; Pawson their express direction. Adams v. y. Donnell, 1 Gill & J. 1; Scott v. Pittsburgh Ins. Co.. 95 Penn. St. 348. Miller, 5 Scott, 13, 1.5; § 214, supra, But as to a master's implied power 4. See Abb. Shipping, 124. to bind the OA\Tiers by a penal bond. 5. Provost V. Patchin, 5 Seld. 235; see Mitchell v. Chambers, 43 Mich. Jordan v. Young, 37 Me. 276; The 150; Gager v. Babcock, 48 N. Y. 154. Tribune, 3 Sumner, 144; 2 Pars. A master's contract for fittiug out, 461 § 311 THE LAW OF PERSONAL PROPERTY. [pART III. a contract for his ship, largely responsible. And if goods on board are injured bj his unskilfulness or misconduct, or if they are stolen or lost so as to make the owners responsible, the master would generally be responsible likewise. The owners are not only liable to third persons for the contract of the master, but also for his wrongful acts when done within the scope of his employment. But for his wilful and malicious acts beyond such a scope they are not liable; as where he wantonly runs another vessel down, or without the knowledge and authority of the owners turns pirate ; though the limit to the owners' liability is not easily defined, espe- cially where they have incurred the risks and responsibilities of common carriers.^ Where the owners are obliged to pay damages for the master's wrong-doings, they may sue him in their turn; and he is responsible to them if he violates to their injury any material instructions under which he sailed.^ The relation of the master to the cargo is somewhat different from that which he bears to the ship; and this relation changes during the period which elapses from the date of lading to that of unlading. He is generally bound to receive the cargo and stow it properly. But while on the voyage he is regarded in respect to the cargo as master of the ship only. When at length the goods have reached their destination, he drops the character of master, and deals with the cargo, in unlading it, as a supercargo or con- signee. Sometimes, however, the functions of master and super- cargo or consignee are combined at one and the same time.^ victualling, and repairing, and which See as to " common carriage " lia- binds him personally, binds the owner bility, Schoul. Bailm., §§ 476, 573. also, unless it is clearly shown that For exemption of owners from liabil- credit was given to one exclusive of ity to a seaman for the master's acts the other. Williams v. Windley, 86 on the ground of " common employ- N. C. 107. And see supra, §§ 206, ment," see Hedley v. Steamship Co. 214. (1894), App. C. 222. 7. Abb. Shipping, 131, Perkins' n. ; 8. lb.; Brown v. Smith, 12 Cush. Purviance v. Angus, 1 Dall. 180; 366. Bright. Fed. Dig. 785, 786; 2 Pars. 9. 2 Pars. Shipping, 20-22; Cook Shipping, 26-31; The Druid. 1 W. Com. Ins. Co., 11 Johns. 40; Day v. Rob. 391. Owners of a privateer are Noble, 2 Pick. 615. See Mephams v. held liable for the torts of the master. Biessel, 9 Wall. 370. 462 CHAP. I.] SHIPS AND VESSELS. § 312 § 312. The Same Subject; Master's Powers in an Emergency. But the master of a ship has an enhirged authority in cases of emergency, which is usually denominated his ^' power from neces- sity." This it is that justifies him in ordering repairs and sup- plies in a foreign port, borrowing money on the security of the ship, or even selling the ship as a last resort; by any or all of which acts the owners become bound as much as though the trans- action were their own in person. But the necessity must be real and positive, in order that the master may assume such vast authority over property belonging to his employers ; and the neces- sity which justified him in ordering a sale must be far more stringent than that which authorizes the borrowing on the ship's security; while that which authorizes the borrowing is usually considered more urgent than that which makes the owners respon- sible for repairs.^ " Whatever is fit and proper for the service on which a vessel is engaged," said Chief Justice Abbott, " whatever the owner of that vessel, as a prudent man, would have ordered, if present at the time, comes within the meaning of the term ' neces- sary,' as applied to those repairs done or things provided for the ship by order of the master, for which the owners are liable." ^ Hence, to enforce a lien for repairs and supplies, whether express or implied, the rule is well established in this country that the creditor must prove that the repairs or supplies were necessary, or believed, upon due inquiry and credible representation, to be necessary in the particular foreign port. And it is further ruled that where proof is made of necessity for the repairs or supplies, or for funds raised to pay for them by the master, and of credit given to the ship, a presumption will arise, conclusive, in the absence of evidence to the contrary, of necessity for credit. The ordering by the master of supplies or repairs upon the ship's credit is sufficient proof of such necessity to support an implied hypothecation in favor of the material-man, or of the ordinary lender of money, acting in good faith, to meet the wants of the 1. Abb. Shipping, 150, 160; 2 Pars. 2. Webster v. Seekamp, 4 B. & Aid. Shipping, 13-18. 352. 463 § 313 THE LAW OF PERSONAL PROPERTY. [pART UI. ship. And to support hypothecation by bottomry, evidence of actual necessity for repairs and supplies is required; and, if th« fact of necessity be left unproved, evidence is also required of due inquiry, and of reasonable grounds of belief that the necessity was real and exigent.^ Such, in substance, is the exposition of the law by the Supreme Court of the United States, which is rather more liberal to the lender of money upon credit than formerly."^ While, however, in this country, the master may borrow money not only for the purpose of buying necessaries for the ship, but to pay for necessaries already furnished, the English cases seem to discounte- nance borrowing after the work is done to pay the debts incurred.^ § 313. The Same Subject. Even over the cargo the master acquires extraordinary power under extraordinary circumstances. Where he has neither money nor credit, and cannot communicate with his owners, he may sell part of his cargo, if he cannot make necessary repairs and prose- cute his voyage except by so doing.^ He may sell the whole cargo, if he can neither take it on nor place it on another ship, when made up of perishable goods whose value would be greatly diminished or utterly destroyed before instructions could be obtained from the owner.'' Yet whatever he does with the cargo for the purpose of raising funds for the voyage is upon the supposition that other means of obtaining necessary supplies, such as drawing bills on the owners, hypothecating the ship, and using the owners' credit, have been exhausted. And we need hardly add that the case must be one of actual and urgent necessity, and of prudent conduct under the stress of such necessity.^ For the cargo, unless, indeed, 3. The Grapeshot, 9 Wall. 129; Ex. 886; Robinson v. Lyall, 7 Price, The Lulu, 10 Wall. 192; modifying 592. Pratt V. Reed, 19 How. 359. 6. The Star of Hope, 9 Wall. 203; 4. lb. See also Bliss v. Ropes, 9 2 Pers. Shipping, 23. Allen, 341. 7. 2 Pars. Shipping, 23 5. 2 Pars. Shippnig, 16; Brightly 8. Owners held not hound by the Fed. Dig. 786, 787; The Grapeshot, acts of the master where the latter 9 Wall. 129; Belden t. Campbell, 6 made expensive repairs most impm- 464 CHAP. I.] SHIPS AND VESSELS. § 313 it belongs to the owners, is one thing, and the ship quite another, so far as the master's authority is concerned.'^ Yet he has duties connected therewith, even where no great exigency has arisen; for he should stow away properly, ventilate, unpack and dry, and otherwise seek to preserve goods on board the vessel peculiarly subject to damage, in the exercise of good judgment; though he need neither repair, nor delay his voyage for the sake of his cargo. ^ In case of capture the master should do all in his power, con- sistent with honor and a reasonable diligence, to get the cargo restored.^ And in the emergency of stranding and other sea perils, we shall see presently that both ship and cargo contribute for acts of the master done for the common benefit of the property exposed to danger. All such special emergencies extending the scope of the master's powers over ship or cargo presuppose that he is not within communicating distance as to owners, and must act upon his own responsibility.^ dently. Stirling v. Phosphate Co., 35 Md. 128. The master cannot be required by a charterer to prejudice the interest of the owners whom he represents. Hinckley v. Wilson Co., 205 Fed. 974 (Me. D. C, 1913). Vessel liable to penalties' although the master was at fault. The Confidence, 201 Fed. 340, 119 C. C. A. 578. And .see The Bethulia, 200 Fed. 876 (Mass. D. C, 1912), (no lien for wages against owner) ; The Loch Rannoch, 192 Fed. 219 (Me. D. C, ig'll), (duty to sign bill of lading) ; The Jason, 225 U. S. 32, 32 S. Ct. 560 (negligent stranding) ; Symons v. 10,466 Barrels of Cement, 195 Fed. 1017 (Wash. D. C. 191), (expense in emergency); Jenkins S. S. Co. v. Preston, 186 Fed. 609, 108 C. C. A. 473; The H. A. Baxter, 173 Fed. 260 (Conn. D. C, lOiOg") , (repairs abroad needful) . See also sec. 214, supra, as to " ship's husband." 9. The Collenberg, 1 Black, 170: Chouteaux v. Leech, 18 Penn. St. 224; Bird V. Cromwell, 1 Mo. 81. 1. The Star of Hope, 9 Wall. 203. 2. Hannay v. Eve, 3 Cr. 242. 3. See Gager v. Babcock, 48 N. Y. 154. When the master of a foreign vessel has authority to contract upon the credit of his vessel for necessary repairs, the credit of the vessel is pre- sumed to be an element in any con- tract he may make for such repairs. The Plymouth Rock. 9 Ben. 79. As to acts of the master terminat- ing his employment as such at the election of the owners, see Budge v. Mott, 47 Wis. 611. The owners of a vessel, as well .i-* the master, are liable for injuries caused by the negligence or unskilful- ness of the master, provided the act 30 465 § 315 THE LAW OF PERSONAL PROPEKTY. [pAKT IIL § 314. The Same Subject; Master, When Specially Employed. Finally, it may be observed of the master that he may have been employed, not by the owners, but by those who have chartered the vessel for a particular voyage, in which case he may bind the charterers, and of course the ship ; but probably not the owners personally, without some special authority.'* Owners may other- wise confer a special agency.^ And sometimes a master is ap- pointed abroad by a consul, or any official person, agreeably to the usage of merchants, and usually in an extreme emergency, in which case he exercises the powers of an ordinary master under like circumstances.^ § 315. Rights and Duties of Seamen. Seamen, under the master's direction, and that of his subordi- nate officers, attend to the details of navigation ; and their services are indispensable to the proper emplo_\Tnent of the ship. This class of persons, whose generosity and improvidence are proverbial the world over, has become an object of peculiar solicitude to the courts; and there are numerous statutes enacted in England and this country, which aim to protect humanely those who navigate the deep, as men unable to protect themselves. Seamen cannot be shipped for a voyage unless the master procures fairly their signa- be done within the scope of his au- an error of judgment under circum- thority as such. Thompson v. Her- stances of great difficulty and danger, mann, 47 Wis. 602. But where the his certificate may be suspended, un- master uses the vessel on the service der the English Shipping Act of 1854. of a third party, such party knowing See 4S L. T. ?f. s. 28. Owners have that the employment is wholly un- a right to dismiss an officer who pro- authorized, the owners of the vessel motes insubordination ; and the latter cannot be held liable for damages may forfeit his right to subsequent sustained by such third party dur- wages. 29 W. R. 508. And see 5 ing such unauthorized employment. P. D. 254. The Steam Tug R. F. Cahill, 9 Ben. 4. 2 Pars. Shipping, 18. 19. 352. A master cannot, by selling out 5. The Steamboat Metropolis, 9 his interest as an owner, confer any Ben. 83. right to command. Williams v. Ire- 6. lb. See the Cynthia. 20 E. L. land, 11 Phila. 273. For a master's & Eq. 623; The Jacmel Packet, 2 wrongful act or default, through not for Ben. 107. 466 CHAP. I.] SHIPS AND VESSELS. § 315 tures to shipping articles which must declare the voyage and length of time for which each shall be shipped, and be in all respects reasonable and precise.^ Provisions of due quality and quantity must be furnished ; the ship must be seaworthy ; and by the general commercial law, seamen who become sick, wounded, or maimed in the discharge of duty must be cared for and sup- plied with medicines ; not to speak of statutes which require ves- sels when bound on distant voyages to be provided with a suitable medicine chest.^ There are various ways in which seamen may be shipped, so far as concerns their compensation. Sometimes (though rarely in this country) they are employed to receive a certain proportion of the freight earned ; sometimes for a certain voyage, to be paid a round sum at the close; sometimes on shares, as in the case of whaling and fishing ventures ; but most commonly on monthly wages for a certain voyage or during a definite period.^ If a seaman is dis- missed without cause before the voyage begins, he is entitled to wages for the time he serves, besides a reasonable compensation for special damages.^ Where the voyage is broken up by misfortune, or the seaman becomes disabled by sickness not caused by his own fault, the wages are still due.^ And if the seaman is compelled to 7. 2 Pars. Shipping, 34-47; 1 Stats. aster to the vesset. renderin": the dis- at Large, 131; The Juliana, 2 Dods. charge necessary; and to send home 504; Harden v. Gordon, 2 Mas. 541; seamen in other ships, if need be. Bright. Fed. Dig. "Seamen," 755-757; And heavy penalties are visited upon Abb. Shipping, 607. See Sweeney v. the master who discharges a seaman Cloutman, 2 Cliff. 85. in a foreign port against his consent, 8. 2 Pars. Shipping, 75, 78, 80; 1 and without good cause, while the Stats, at Large. 131, 132, 134; Bright. seaman may recover full indemnity Fed. Dig. 755, 757, 771 ; Abb. Ship- for loss of time, and expenses besides, ping, 615. Marine hospitals are es- 2 Pars. Shipping. 84-88. tablished for the comfort of old and 9. Abb. Shipping, 606; 2 Pars. disabled sailors, and supported by a Shipping, 47 et seq. : Taylor v. Laird, sort of levy upon those who earn 1 H. & N. 266; Bright. Fed. Dig. 764, wages; and whenever a sailor has 765. been discharged in a foreign port, it 1. Parry v. The Peggy, 2 Browne is the duty of the American consul Civ. and Adm. Law, 533. to see that he is paid three months' 2. Increased danger of tlie .service, extra wages, except in case of a dis- as where war is declared by the em- 4G7 § 315 THE LAW OF PERSONAL PROPERTY. [PART lU. desert by the cruelty of the master or other officers, he may claim wages in full."' Disobedience, desertion without cause, and gen- eral misconduct on the part of seamen, are severely punishable, in order that discipline may be enforced at sea ; yet the law feels the refining influences of a civilized age ; for while, in extreme cases, like mutiny, the officer in command of a ship might resort to extreme measures, even to shooting a ringleader, he is not now permitted by our statute to apply deliberate flogging, as formerly, by way of punishment. Public sentiment sets strongly against those cruel and violent methods of discipline which petty despots at sea once deemed so essential to maintaining their own dignity; and in general the only remedies available to enforce discipline and good behavior are forfeiture of wages, in whole or in part, extra labor, irons, and confinement or imprisonment."* Even in the matter of forfeiting wages, the courts by no means favor the master. For while a justifiable discharge of a seaman for bad conduct will work a for- feiture of wages previously earned, the maritime law does not allow a total forfeiture for a trivial irregularity, nor for a single act of disobedience, even if a violation of the shipping articles.^ And where acts of insubordination have been adequately punished, a subsequent forfeiture of wages will not be allowed.^ ploying government, may justify the and absence without leave. Habitual seaman in abandoning. CNeil v. drunkenness of a master may forfeit Armstrong (1895), 2 Q. B. 418. his right to wages. The Maeleod, 5 3. See 2 Pars. Shipping, 52, 53, and P. D. 254. cases cited; Bush v. Sehooner Alonzo, For the payment of their wages 2 Cliff. 548 ; Barker v. Baltimore, &c., seamen may sue in personam at com- R., 23 Ohio St. 45 ; Bright. Fed. Dig. mon law with the process of seques- 772. See Act June 7, 1872, c. 322. tration. Leon v. Galceran, 11 Wall. 4. Bright. Fed. Dig. "Admiralty," 185. And they have also a lien, 26; 2 Pars. Shipping, 88-105; Act of which attaches to the ship and the 1850, c. 80, 9 Stats, at Large, 515. freight, and all the proceeds thereof, 5. See Bright. Fed. Dig. Suppl. 167, and follows them into whose hands "Seamen." soever they may go; and this lien is 6. lb. See English Stat. 43 & 44 not avoided by a sale of the ship; Vict., c. 16 (1880), as to payment of nor can it be subordinated to claims wages, seamen's lodgings, desertion, under a bottomry or hypothecation, 468 CHAP. I.] SHIPS AXD VESSELS. § 316 § 316. Rights and Duties of Pilots. Pilots have important duties in connection with the steering of the ship through dangerons places ; and while on board they have a control and responsibility second only to that of the master, and in some respects even greater. The word " pilot " had formerly two meanings : one was the pilot for the whole voyage, or the sea pilot, the other was the pilot who carried the ship through the harbor to which he belonged. In the latter sense the word is now generally used with us, and numerous statutes have been enacted in the several States, regulating the whole subject of a pilot's employment.'^ thoujrb perhaps it is postponed to a collision lien ; nor does the mere loss of possession affect this privileged lien of seamen, so long as there is not delay amounting to a waiver or negli- gence. Brown v. Lull, 2 Sumner, 443; Sheppard v. Taylor, 5 Pet. 675; 2 Pars. Shipping, 59-62; Bright. Fed. Dig. 767: The Great Eastern, L. E. 1 Ad. & Ecc. 384. See alSo, as to action at common law, Wilson v. Borstel, 73 Me. 273. Expenses in- curred for seamen's wages and sub- sistence are items of charge proper to be included in the adjustment of general average. Barker v. Baltimore, &c., R., 22 Ohio St. 45. Seamen held entitled to priority of payment out of proceeds of the sale of the ship in court, over material-men who fur- nished supplies to the vessel during their employment. The Mary A. Rich, 9 Ben. 187. And see The Coun- tess of Dufferin, 10 Ben. 155; The Uncle Tom, 10 Ben. 234 ; Gallagher v. Murray. 10 Ben. 290; The Bark Whiton, 10 Ben. 369; The Bark Vigus, 10 Ben. 385. In the absence of any evidence as to the law of the place where the contract of shipment is made and is to be substantially performed, the law maritime will be presumed to control the contract. The Countess of Dufferin, 10 Ben. 155. Under the English Merchant Ship- ping Act (1854) and subsequent acts a seaman is no longer liable to im- prisonment for neglecting to join his ship, but other remedies are substi- tuted. See Great Northern Steam- ship Co., 11 Q. B. D. 225. 7. Bright. Fed. Dig. "Navigation," 588; Abb. Shipping, 195 et seq.; 2 Pars. Shipping, 106-119', and cases cited. See Steamship Co. v. Joliffe, 3 Wall. 450; The Tx'vi, L. R. 2 Ad. & Ecc. 102; Ex parte McNiel. 13 Wall. 236; 15 Fed. Rep. 495; Cook v. Curtis, 58 N. H. 507. Pilotage is made compulsory by shipping acts, under various prudential circum- fetanoes. See The Vesta, 7 P. D. 240; (1895) 1 Q. B. 566. The owner of a ship is not necessarily exempt from liability for damages occurring while a pilot is on Iward ; though much de- pends upon the statute responsibility conferred on a pilot while employed necessarily. The Guy Mannering. 7 P. D. 132 ; The Clan Gorden, 7 P. D. 469 § 319 THE LAW OF PERSONAL PROPERTY. [PART III. § 317. Rights, etc., of " Material-men." One often hears of " material-men," and their liens as concerns a ship. The name '^ material-men " commonly applies to those who are employed to build, repair, or equip a ship, and who in general furnish work or necessary supplies for the vessel. These persons have not only a common-law lien for their work and material and supplies, but more ample liens conferred and enforced by local statutes.^ § 318. Methods of Employing a Ship; General Ship and Charter-Party. Third, as to the manner of the ship's employment. There are two ways in which a merchant ship may be employed for the pur- pose of venture and profit. One is by the owners themselves, who send the ship on some particular voyage, and agree with various parties to transport their merchandise to the place of destination;, the ship thus employed being often styled a general ship. The other way is for an entire ship, or at least the main portion of it, to be let for a determined voyage to parties desiring it by a written instrument familiarly known as a charter-party.^ The case is analogous to that of a m.an owning a warehouse, who may either occupy it for himself and sub-let as he pleases, or may lease the whole building to others at a specified rate of compensation and permit them to sub-let at their own risk and advantage. §319. The Same Subject; General Ship; Contract of Freight. Where the owners use their own ship, they may, to be sure, carry their own merchandise exclusively; but in general they take that of others besides at a sum agreed upon, which sum is usually known as " freight ; " this word being also applied, more 190. For learned discussion of pilot- 799'; The General Smith. 4 \M]eat. aare laws, see Anderson v. Pacific 438 ; Abb. Shipping, 142 ; The Nep- Coast S. S. Co., 225 U. S. 187, 32 tune, 3 Hagg. Adm. 129. Sup. Ct. 626, 56 L. ed. 1047. 9. Abb. Shipping, 123 ; 1 Pars. 8. 3 Pars. Shipping. 141-145, and Shipping, 170, 171. cases cited; Bright. Fed. Dig. 797- 470 CHAP. I.] SHIPS AND VESSELS. § 319 loosely, to the goods themselves which are taken for hire.^ The contract for carriage of goods on freight is usually considered as made by or on behalf of the owners. The ship-owTiers undertake and promise to carry safely in their ship the goods of the shipper to the destined port, in the usual way, without unnecessary delay or deviation ; and, on the other hand, the shipper is bound, if the goods are so carried, to pa}-- to the owners of the ship the freight earned by the carriage. The ship and the cargo have correspond- ing rights and also corresponding liens for the enforcement of those rights.^ If the goods are once laden on board, the right of the ship-owners to carry them the whole distance, and to claim full freight, is complete, unless they choose to permit the shipper to take the goods out again. But if the ship-owners fail to act up to their own stipulations; if the ship is unseaworthy, or badly manned ; or if it be unnecessarily delayed in completing the voy- age, the ship becomes subjected to the shipper's lien for indemnity against the loss or diminution in value of his goods, and the owners are responsible for the consequences.^ In its nature the contract for the conveyance of merchandise for a round sum is an entire contract; and unless it be completely performed by the delivery of all the goods at the place of destination, the owners will, in general, derive no benefit from the time and labor expended on a partial performance ; while if the owner of the cargo be the cause of its not being transported to the port of destination, full freight may be recovered."* The contract for freight is not only, generally speaking, an entire contract, in that no freight is payable unless the whole voyage is performed, but also as to the quantity of the goods, no freight being payable unless all are delivered.^ 1. Bright. Fed. Dig. 791, 79'2 ; 1 3. Bright. Fed. Dig. 791. 795; 1 Par.s. Shipping, 171; Abb. Shipping, Pars. Shipping, 17.5-180. 319, 405; Robinson v. Manufacturers' 4. Caze v. Baltimore Insurance Co., Ins. Co., 1 Met. 143. 7 Cr. 358; Hart v. Shaw, 1 Cliff. 358; 2. lb.; Flint v. Flemyling, 1 B. & The Nathaniel Hooper, 3 Sumner, Ad. 45; The Seh. Sarah, 2 Sprague, 542. 31. 5. lb. See 1 Pars. Shipping. 204- 210; Schouler Bailments, § 529. 471 § 320 THE LAW OF PERSONAL PEOPERTY. [PAET IIL Sometimes the freight money is paid in advance, in whole or in part ; in which case, if the goods -are not delivered or the voyage not performed, questions somewhat perplexing may arise, which, however, are rather of fact than of law.^ The voyage never hav- ing been begun, no freight money can be claimed by the owners; but, since acts of God or a public enemy, and the risks of sea perils generally, are not ordinarily assumed by those who carry merchandise in ships, any interruption which occurs after the voyage is begun, whatever be the delay it causes, if it occur from a peril of the seas and without the master's fault, as by capture and recapture, embargo, and the like, will not prevent the owners from claiming the whole freight, provided the vessel finally arrives without avoidable delay, bringing the cargo to the port of final destination/ § 320. The Same Subject. The contract of freight, like any other contract, may contain special stipulations, to which owners and shippers must conform ; and illegal contracts of this nature are, of course, void; as, for smuggling against the laws of the country to which the ship be- longs, or sailing under the license of an enemy.^ So the shipper may accept his goods at an intermediate port, and thus make him- self liable for freight pro rata, at least, and even for the entire freight if the carrier was disposed to complete the transit.^ And 6. Manfield V. Maitland, 4 B. & Aid. Taylor, 4 Ell. & B. 219: Curling v. 582; 1 Pars. Shipping, 211. The Long, 1 B. & P. 634; 1 Pars. Ship- English rule, which is admitted to be ping, 220; M'Bride v. Mar. Ins. Co., harsh, and unlike that of other eoun- 5 Johns. 299. tries, is that payments made in ad- 8. See Wilson x. London, &c., Navi- vance on account of freight cannot be gation Co., L. R. 1 C. P. 61 ; The recovered, though the vessel be lost. Aurora, 8 Cr. 203: 1 Pars. Shipping, Byrne v. Schiller, L. R. 6 Ex. 319. 213, 214. As to enforcing a contract for ad- 9. Caze v. Baltimore Insurance Co., vance freight after the ship is lost, 7 Cr. 358; Bright. Fed. Dig. 792; see Smith, Hill & Co. v. Pyman. Bell Cook v. Jennings, 7 T. R. 381 ; 1 Pars. & Co. (1891), 1 Q. B. 742. Shipping, 239-244. 7. Bright. Fed. Dig. 792 ; Tindal v. 472 CHAP. I.] SHIPS AND VESSELS. § 320 in order that the ship-owners may earn and receive their freight, the law permits the master, if unavoidably delayed from damage to the ship or other like cause, to send his cargo forward in another vessel, or even by land conveyance, to its place of destination, and then claim full freight ; and there are circumstances under which it would be clearly his duty to do so, for the benefit both of the shipper and the ship-owners. He may in an exigency charge the excess of the cost of transshipment over his freight to the owTier of the goods. ^ But under ordinary circumstances ships are treated as " common carriers," ^ the carriage of goods being, how- ever, regulated considerably by the express terms of the bill of lading; and the merchandise must be delivered at the port of destination and to the proper parties, without unreasonable delay or damage from the ship-owners' fault. There can be no right to claim freight, ordinarily, unless delivery is made, or is prevented from being made by the act or fault of the shipper, or of the per- son to whom the goods were consigned.^ Usage regulates the mode of delivery, which should be reasonable in time, place, and circum- stance; and the general rule is, that a delivery on the wharf with notice to the consignee is both proper and sufficient. The wharf must be suitable for the cargo ; and the master's duty, as to goods which are unclaimed or which the consignee chooses to accept, is to store them at the expense and for the benefit of all interested.'* 1. Rosetto V. Gurney, 11 C. B. 176; v. Manning, 3 Wils. 429; Cope v. Saltus V. Ocean Ins. Co., 12 Johns. Cordova, 1 Rawle, 203; Gronstadt v. 107; Hugg V. Augusta Ins. Co., 7 Witthoff, 15 Fed. Rep. 265; Hod.iJtdon How. 595; 1 Pars. Shipping, 231-238. v. Xew York R., 46 Conn. 277. In See Thwing v. Washington Ins. Co., Sa^ouler Bailments, part vi., this sub- 10 Gray, 443 ; Lemont v. Lord, 52 Me. ject is considered at length. And see 365. Ideal Leather Goods Co. v. Eastern 2. See Schoul. Bailments, part vi., S. S. Co., 220 Mass. 133, 107 K E. at length, as to common carriers. 525. 3. Bright. Fed. Dig. 791 ; Clark v. For provisions in bill of lading, etc., Barnwell, 12 How. 272; Gibson v. limiting liability, see Lines v. Atlan- Sturge, 10 Ex. 622; 1 Pars. Shipping, tic Transport Co., 223 Fed. 624. 139 220, 245. C. C. A. 170 (a void provision) ; Fur- 4. Brittan v. Barnaby, 21 How. 527; ness v. Randall, 124 Md. 101, 91 Atl. 2 Pars. Shipping, 222-229; Golden 797 ("perils by the sea" excuse); 473 §321 THE LAW OF PERSONAL PEOPEKTY. [PAET IIL § 321. General Ship; the Subject Continued; Bills of Lading. The mutual intent of parties concerned in the carriage of goods for freight is expressed by that document of general use among commercial nations from earlj times, which is known as a bill of lading.^ The bill of lading is generally signed by the master, but is sometimes signed and delivered in the counting-room of the ship- owners by their clerk. This document is in substance a written acknowledgment by the master that he has received the goods therein described for the voyage stated, to be carried on the terms stated, and delivered to the persons specified in the bill. The bill of lading is a very important instrument, being a receipt for the goods as well as a contract which expresses in writing the terms of transportation and delivery ; and in order that no rights be lost to either the shipper or the owners of the vessel, it should never be signed and delivered until the cargo is fairly loaded on the vessel, and it should never be expressed in doubtful or ambiguous lan- guage.^ A bill of lading is prima facie evidence as between the parties that the goods were, at the time of their receipt by the master, in the condition in which they are described as being; and so fartas it is a contract, parol evidence cannot be allowed to control its terms, although it may explain an ambiguity; but in the character of a receipt it is so far open to explanation between the master and the shipper of goods.'' The Lockport, 197 Fed. 213 (N. J. ern Coal Co., 195 Fed. 483 (Mass. D. C. 1913) (express warranty); C. C. 19'12). The Eugene F. Moran, 170 Fed. 929 5. Wills v. Sears, 1 Bl. 108; Shep- (N". Y. C. C. 1909) (deviation). herd v. Harrison, L. R. 5 H. L. 116; For U. S. act limiting liability on Abb. Shipping, 321-323; 1 Pars, various conditions, see The Titanic, Shipping, 184 et seq. 233 U. S. 718, 34 Sup. Ct. 754, 58 L. 6. See The Keokuk, 9 Wall. 517. ed. 171; Baltimore Ry. Co. v. Hudg- 7. Bradley v. Duniface, 1 H. & C. ins, 116 Va. 27, 81 S. E. 48 ("Harter 521; Sears v. Wingate, 3 Allen, 103; act") ; United States v. Hamburg- May v. Babcock, 4 Ohio, 334; 1 Pars. Amerikan Co., 212 Fed. 40 (N. Y. Shipping, 188, 191; Nelson v. Wood- C. C. 1914) ; The Florida, 212 Fed. ruff, 1 Bl. 153. Whether accept- 334 (N. Y. D. C. 1910) ; The Sun- ance of goods under a bill of lading beam, 195 Fed. 468 (N. Y. C. C. implies a promise to pay freight, see 1912) ; Baltimore Barge Co. v. East- Elwell v. Skiddy, 77 N. Y. 282. 474 CHAP. I.] SHIPS AND VESSELS. § 321 The bill of lading may contain, besides the usual contract to transport the goods, special stipulations regarding the discharge of the goods, and in general as to the disposal of them or their proceeds; and such stipulations, if sufficiently intelligible to indi- cate an agreement that the law-merchant is not to prevail in the respects specified, and if transcending no rule of public policy, will control the rights and liabilities of the parties accordingly. A bill of lading usually excepts, in so many words on behalf of the ship's owners, losses arising from the act of God, or of public enemies, and the perils or dangers of the seas ; and other clauses are found inserted, such as " loss by breakage or leakage excepted ; " all of which call for judicial construction in a variety of instances.^ The party who ships the goods is called the consignor, and the person to wtom the goods are to be delivered by the terms of the bill is the consignee. Sometimes the shipper is both consignor and consignee ; that is to say, the goods are deliverable to him or to his assigns ; and it may be that the intended consignee is simply the consignor's own agent. If no person is named as consignee, usage will supply the name of the consignor and give to the bill a cor- responding effect.^ Bills of lading were formerly signed in sets of three ; one of which was held by the master, one retained by the consignor of the goods, and the third sent, either with or apart from the goods, to the consignee. The consignor may, if he choose, send his copy of the bill by some other conveyance to the con- signee ; and the rule is that the consignee's title is complete if the bill contains his name and is sent to him ; the goods are his with 8. Grill V. Iron Screw, &c., Co., L. tion of goods through alleged perils R. 3 C. P. 476 ; Brittan v. Barnaby, or dangers of navigation ; and proxi- 21 How. 527; 1 Pars. Shipping, 203, mate or remote cause of a disaster is 253-259; Abb. Shipping, 322. For carefully considered as in all other distinction between " act of God " cases of carriage or bailment gener- and "perils of the sea," see Me- ally. lb.; also Bright. Fed. Dig. 10?, Arthur v. Sears, 21 Wend. 190, 198. 110; Schoul. Bailments, part vi. The element of negligence or fault 9. Chandler v. Sprague. 5 Met. 306; on the part of the master enters very 1 Pars. Shipping, 192. See Shepherd closely into the determination of the v. Harrison, L. R. 5 H. L, 116. ship's responsibility for the destruc- 475 § r>21 THE I.AW OF PERSONAL, PROPERTY. [pA.RT III. •all the expense and risk, subject only to the consignor's right to stop the goods for breach of the conditions of sale before they actually arrive into the consignee's possession. If the consignor be himself consignee, and sends the bill to a third party who has ordered the goods or is to receive them, either indorsed to him or indorsed in blank, the effect is the same as if such person were named in the bill as consignee.^ But if the consignor, who is at the same time consignee, sends the bill of lading without an indorsement, notice that the goods are shipped and on their way is thereby given to the party receiving the bill while the latter acquires no rights; and this has been frequently done by mer- chants, the consignor sending afterwards a bill indorsed to his foreign agent or to the party ordering the goods, or in blank, with proper directions concerning its delivery upon payment of the price and full performance of the conditions of the sale.^ For here we may observe that the obligation of the master to deliver the goods according to the bill of lading, and not otherwise, is so strong as to render the possession of the bill with a suitable indorsement almost conclusive evidence of ownership in the goods, as against the ship-owners ; for which reason the consignor, who ships goods to a party abroad and names him consignee, is likely to lose his goods, or the price for them, if the consignee indorses the bill to a third person for value while they are on the way, thereby defeat- ing the consignor's right of stoppage ^?^ transitu? 1. Walley v. Montgomery, 3 East, Lords. It was held that a hona fide 585; Chandler v. Sprague, supra; 1 delivery of the goods upon presenta- Pars. Shipping, 195, 196. tion of the second bill of lading must 2. Abb. Shipping, 529, 538 ; 1 Pars. prevail, notwithstanding a pledge of Shipping, 196, 19'7. the goods on the first bill of lading. 3. lb.; Brandt v. Bowlby, 2 B. & The inference must be that the Ad. 932. See Lewis v. McKee, L. R. 2 pledgee, under one bill of lading, is Ex. 37 ; Tlie Freedom, L. R. 3 P. C. bound to exercise some care to pre- 594. vent a fraudulent disposition of the The danger of issuing bills of lad- duplicates; and the old practice of ing in three parts, as affecting a title, issuing triplicate bills of lading is shown in an English case (1882), should be discontinued. Glyn Mills decided on appeal in the House of v. East India Dock Co., 7 App. Cas. 476 CHAP. I.] SHIPS AND VESSELS. § 322 § 322. Transportation of Passengers by Water. Ships are often used to carry passengers as well as goods ; and the rule as to a passenger's baggage is much the same, so far as concerns the ship-owners' liabilities, as in the case of merchandise. The rights and responsibilities of passengers who travel on railways receive constant attention in the courts ; not so much, however, those who are transported in ships. Yet statutes are passed from time to time to regulate this latter subject; and an act of Con- gress, passed in 1871, to provide for better security of life on board steam-vessels, details fully what precautions should be used against fire, and other casualties, and makes the master and own- ers liable to passengers for damages, where explosion, fire, or collision is occasioned through negligence on the part of the ship's ofiicers.'* The difference in the responsibilities of a carrier of 591. affirming 6 Q. B. D. 475; cf. Barber v. Meyerstein, L. R. 4 H. L. 317. Shipping usage may differ from that of inland carriers, as to bills of lading. Sometimes a ship is transferred from one set of owners to another while on the voyage and before its return; while consignors of goods go on making their shipments through the master. The English rule, as de- clared applicable to such cases, is that the master, until he receives no- tice of the change of ownership, re- tains the powers which were conferred upon him by the original owners, so far as to bind the new owners by such contracts for the carriage of goods as he may enter into pursuant to his original instructions. And accord- ingly a privilege allowed to some consignor to take a bill of lading " free of freight," may, under such circumstances, continue beyond the actual change of the owners who per- mitted the master to give such bills. See Mercantile, &c.. Bank v. Glad- stone, L. R. 3 Ex. 233. While the master has no authority to sign bills of lading for a greater quantity of goods than is actually put on board, yet his signature to the bills is sufficient evidence of the truth of their contents to throw upon the ship-owners the onus of falsifying them; but this prima facie evidence against the ship-owners may be re- butted, and a less quantity than that specified may be shown by them to have been actually received. See McLean v. Fleming, L. R. 2 H. L. Sc. 128; Nelson v. WoodrufT, 1 Bl. 156. As to bills of lading, see further, c. 8, post; also vol. ii. in connection with sales, and Schoul. Bailments, part vi., as to common carriers. 4. Act Feb. 28, 1871, 440-459. And see 1 Pars. Shipping, 611-636; Abb. Shipping, 211-227; Act March 2, 1819, c. 170. 477 § 323 THE LAW OF PERSONAL PROPERTY. [pART III. passengers for hire, whether by sea or land, is less a difference of principle than of the state of facts to which that principle applies.^ § 323. Letting of Vessel on Charter-Party. But, instead of using their ship to carry goods on freight or for passengers, the owners may, and frequently do, let out the vessel to others, for their use. This is commonly done by a charter- party, an instrument well known to merchants ; being a sort of maritime indenture, executed formerly under seal, but at the present day with the seal usually omitted. The usual rules apply to the construction of a charter-party and its stipulations as to contracts in general, with, however, much latitude.^ There are two leading modes of chartering a vessel: the one, where the owner lets and the charterer hires the whole capacity and burden of the vessel, except so much as may be necessary for accommodat- ing its officers and crew, and for storing its provisions, and for usual equipments ; the other, where the whole vessel is surrendered to the charterer, who takes the ship empty and provides the officers, 5. lb.; Cuddy v. Horn, 46 Mich. carrier may refuse to receive an ob- 59&. jectionable passenger, and may make The captain may and should main- other reasonable regulations for the tain a proper police of his vessel. general convenience and protection Johns V. Brinker, 30 La. Ann. 241; of those on board, yet unreasonable Smallman v. Whilter, 87 111. 545. regulations cannot be enforced; nor But subject and conformably to this may the carrier, having received an doctrine, passengers are to be secure objectionable person, take exception from injury through the negligence to his character or to his peculiar or mi&conduct of officers and crew. position unless he misbehave him- 88 111. 608. self. Pearson v. Duane, 4 Wall. 605. If ship-owners issue a ticket ac- See also Angell and other general knowledging the receipt of money for writers on Carriers; Schoul. Bail- a passage in a particular vessel, an ments, part vii. engagement is imported on their part See, as to conditions on a pass to furnish the conveyance, and on absolving from injury, Freeman v. failure to do so the money may be United Fruit Co., 223 Mass. 300, 111 recovered by the person who paid it. N. E. 789. See Bright. Fed. Dig. " Oarriers," 6. Abb. Shipping, 223, 241 ; Bright. 113, 114. But see Gillan v. Simpkin, Fed. Dig. 788-791; 1 Pars. Shipping, 4 Campb. 241. And while a common 274 et seq. 478 CHAP. I.] SHIPS AND VESSELS. § 323 and puts on board all supplies for himself. In the former case, which is of common occurrence, the arrangement is substantially that the owners agree to carry a cargo which the charterer agrees to furnish; and here the rights and liabilities growing out of possession of the ship may appear somewhat confused.^ But, to detennine such questions, the language of the charter-party in the particular case must be considered ; though it seems that in gen- eral the party that mans the vessel is to be considered as in posses- sion, unless the weight of evidence proves decidedly to the contrary.^ If the general owners retain the possession, command, and navigation of the vessel, and contract to carry a cargo, on freight, any charter-party would, of course, be a mere affreightment, and the freighter would not be clothed with the character or legal responsibility of ownership.^ And in a more doubtful case, the fact that the charter-party put the ship's navigation at the ship- owners' expense, might be conclusive as against making the chart- erer an owner pro hac vice, especially if the ship's whole tonnage be not let to hire.^ Indeed, in the absence of any clear and deter- minate transfer of the rights and authority of the general owners of a vessel chartered for a voyage, such rights and authority con- tinue.^ But if the charterer is charged with the navigation of the ship, and agrees to victual and man, and to supply all requisite stores for the term specified, he has the rights and responsibilities of owner for the time being, and the ship-owners are not respon- sible for the supplies nor for any loss of goods; nor can they col- lect freight from the shipper of goods."' Sometimes one of the 7. See 1 Pars. Shipping, 278. 1. lb. ; Hooe v. Grovcrman, 1 Cr. 8. Bright. Fed. Dig. "Shipping," 214 ; 1 Pars. Shipping, 279-281. 789, 790; 1 Pars. Shipping. 279; 2. Hagar v. Clark. 78 N. Y. 45. Storj-, J., in Logs of Mahogany, 2 3. Bright. Fed. Dig. 789; Mott v. Sumner, 589; Abb. Shipping, 42. Ruckman. 3 Bl. C. C. 71. See also 9. Marcardier v. Chesapeake Ins. McGilvery v. Capen, 7 Gray, 523; Co., 8 Cr. 39; The Nathanial Hooper, Newberry v. Colvin, 7 Bing. 190; 3 Sumner. 544 ; Donahoe v. Kettell, 1 3. c. 1 CI. & F. 283 ; The Great East- Cliff. 135; Sandeman v. Scurr, L. R. em, L. R. 2 Ad. & Ecc. 88. 2 Q. B. 86. 479 § 324 THE LAW OF PEIlSOiXAL PEOPEKTY. [PART III. general owners sails a vessel on shares, under an arrangement between himself and the other owners, whereby he in effect becomes the charterer.'* § 324. The Same Subject. The ship may be chartered for one or more voyages, or for any time certain. It may also be chartered without any definite term expressed in the contract ; in which case the law implies a reason- able term, compelling the parties to regard the charter as in force during the whole of any voyage, once undertaken by the charterer before reasonable notice of intention to terminate the charter is given ; since otherwise the bargain would be a perilous one for the charterer, from a pecuniary point of view. Subject to this quali- fication a charter-party for no definite term is determinable by either party at pleasure.^ The burden and nationality of the ship are usually expressed in the charter-party; and for a fraudulent misrepresentation in either respect to the charterer's disadvantage, the owners must suffer.^ So, too, it is common for the charter-party to provide for the state of the ship and for repairs; the usual way being for the owner to stipulate that the ship is sound, stanch, and altogether seaworthy; and, further, that he will keep the ship in repair, perils of the sea and unavoidable accident excepted. Even if the contract were silent as to such stipulations, the law would probably supply them ; and for detriment sustained by the charterer through unseaworthiness of the vessel, such as he had not foreseen, there is little doubt that he can get indemnity from the ship-owners, by holding back a suitable portion of the sum he agreed to pay as charter-money, or otherwise.^ But the charterer, in absence of 4. Thorp V. Hammond, 12 Wall. 408. Bright, Fed. Dig. 788. See Richard- 5. 1 Pars. Shipping, 282, 283; son v. United States, 2 N. & H. 483. Haveloek v. Geddes, 10 East, 555; Wfien the owner of a vessel charters McGilvery v. Capen, 7 Gray, 525. her, there is, in the absence of any- 6. Ashburner v. Balchen, 3 Seld. thing expressed to the contrary, an 262 ; Hunter v. Fry, 2 B. & Aid. 421. implied contract that she is seaworthy 7. 1 Pars. Shippirig, 283-285; and suitable for the service in which CHAP. I.] SHIPS AXD VESSELS. § 324 any agreement to the contrary, should victual and man the vessel ; though in this and in other respects the parties to the charter-party may make different stipulations, if they see fit.^ It is usual for the master to sign and give bills of lading in the same manner as if there were no charter-party ; yet, so far as the charterer and his goods are concerned, this amounts to little more than evidence of the delivery and receipt and shipping of the merchandise ; for the charter-party controls the bill of lading with regard to the terms and provisions which the two instruments have in common.^ By delivery of the vessel to the hirer, and its acceptance, the charter-party is confirmed and adopted ; and any wrongful act or breach of engagement by the one party to such a bailment, fur- nishes a basis of legal redress to the other. ^ On the other hand, a re-delivery of the vessel and its acceptance by the o^vner justifies the presumption that the term of hire is ended.^ she is to be employed. The owner is obliged to keep her in proper re- pair, unless prevented by the perils of the sea or unavoidable accident. He is not excused for any defect, known or unknown; and a defect which is developed without any ap- parent cause is presumed to have existed when the service began. Where, however, a hirer uses a ves- sel which afterwards proves defec- tive, he must pay for the use to the extent of the use. Work v. Leathers, 97 U. S. 379. 8. Goodridge v. Lord, 10 Mass. 483, 486; 1 Pars. Shipping, 285. See Reed V. United States, 11 Wall. 5?1. 9. Lamb v. Parkman, 1 Spr. 343 ; 1 Pars. Shipping, 286-288. Any discrepancy as to terms of freight between the bill of lading and charter-party would be rectified by reference to the latter, whether the owners had a controversy with the charterer himself or with any person shipping goods with knowledge of the charter-party. 1 Pars. Shipping, 287; Faith v. East India Co., 4 B. & Aid. 630. But if the bill of lading were indorsed for value to one having no notice or knowledge of the terms of the charter-party, it is held that the indorsee may insist upon the terms Stated in the bill of lading; and so, too, it would be with sub-freighters of the ship who knew nothing about the charter-party. See Foster v. Colby, 3 H. & N. 705: Fry v. Bank of India, L. R. 1 C. P. 689; Faith v. East India Co., 4 B. & Aid. 630. There should be no duress as to such con- tracts. McPherson v. Cox, 86 N. Y. 472. 1. Compania-Bilbania v. Spanish- American Co., 146 U. S. 483; Meiss- ner v. Brun, 128 U. S. 474. 2. Compania-Bilbania v. Spanieh- American Co., 146 U. S. 483. 31 481 § 325 THE LAW OF PERSONAL PROPERTY, [PART III. § 325. The Same Subject; Time as an Essential; Demurrage. Time being an element of much importance in all business transactions, and in commercial affairs especially, the parties to a charter-party are held to the rule of punctuality in their mutual engagements; hence, if the ship be not ready at the proper time and a material delay is probable, the charterer is at liberty to seek another ship ; while, if the cargo be not ready, the owners may seek another cargo. ^ If the ship-owners retain control of the vessel, the voyage must be performed in as short a time as is con- sistent with safety, and for any culpable negligence by which the voyage is protracted, they must suffer the consequences."^ And it is said that the charterer must load and unload with all reasonable despatch ; that the owners must give him all reasonable facilities ; and that for non-performance of these obligations, on either side, the injured party may have his remedy, without any express stipu- lations.^ The question what" is a reasonable time, under such circumstances, is one of fact for a jury to determine, unless the parties have specified the period for themselves.^ But obligations of this sort are usually provided for as demur- rage, a term which signifies the delay of a vessel by the charterer beyond the time allowed for loading, unloading, or sailing; also the payment for such delay. For it is almost always provided that the charterer may have so many days for loading and unload- ing the ship, and that he may detain the ship longer, if he will pay so much for the detention. The object of this provision was doubtless to make the charterer save time as much as possible, and to give the owners compensation for such time as he might have 3. Seeger v. Duthie, 8 C. B. n. s. 5. 1 Pars. Shipping, 311. If the 45; Weisser v. Maitland, 3 Sandf. charterer is the cause of a failure to 318 ; 1 Pars. Shipping, 310. Aliter deliver the cargo according to the where the charter-party makes no charter-party, the ship is entitled to stipulation as to the time of loading. the stipulated freight. Gage v. Mary- Culliford V. Vinet, 128 U. S. 135. land Coal Co., 124 Mass. 442. 4. Sieveking v. Maas, 6 Ell. & B. 6. See Cross v. Beard, 26 N. Y. 85. 674; The Barque Gentleman, 1 Bl. C. C. 196. 482 CHAP. I.] SHIPS AND VESSELS. § 325 saved and did net; its practical application is to charters for a specified voyage, rather than for those on time. If, then, a ship be chartered for a specified voyage, there are days which belong to the charterer and for which he does not pay; and these are called " lay days," — or '' working days," with reference to the labor of loading and unloading.^ Lay days do not usually com- mence until the ship has arrived at the place for loading or unload- ing, though this rule may be affected by usage or the stipulation of the parties.^ The parties may stipulate that the charterer shall be liable for no delay of the vessel which is not caused by his own fault; but, unless this is done, some have thought that for such special delays as occur by capture, embargo, or through stress of weather, the owners of the ship may claim demurrage compensa- tion, the fault not being their own,^ Perhaps, however, if the voyage were broken up altogether, as in case of condemnation as prize, it would be held that the charter-party came to an end, and the charterer's liabilities along with it.^ And while it is generally admitted that the fact of the delay being caused by the act of God, or other vis major, does not relieve the charterer or freighter from liability, where he has entered into a positive undertaking to load or discharge a cargo in a given number of days, yet the English courts refuse to extend such a liability to an implied contract for reasonable diligence only.^ Demurrage, so called, can be recov- ered only where it is reserved by the charter-party or bill of lad- 7. See 1 Pars. Shipping, 310-318; party. See, for a liberal allowance of Brooks V. Minturn. 1 Cal. 481; Coch- demurrage on two voyages made, not- ran v. Rotbcrg, 3 Esp. 121 ; Bouv. withstanding a tliird was abandoned, Diet. "Demurrage;" Abb. Shipping, Elwell v. Skiddy, 77 N". Y. 282. But 303 et seq. See Gray v. Carr, L. R. a8 restricting the right to demurrage, 6 Q. B. 522; Southern R. Co. v. see Hodgdon v. New York, &c., R., 46 Lewis, 165 Ala. 451, 51 So. 863. Conn. 277; Whitehouse v. Halstead, 8. Lacombe v. Wain, 4 Binn. 299; 90 111. 95. Pyman v. Dreyfus. 24 Q. B. D. 152. 2. Ford v. Cotcsworth, L. R. 5 Q. B. &. See 1 Pars. Shipping, 314-316, 544. London dock strike necessitat- and n.; Towle v. Kettell, 5 Cush. 18. ing delay held no subject for demur- 1. 1 Pars. Shipping, 318. And see rage against the consignee. (1893) ib. 328-337, as to acts of government App. C. 22. in war which go to dissolve a charter- 483 § 326 THE LAW OF PERSONAL PROPERTY. [part IIK ing; and where no such express reservation exists, the remedy appears to be by action on the case in nature of demurrage, for damages for the detention.^ § 326. Charter-Parties, How Modified; How Construed. Modifications of a charter-party may be constituted, as between charterer and owners, by letter or otherwise, like any other written contract.'* And the cases are numerous which turn upon the con- struction of particular clauses contained in a charter-party.^ In general, a charter-party is viewed like any contract and requires mutual assent ; and where there is any material part of the instni- 3. Gage v. Morse, 12 Allen, 410; Young V. Moeller, 5 Ell. & B. 755. The government sometime? charters a merchant vessel for its own pur- poses; as, for instance, where some public exigency has occurred, and soldiers and army supplies are to be transported from place to place. But the terms of the contract must be studied, in order to ascertain the mutual liabilities in any such case. For where the United States author- ities ordered owners of a vessel, dur- ing the civil conflict of 1861-65, to get her ready, under pain of impress- ment, to transport a cargo to a jmr- ticular place and back (which order was obeyed, though under protest), the effect was to leave the possession with the general owners under a con- tract with government for a per diem compensation from the commence- ment of the voyage until the same was broken up, with the further ad- dition of so many days as would have been spent, if no disaster had occurred in completing the return trip. Reed v. United States, 11 Wall. 391. And the ship having been blown aground, and destroyed months after by an ice freshet, the voyage was held to be completely broken up. lb. But where the government contract for the vessel was one of hiring and the government had exclusive possession and management, rent or hire money for the ship was due, whether the vessel was in continuous service or not. United States v. Shea, 152 U. S. 178. 4. Boyd V. Moses, 7 Wall. 316. 5. Thus, a stipulation to take a cargo of " lawful merchandise " is held to imply that the articles which compose the cargo shall be in such condition, and be put up in such form, that they can be stowed and carried without one part damaging another. lb. And a memorandum in the bill of lading " not accountable for leak- age " has been considered broad enough to cover not only ordinary leakage, but all leakage which was not negligently occasioned. Ohrloff v. Briscall, L. R. 1 P. 0. 231. The custom of the loading port may ex- plain the meaning of such expressions as " a full and complete cargo." See Duckett v. Satterfield, L. R. 3 C. P. 227 : Southampton. &c., Co. v. Clarke. L. R. 4 Ex. 73. And, indeed, mercan- tile usage is greatly regarded, in cass 484 CHAP. I.] SHIPS AND VESSELS. § 328 ment to which both parties have not agreed, the entire instrument is vitiated.^ § 327. Marine Torts and Perils, Fourth, as to marine torts and perils peculiar to navigation. This will lead us to consider particularly the subjects of collision, salvage, and general average. § 328. The Same Subject; Collision. Where two vessels strike one another, causing damage to one or both, the disaster is that of collision. Such accidents are of com- mon occurrence in our crowded harbors, and not unfrequently at eea, or along the coast. To avoid them as far as possible, and in order that the blame where a collision occurs shall be laid where of doubtful construction ; though usage can never be suflfered to con- trol express declarations. Whether certain covenants contained in a (Jharter-party are independent or Tr. Co. V. Boston Ins. Co., 223 Fed. 716, 139 C. C. A. 246 (negligence in carrying or loading or unloading) ; The Jeannie, 225 Fed. 178 (Wash. D. C. 1915): Ulster Brick Co. v. mutual ; what are the stipulations Murtha Co., 169 App. Div. 151, 154 concerning the "sailing" or "depart- N. Y. S. 834 (liability for demurrage ure " of a vessel from a particular continuous) ; Ideal Goods Co. v. East- jiort, — all such questions and nu- ern 9. S. Corp., 220 Mass. 133, 107 raerous others are to be referred to N. E. 525 (duty of water carrier as the usual principles of contracts; with to cargo) ; The Banes, 221 Fed. 416, l)erhaps this qualification, that the 77 C. C. A. 420 (damage by sub-char- eourts of admiralty strive, so far as terer) ; Central American Co. v. Pa- is consistent with right, to interpret cific Mail Co., 209 Fed. Ill (negli- maritime contracts according to the gence of carrier's sen-ants) ; Benner mutual intention of the parties, how- ever careless the latter may have been in the choice of language. See 1 Par?*. Shipping, 318-364: Lovell v. Davis, 101 U. S. 541. 6. Compania-Bilbaina v. Spanish- American Co., 146 U. S. 483, 13 Sup. Ct. 142. Among latest cases relating to Line v. Pendleton, 210 Fed. 67 (N. Y. D. C. 1913) (seawortliiness essen- tial) : Granger v. Stewart. 208- Fed. 410. 125 O. C. A. 622 (demurrage) ; Pool Shipping Co. v. Samuel, 200 Fed. 3G, lis C. C. A. 264: lb.. 192 Fed. 57 (public officer's order) ; Steamship Wellesley v. C. A. Hooper. 185 Fed. 733, 108 C. C. A. 71: Hol- oharter-party, etc., see Jebson v. Cargo man v. Ganz S. S. Line, 186 Fed. 96, of Hemp, 228 Fed. 143 (Mass. D. C. 108 C. C. A. 208 (expense of loading 1915) (lien on cargo for hire as and unloading), against a sub-charterer) ; Gilchrist 485 I 328 THE LAW OF PERSONAL PKOPERTY. [pAET III. it belongs, suitable regulations for navigation are established, either by statute or general usage. It is the duty of all masters and crews to observe these rules carefully ; and if a collision takes place for failure to do so, the vessel in fault is usually compelled to pay all the damages resulting ; while if both vessels are in fault the loss will be divided/ Perhaps if the fault were vastly greater on one side than the other, though both vessels were somewhat to blame, there might be an equitable apportionment of the damages ; but such is not the prevailing practice.^ If neither vessel be in fault, the loss rests where it falls.^ The ship that is not disabled is bound to render all possible assistance to the other, particularly so as to save human lives, though the latter may be alone in fault ; and this duty, which humanity enjoins, is now enforced in England by statute/ The statutes which regulate the navigation of vessels as concerns the United States are chiefly those of 1864 and 1867, with subse- quent additions and amendments/ In England, regulations have been promulgated from time to time, by way of orders in council, and statutes have been enacted; and among the latter may be mentioned the statute of 25 & 26 Vict., c. 63, passed in 1862, upon which, as modified by an order in council, Jan. 9, 1863, our act of 1864 is based. The rules of navigation relate in part to lights, in part to fog signals, and in part to the method of steer- ing the vessel, and the precautions proper when approaching another vessel.^ 7. The Gray Eagle, 9 Wall. 505; 1. The Celt, 3 Hagg. Adm. 321; 25 The Carroll, 8 Wall. 302; The Poto- & 26 Vict., c. 63, § 33. mac, 8 Wall. 590; Bright. Fed. Dig. ^ ^^^ ^^^ jj g j^^^ g^^^^^ gg (Suppl.) "Navigation;" Vaux v. 4233-4251 ShefFer, 8 Moore P. C. 75; The Sap- phire, 11 Wall. 164; The North Star, 3. See 1 Pars. Shipping, 348 et seq.; 106 U. S. 17; The Nevada, 106 U. S. Maude & Poll. Shipping, 3d ed., 449- 154. See as to limitation by the 465. English regulations for pre- value of the vessel, Beatty v. Hanna, venting collisions at sea, made under 12'2 U. S. 97. the authority of the English merchant 8. See 1 Pars. Shipping, 527, 528. shipping acts, 1854 to 1873, must, 9. 1 Pars. Shipping, 525, and cases under 36 & 37 Vict., c. 85, § 17, be cited; Bright. Fed. Dig. 583-586. 486 CHAP. I.] SHIPS AND VESSELS. § 328a § 328a. Limitation of Liability. The Act of Congress of 1893, commonlj known as the Harter Act, was passed to prohibit the owners of vessels from limiting strictly followed. 5 App. Cas. 876. And see new Orders in Council (1893) p. 343. As to rules for navi- gating the Thames, see 5 P. D. 276. Wherever a statute regulation is dis- regarded by a vessel, it lies orf that vessel to show that the accident in case of collision was not owing to such neglect ; but if it is shown that the accident was due wholly to other causes, and that this breach of the statute did not contribute to the collision, the violation will have no effect. Waring v. Clark, 5 How. 465 ; Mackay v. Roberts, 9 Moore P. C. 368; The Fannie, 11 Wall. 239; The Farragut, 10 Wall. 334. But wher- ever there is a positive breach of statute, the burden of exoneration rests very heavily upon the vessel un- der the decisions. Belden v. Chase, 150 U. 9. 674. Regard is paid to the situation and circumstances of each vessel in prescribing rules of navi- gation ; and that one which can avoid disaster more readily than the other is usually required to take more ac- tive measures. Thus^ a steamer ap- proaching a sailing vessel is bound to keep out of her way; steamers having no tow must regard with care those having them ; a ferry boat accustomed to a harbo/ should steer clear of a vessel coming in from sea and anclior- ing in a fog; and a ship sailing be- fore the wind is expected to avoid one which is close-hauled, the latter keep- ing its course. The Fannie, 11 Wall. 238; The Carroll, 8 Wall. 302; The Johnson, 9 Wall. 146; The Syracuse, 9 Wall. 672; Crowel v. Bark Radama, 2 Cliff. 551; The Gregory, 6 Blatchf. 528 ; The Spring, L. R. 1 Ad. & Ecc. 99; The Abbotsford, 98 U. S. 440; The Benefactor, 102 U. S. 214. And if the steamer must keep out of the way of a sailing vessel, it is equally imperative on the latter to keep her course. The Illinois, 103 U. S. 298; The Blue Jacket, 144 U. S. 371, 12 Sup. Ct. 711. A ship being towed by a tug, ship and tug are, as a rule, to be treated as one vessel under steam. " The Civilta " v. " The Restless," 103 U. S. 699. Steamers navigating in the dark or in a crowded harbor or during a fog are bound to move with great care ; and if unusual ma- noeuvres are attempted, where a col- lision is imminent, the manoeuvring vessel should make sure that the other understands in season and makes cor- responding movements. The Johnson, 9 Wall. 146; The Corsica, 9 Wall. 146 ; The Syracuse, 9^ Wall. 672 ; The Kirby Hall, 8 P. D. 71. As to other violations of sailing rules in deter- mining blame, see the Annie Linds- ley, 104 U. S. 185; Cooper v. Eastern Co., 75 N. Y. 116 ; Kennedy v. Steam- boat Co., 12 R. I. 23. A steamer is not bound to change her course for a row-boat. Philadelphia R. v. Adams, 89 Penn. St. 31. We may observe further that the conduct of the ves- sels while approaoliing each other is regarded in determining which of the two is essentially to blame ; not merely the moment before collision, when a slight mistake during the confusion niiglit be inadvertently made by the one without affecting the 487 § 328a THE LAW OF PEKSONAL PROPERTY. [part III. their liability for negligence in loading or storing or navigation. Before the passage of the act there was a warranty on the part of the ship-owner that the ship was seaworthy at the beginning of general liability properly imposed upon the other for its carelessness. See The Carroll, 8 Wall. 302. The question is, which vessel substantially caused the disaster; though the ves- sel claiming damage should not ap- pear really culpable as contributing iihereto. And while the omission of a vessel to exhibit the proper signal lights, or showing the wrong one, puts it prima facie in the wrong, this does not absolve other vessels from the consequences of their own negligence. The Gray Eagle, 9 Wall. 505; Hoff- man V. Union Ferry Co., 47 N. Y. 176; 4 P. D. 219. If a proper look- out was not employed on a vessel, as required by law, it should be asked whether his absence had anything to do in causing the collision. The Fannie, 11 Wall. 238 ; Thorp v. Ham- mond, 13 Wall. 408; The Clara, 102 U. S. 200. Racing to enter a harbor first would render a vessel culpable, if collision resulted. The Spray, 12 Wall. 366. But even if flagrant fault be committed by one vessel, the other is bound to adopt every proper pre- caution to avoid the collision immi- nent, or it will be treated as equally liable for the consequences. The Maria Martin, 12 Wall. 31; The Sap- phire, 11 Wall. 164. A vessel aground at night in a navigable channel should apprise other vessels of its position. The Industria, L. E. 3 Ad. & Ecc. 303. It is a rule that inevitable acci- dent which proper skill and precau- tion could not prevent relieves from the liabilities attending a collision. The Louisiana, 3 Wall. 164; 1 Pars. Shipping, 525 ; The Virgil, 2 W. Rob. 201 ; Stainback V. Rae, 14 How. 532 ; Bright. Fed. Dig. 587. But a col- lision arising from the negligence of the crew is not damage of the seas within the meaning of an exception in a biU of lading. Grill v. Collier Co., L. R. 1 C. P. 600. See The Ariadne, 13 Wall. 475. One vessel brought into jeopardy by another's fault is not held culpable for want of perfect skill and presence of mind in the extremity of danger. Blue Jacket v. Tacoma Mill Co., 144 U. S. 371, 12 Sup. Ct. 711. There are cases which hold that where the value of the vessel at fault is not enough to satisfy a claim for collision, the homeward freight on the cargo is liable to contribute to satisfy it, though the cargo itself should be released. The Orpheus, L. R. 3 Ad. & Ecc. 308; The Flora, L. R. 1 Ad. & Ecc. 45. But English statutes now qualify and limit the liability of ship-owners for a collision occurring without tlieir fault or priv- ity. See The Velasquez, L. R. 1 P. C. 494; The Obey, L. R. 1 Ad. & Ecc. 102; The lona, L. R. 1 P. C. 426; The George and Richard, L. R. 3 Ad. & Ecc. 466; 5 P. D. 6. The maritime law of limited liability is adopted by U. S. Rev. Stats., §§ 4282- 4289. The Scotland, 105 U. S. 24; Eo) parte Slayton, 105 U. S. 451. See The Manitoba, 122 U. S. 97. In measuring the damages in a case of collision, loss of freight, de- tention, expense, and all the other direct and immediate consequences. 488 CHAP. I.] SHIPS AND VESSELS. 329 the voyage, but since then the act itself provides the rule for all cases covered by it."* The liability of the owners may, however, be limited by law to the ship itself, and a foreign ship may claim exemption in the United States courts for limitation of liability.^ § 329. The Same Subject; Salvage. Salvage is a word which is used in two different senses. Its ordinary meaning, in admiralty, is that compensation which the maritime law gives for service rendered in saving a ship or its cargo from peril ; and in that sense we shall here regard it. The other meaning of the word, not uncommon among insurers, is the will be taken into consideration. For restitutio in integrum is the leading maxim applicable to injuries from collision. Bright. Fed. Dig. 586, 587 ; The Countess of Durham, cited 1 Pars. Shipping, 538; The Baltimore, 8 Wall. 377. As to the injured ves- ' ael, where repairs are practicable, the damages assessed Shall, in general, be sufficient to restore it to the condition in which it was at the time the col- lision occurred ; and where new ma- terials for repairs are furnished in place of the old, the deduction usual in insurance cases cannot be made, though the value of the vessel be thereby enhanced. The Baltimore, 8 Wall. 377. The fact that the in- jured vessel is sunk does not neces- sarily imply that there is a total loss ; nor sliould vessel or cargo be abandoned, unless it appears that the vessel could not be raised or saved, or that the cost of raising and re- pairing it would exceed its value after the repairs were made. lb. Where two vessels are in fault, the injured party may proceed against ■both together and hold both liable for the collision ; in which case the dam- ages are properly apportionable equally between the two ves.sels, while the claimant may collect the entire amount of either, if the other is un- able to respond for a due proportion. The Washington and The Gregory, 9^ Wall. 513. And see The Virginia Ehrman and The Agnese, 97 U. S. 309, 323; The Connecticut, 103 U. S. 710. The latest cases relating to col- lision are very numerous, as reference to the latest English and American annual digests will show ; and the present writer undertakes in this volume no more than a general analy- sis of the essential principles. The U. S. District and Circuit Court series (e. g., Blatchford's and Benedict's reports) contain many decisions of value under this head. 4. The Southwark, 191 U. S. 1. 24 Sup. Ct. 1, 48 L. ed. 65. 5. The Titanic, 233 U. S. 718, 34 Sup. Ct. 754,, 58 L. ed. — . 489 § 329 THE LAW OF PERSONAL PROPERTY. [pART lit. property which is saved from a wrecked vessel.^ In order to give the claim of salvage the subject rescued should be employed in navigation ; ^ and salvage service of the higher grade involves one's peril of life, limb, or property, — gallantry, courage, or hero- ism.^ The doctrine of salvage does not apply to an aeroplane fallen in navigable waters.^ There seems reason, however, why it should sometimes apply to a hydroaeroplane or flying boat. It is a leading rule that salvage services must be performed by persons not legally bound to render them. Thus, the master and crew cannot in general be treated as salvors of their own ship and cargo ; for it would be an unwise policy to tempt those whose duty it is to stand by the vessel and all it carries, to invite danger for the sake of extra profit.^ Yet there are circumstances under which seamen have been allowed to claim, on the ground that their con- tract with the vessel saved was at an end, or because the service performed was entirely out of the line of their duty.^ Pilots and passengers, too, according to the best authorities, may become salvors when they perform services to a ship in distress beyond the line of their duty; and certainly the duties of passengers in and about a ship are much less than those of master, pilot, or crew, who are hired to manage it.'' The statutes of our States are quite liberal, too, in giving pilots extra compensation for extraordinary services ; and, on the whole, American cases seem rather more favorable to salvage claimants than those of the mother country. Revenue officers, and persons belonging to the United States navy, 6. Bouv. Diet. "Salvage; " 2 Pars. 1. Bright. Fed. Dig. "Salvage," Shipping, 260. 749; 2 Pars. Shipping, 264, 266. 7. A fixed structure, like a dry 2. lb.; Mason v. The Blaireau, 2 dock, is not a subject of salvage Cr. 240; The Florence, 20 E. L. A service. Cope v. Dry Dock Co., 119 Eq. 607. U. S. 625. 3. Akerblom v. Price, 7 Q. B. D. 8. Irvine v. The Hesper, 122 U. S. 129; Newman v. Walters, 3 B. & P. 256. 612; 2 Pars. Shipping, 268-271. The 9. The Crawford Brothers, 215 Fed. principle of remuneration for salvage 269 (Wash. D. C. 1914). by an agent is discussed in (1892) P. 366. 490 CHAP. I.] SHIPS AND VESSELS. § 329 and troops on a transport, have been allowed salvage.'* So has a corporation chartered for saving vessels; though in this case it seems to be rather for the use of apparatus furnished and skill in handling ti than on the ordinary principle which regards personal gallantry and sacrifice.^ And even g, steam-tug, towing fire- engines from a wharf into a harbor where a vessel is on fire, and rendering prompt and useful servace with the fire-engine company, may claim salvage, as may also the fire department.^ Xothing, indeed, according to the principles announced in the Supreme Court of the United States, will bar a meritorious claim for sal- vage, on the part of those not ordinarily concerned in and about the rescued vessel, short of a contract to pay a given sum for the services or a binding engagement to pay at all events.^ And where two ships belong to the same owner, the crew of the one may recover salvage reward for assistance rendered to the other, in a meritorious case.^ It is, however, a general rule that none can claim salvage who did not aid and participate directly in the salvage service, or pro- mote those services by doing the work of those rendering them ; some exceptions being made on the principle of agency.' Nor can salvage accrue from a wrong; as where the master and crew of one vessel save the cargo of the other from perils resulting from a collision in which both were to blame. ^ As to steamboats assisting vessels in distress, a distinction must be made between the agree- ment to tow a vessel whole or disabled, and the rendering of an extraordinary service outside of that agreement, and of course deserv'ing further compensation. And here it is not even neces- 4. Brifrht. Fed. Dig. 748, 749; 2 Jane, 14 Jur. 857; s. c. L. R. 3 P. C. Pars. Shipping, 272, 273; United 690. States V. The Amistad, 1.5 Pet. 518. 9. The Camanche. supra : The Vine, 5. The Camanche, 8 Wall. 448; The 2 Hagg. Adm. 1; The San Bernardo, Morning Star, 6 Blatchf. C. C. 154. 1 Rob. Adm. 178; 2 Pars. Shipping, 6. The Blackwell, 10 Wall. 1. 277, 278. 7. See The Camanche, 8 Wall. 448; 1. Cargo ex Capella, L. R. 1 Ad. & The Waverley, L. R. 3 Ad. & Ecc. 369. Ecc. 356. And see Bright. Fed. Dig. 8. See The Sappho, L. R. 3 Ad. & 749, 750. Ecc. 142, distinguishing The Maria 491 § 380 THE LAW OF PEESOXAL PEOPERTY. [PAET III. sary that there should have been any actual interruption in the towage ; for the vessel contracting to tow becomes a salvor when such supervening circumstances have occurred as justify an aban- donment of the contract, — where, for instance, there is a serious danger, not contemplated bj the parties when the contract was made.^ But where a vessel which contracts to tow a disabled ship is compelled to leave her in a more dangerous position than before, there may be a claim for towing but none for salvage.^ § 330, The Same Subject. The courts are very liberal in deciding what constitutes a sal- vage service. Keeping near a vessel in distress, boarding it for a message, giving advice, transshipping a cargo, aiding to put out a fire, — any and all of these ser-vdces may give a salvage claim ; the reward being mainly for gallantry in the hour of peril, which goes in a material degree towards preserving the ship, its appur- tenances, or its cargo ; and a service is a salvage service whether rendered while the vessel is at sea or when it is off the coast.'^ JSTor, as it has been frequently ruled, is it necessary that the dis- tress should be actual or immediate, or that the danger should be imminent and absolute ; it is sufficient if, at the time the assist- ance is rendered, the ship has encountered any damage or misfor- tune which might possibly expose it to destruction if the services were not rendered.^ But no claim for salvage is allowable unless the property in question was in point of fact saved from destruc- tion.^ Articles derelict — as, for instance, a ship which has been 2. The Potter, L. R. 3 Ad. & Ecc. 3. The Benlarig. 14 P. D. 3. Cf. 2«2. See 2 Pars. Shipping, 274-277. 14 P. D. 132. To bar a meritorious claim for 4. 2 Pars. Shipping, 285-287: The salvage by special contract, such con- Westminster, 1 W. Rob. 229 : Bright, tract should at least permit of some Fed. Dig. 749. recompense for services rendered in 5. The Charlotte. 3 W. Rob. 6S, 71 : case of calamity. The Excelsior, 123 2 Pars. Shipping, 283; The Saragossa, U. S. 40. Salvage claims rest, not 1 Ben. 551. upon contract, but upon the right 6. Bright. Fed. Dig. " Salvage." to be paid out of what is rescued. 747. Salvage service may consist See (1895) P. 193. essentially in toAving the disabled 492 CHAP. I.] SHIPS AND VESSELS. § 330 fully and finally abandoned by her crew, with no hope of saving or recovering it — follow a rule somewhat peculiar at the common law; belonging, in England, as they did for some time, to the Lord High Admiral, and afterwards to the sovereign ; and wrecks, by which is meant property cast «shore, often vested in the lord of the manor; but the disposition to be made of property thus aban- doned is now frequently regulated by statute.^ The amount of salvage compensation to be awarded in a given case will depend greatly upon the circumstances shown as to danger to vessel, hazard of exposure, value, lentgh of service, and so on. There is no fixed rule as to amount ; and our tribunal of final appeal is quite reluctant to disturb an award made in the court below.^ A moiety was given in old times where there had been a derelict; and where the case is exceedingly meritorious, this is still given as perhaps a maximum rate of salvage compensation ; but more fre- quently the salvage allowed on derelict is nearer one-third of the value of the property, and on property not derelict a much lower rate.^ Salvage for saving life, unconnected with property, is not allowed ; but if life be saved, it may enhance the amount of salvage allowed on the property.^ vessel. The Jubilee, 42 L. T. n. s. duct on the part of salvors may lie 594. Cf. The Liverpool. (1893) P. ground for reducing the amount of 154. salvage reward. Tlie Marie, 7 P. D. 7. See 2 Pars. Shipping, 288-29'2, 203. Nor will an oppressive special and cases cited; Act 17 & 18 Vict., agreement for salvage be enforced. c. 104, §§ 471-475; Bright. Fed. Dig. The Silesia, 5 P. D. 177. Whatever 258, 750. See post, vol. ii, part iv, the nature of the property thus saved, c. 1. whether it be ship, cargo, or freight, 8. The Camanche, 8 Wall. 448; a salvage coni]>en?ation is usually de- Post v. Jones, 19 How. 150, 161; 2 creed. To this rule, however, excep- Pars. Shipping, 292, 293 ; The Aquila, tions are sometimes made, out of re- 1 Jlob. Adm. 37, 45. See The Zea- gard, perhaps, to decency or the mean- land, Lowell, 1, where the whole pro- ness of the claim. See Bright. Fed. eeeds of a small derelict were given Dig. 747; 2 Pars. Shipping, 302-305; to salvors. also, Tome v. Dubois. 6 Wall. 548 : 9. lb.; Bright. Fed. Dig. 752, 753; L. R. 3 Ad. & Ecx-. 487. Bullion 8 P. D. 24, 65. saved must contribute for salvage, 1. Bright., Fed. Dig. 747; 8 P. D. 6 P. D. 60. Wherever courts of ad- 115. Violent and overbearing con- miralty can take jurisdiction, they 493 § 331 THE LAW OF PERSONAL PROPERTY. [part IU. § 331. Average in Maritime Losses. The principle of *' general average " has been applied to mari- time losses from the earliest days of commerce ; it was part of the law of Rhodes, and in fact prevailed along the Mediterranean and Adriatic seas while as yet Greece and Rome had but a feeble existence.^ No rule of the kind has ever yet been enforced as against property on land, though often it might fairly be applied ; yet when, for the common benefit, property is partially destroyed at sea, or expenses necessarily incurred, this principle of general average comes in to apportion the loss; so that no one may lose more than his fair share. Ship and cargo are thus regarded as combined in a perilous adventure. There is a certain equity in the doctrine; for, as it is well observed, common justice dictates that where two or more parties are engaged in the same sea risk, and one of them, in a moment of imminent peril, makes a sacrifice will in general enforce the lien for salvage service; nor will they appar- ently forego making government lia- ble like an individual, provided only the property can be held by judicial process; for, as a matter of principle, personal property of the United States on board of a vessel, for transporta- tion, is bound to respond for salvage services rendered in saving the prop- erty. The Davis, 10 Wall. 1. But ships of war enjoy some peculiar immunities. See L'Invincible, 1 Wlieat. 238; The Santissima Trini- dad, 7 Wheat. 283. And, further- more, what is called military salvage is sometimes allowable in case a ves- sel or other property is captured by an enemy and then recaptured before condemnation as prize by a compe- tent tribunal. 2 Pars. Shipping, 315 ; The Adeline, 9 Cr. 244; Bright. Fed. Dig. 750. Sometimes there is more than one set of salvors; as, for in- stance, where a salving vessel falls into distress, and another comes up to assist; and here both sets must take their due proportion; but un- necessary interference of any sort, whether by one set of salvors or an- other, can give no claim for salvage against the vessel intruded upon. 2 Pars. Shipping, 279-282; The Fleece, 3 W. Rob. 278; The Mary, 2 Wheat. 123; Bright. Fed. Dig. 748. And it is ruled that a vessel is not liable for the salvage due from the cargo, nor the cargo for that due from the ves- sel, but each must pay its own por- tion. The Pyrennee, Brow. & L. Adm. 183. As to proceedings by li- bel for salvage, see The Sabine, 101 U. S. 384. Proceedings in rem and in personam should not thus be joined. lb. Those entitled to sal- vage may apportion the amount among themselves by fair agreement. 5 P. D. 192. 2. Dig. 14. 2; Abb. Shipping, 473; 1 Pars. Shipping, 339. 494 CHAP. I.] SHIPS AND VESSELS. § 331 to avoid the impending danger or incurs extraordinary loss or expenses to promote the general safety, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure.^ There appears to be some confusion as to the exact definition of the term " general average." Some apply this term to the con- tribution ; others, such as Parsons, to the loss itself which is aver- aged, — the expense, the sacrifice, the damage, according to cir- cumstances.'* But a " general average contribution " is defined properly as " a contribution by all the parties in a sea adventure to make good the loss sustained by one [or more] of their number on account of sacrifices voluntarily made of part of the ship or cargo to save the residue and the lives of those on board from an impending peril, orfor extraordinary expenses necessarily incurred by one or more of the parties for the general benefit of all the interes.ts embarked in the enterprise." ^ General average losses, then, are divided into two classes : ( 1 ) those which result from the sacrifice of part of the property; (2) those resulting from the extraordinary expense necessarily incurred.* Some attempts have been made to limit the application of the general average rule, so as to exclude from its operation, by a sort of quibble, sacrifices made where otherwise the whole adventure would have been a total loss, and in cases of voluntary stranding; but the latest cases of authority in this country give little sanction to such an interpretation, and on the contrary regard the rule as therein applied with liberal favor.^ Voluntary stranding is, in these days, to be made good by general contribution. The strand- 3. ClifTord, J., in The Star of Hope, average is not founded upon contract, 9 Wall. 228. or thti relation created by contract; 4. Soo Bouv. Diet. "Average; " 1 but upon a rule of the common law, Pars. Shipping, 338, and n.; Wads- and upon the principle of th«> ancient worth V. Pacific Ins. Co., 4 Wend. 33; maritime law. Pirie v. Middle Dock 3 Kent Com. 232; Bright. Fed. Dig. Co., 44 L. T. N. s. 426. "Average," 67. 7. See The Star of Hope, 9 Wall. 5. See The Star of Hope, 9 Wall. 2^8; Maude & Poll. Shipping, 320; 2'S:8; 2 Arn. Ins. 770. Barnard v. Adams, 10 How. 270; 6. Semble that the right to general Fowler v. Rathbones, 12 Wall. 118. 495 § 332 THE LAW OF PERSONAL PROPERTY. [pART III. ing of a ship is voluntary, whenever the will of man in some degree contributes to the result, though the existence of the par- ticular reef or bank on which the vessel grounds was not before known to the master, and though he did not intend to strand the vessel thereon; provided he was aware that this danger was the chief, and deliberately chose the risk as the preferable one for the interests of all concerned, passengers aboard, shippers, and ship- owners. And although the ship be totally lost, yet if the strand- ing was voluntary and was designed for the common safety, and it appears that the act of stranding resulted in saving the cargo, the case is one for general average.^ In other words, it may be said that property being selected for the common peril that the re- mainder might be saved, it is not necessary ithat there should even have been an intention to destroy the selected property, in order to give a claim for contribution. Extraordinary expenditure for the general benefit in landing and transporting the cargo to a place of safety may give rise to a general average.^ § 332. The Same Subject. But general average contribution can only be claimed where the sacrifice, or at least the exposure to sacrifice, has been for the common benefit ; and, furthermore, where the sacrifice has accom- plished the desired object.^ The sacrifice must have been reason- ably necessary, and it must have been voluntary and intended, — not a sacrifice by the owners' fault or by mere peril of the sea.^ Thus, if goods improperly carried on deck happen to be washed overboard, there is here no general average; while the throwing 8. The Star of Hope, 9 Wall. 203. cargo to contribute on the principle See Austin Friars Steamship Co. v. of general average. Spillers & Baker (I^IS), 3 K. B. 586. 9. Rose v. Bank of Australasia, •where the master ran the ship against (1894) App. C. 687. a dock instead of suffering a greater 1. See Bright. Fed. Dig. 67, 68; 1 loss hy running her aground, and the Pars. Shipping, 347; Williams v. Suf- owners were obliged to pay for the folk Ins. Co., 3 Sumner, 510. damage to tbe dock and then were 2. See 1 Pars. Shipping, 345-362, allowed to force the owners of the and cases cited; Bright. Fed. Dig. 69. 496 CHAP. I.] SHIPS AXD VESSELS. § 332 of goods overboard for the common benefit — or, as merchants would say, a " jettison " — to relieve the ship in distress, cutting away the masts, and the like, all give claim for contribution, if the object in view be attained for the common benefit.^ And again, the community of extraordinary peril must have continued during the period of sacrifice ; for, as between ship and cargo, the latter is not liable to contribute in favor of the former, after it has been completely separated from the ship, so as to leave no community of interest in the adventure.* Damages occasioned to ship or cargo by causes existing prior to and irrespective of the peril on which the claim of general average is founded should not be reckoned.^ General average contribution is enforced on the principles above set forth, in such cases as a salvage for the common benefit, or expense incurred by an extraordinary and necessary deviation of the ship; and contribution is enforced against ship, freight, and cargo." Yet as to the interest of each and every party in the adventure, the sacrifice made or expenditure incurred must have been for the benefit of that interest; otherwise the party is not liable in this respect." The rule of adjustment in cases of this sort is that what is given for the general benefit of all shall be made good by the contribu- tion of all. This principle applies whether the sacrifice is that of a part of the cargo or of the whole or a part of the ship; although controversies concerning the adjustment of a general average con-' tribution arise most frequently in cases where some of the cargo* has been thrown overboard.^ 3. lb. See Butler v. Wildman, 3 B. 6. Bright. Fed. Dig. fir, fi8 : Co- & Aid. 402. lumbian Ins. Co. v. Ashhy, 13 Pet. 4. McAndrews v. Thatcher, 3 Wall. 331. 347. And see Hugg v. Baltimore, &.C., 7. lb., and cases supra. See Wil- Mining Co., 35 Md. 414; 180 Fed. son v. Bank of Victoria, L. R. 2 Q. B. C81; The Wm. J. Quillan, 180 Fed. 203. 681, 103 C. C. A. 647; Pettijohn v. 8. The Star of Hope, 9 Wall. 231. Oregon Co., 58 Ore. 392, 113 Pac. 438. et seq. Where a ship has sustained 5. See Fowler v. Rathbones, 12 injuries owing to voluntary stranding. Wall. 102. iuu! undergoes repairs in consequence, 32 497 § 333 THE LAW OF PEJtSO.NAL PROPERTY. [PART III. § 333- Captures, Privateering, Piracy, etc. Besides these topics are others peculiar to the law of shipping, which it would be foreign to our purpose to notice at length. its contributory value is its worth before such repairs were made, — just arid reasonable deduction being made in all cases for deterioration. And on this point the ship's value in the policy of insurance at the port of departure is competent prima facie evidence. lb. In case of a jettison of goods, their value is generally esti- mated at their prime cost or original value; yet the place where average shall be stated is dependent to some extent upon circumstances which af- fect rather the practical closing of the adventure than any technical ter- mination of the voyage; and it is well settled that, if the cargo arrive finally at its port of destination, the value of the goods at that port shall be taken. Barnard v. Adams, 10 How. 270; Bright. Fed. Dig. 69. The con- tributory value of the freight is ac- cording to the practice of some lo- calities, found by deducting one-third of the gross amount; an arbitrary rule, of course, but founded upon a rough estimate of the usual deduc- tion of wages and expenses, which could not be ascertained in a given ease without nice calculations. See Humphreys v. Union Ins. Co., 3 Mass. 439, per Story, J. As to the ex- penses allowable, it may be generally observed that in all cases the wages and provisions of master and crew, and indeed all expenses necessarily incurred during a detention for the benefit of all concerned, should be averaged; also repairs on the ship, so far as they may be necessary to enable the voyage to be resumed ; also sacrifices, by way of sales of cargo, the payment of extraordinary inter- est, or otherwise, such as are prop- erly made by a prudent master to raise the means for such repairs; and finally surveys, port charges, towage into the port of repair, and those extraordinary expenses in un- loading and reloading a cargo which must depend greatly on the special circumstances of the case; the allow- ances being liberal enough in general, to secure a complete indemnity for a prudent master's outlay in strict con- nection with the disaster for which contribution is claimed. The Star of Hope, 9 Wall. 234-237; Abb. Ship- ping, 601; 1 Pars. Shipping, 400; Orrok v. Commonwealth Ins. Co., 21 Pick. 469; Bright. Fed. Dig. 69; Barker v. Baltimore R., 22 Ohio St. 45. But expense for repairs, or le- gal expenses, are not to be averaged in a case of collision where the vessel was culpable. Emery v. Huntington. 109 Mass. 431. Where the parties enter into an " average bond," they are bound by a settlement made pur- suant to its terms. Fowler v. Rath-" bones, 12 Wall. 102. And a case of general average settled in a foreign port, according to the local law, may bind the parties concerned in this county, though not in accordance with our own rule. Peters v. Warren Ins. Co., 14 Pet. 99. See Fletcher v. Alexander, L. R. 3 C. P. 375. Such, then, is the doctrine of gen- eral average as fully established in this country. But in England the law in this respect is not so clearly 498 CHAP. I.] SHIPS AND VESSELS. § 33;] Thus we have a mass of decisions in the federal courts of the United States relative to captures during our belligerent years by way of prize. When two powers are at war, the seizure and detention of a ship at sea by authority of one of the belligerents, with the design of appropriating vessel and cargo, or either, makes it prize, and it becomes the lawful property of the captor after condemnation in a prize court.^ Privateering and piracy consti- tute each a sort of robbery or forcible depredation on the high seas. The latter has long been treated as a heinous crime by the law of nations, and punishable with death ; and the former is likely to become so regarded, if the world grows better instead of worse; for though it is said that privateering is lawful because permitted by a belligerent party, while piracy is unlawful because there is no such permission given, yet in either case, and whether there be peace or war, the plunder is that of private individuals who avail themselves of opportunities to fill their purses and satiate a reck- less greed ; not that of the military or naval forces of a belligerent.^ settled, and the American rule of con- tribution has sometimes been ques- tioned in the courts of that country. Fowler v. Rathbones, 12 Wall. 102. The English rule of average, as announced in late decisions of the English courts, isi as follows : Where goods are jettisoned for the common good, the loss as a rule comes within general average, and must be borne proportionally " by those interested." To this rule there i& an exception, viz., that deck cargo jettisoned is not entitled to general average contribution. To this excep- tion, however, there are two excep- tions, viz., that coasting vessels are without the exception, and also those cases where by custom the deck cargo is one customary in the trade, and, perhaps, also from the port. Semble, that where by agreement with the shipper the cargo is shipped on deck, no exception is created. Wright V. Marwood, 7 Q. B. D. 62, commenting on former decisions. Lost freight subjected to a common average contribution. Pirie & Co. v. Middle Dock Co., 44 L. T. N. S. 426. And see Whitecross Wire Co. v. Sa- vill, S Q. B. D. 653; Machlachlan Merchant Shipping, 3d ed. 653-693; 1 Maude and Pollock on Merchant Shipping, 4th ed. 425-437. 9. See 1 Kent Com. 101; Bright. Fed. Dig. 688-705; 2 Pars. Shipping, 458 et seq. The late civil war in America (1861-65) gave occasion for an exhaustive investigation of the law of prize in the United States courts, which, as later volumes of re- ports show, has been nearly concluded. See U. S. Rev. Stats., §g 711. 5308 et fteq. 1. See 1 Kent Com. 96, 183 ; United 499 § 334 THE LAW OF PERSONAL PKOPEETT. [PAET III. Privateering may be an effective weapon to use in war against one's enemy; but only in the same sense as private spoliation, by troops in an enemy's country: it is opposed to the idea of a humane self-restraint and generous combat. § 334. Jurisdiction of Courts of Admiralty. Fifth, as to the jurisdiction of courts of admiralty, to whose authority are peculiarly committed the interests of all concerned in navigation. Appropriate tribunals for the exercise of admir- alty powers have long existed in Great Britain. On the subject of admiralty jurisdiction in the United States, we may briefly observe that the Federal Constitution provides that " the judicial power shall extend to all cases ... of admiralty and mari- time jurisdiction." The Judiciary Act of 1789 vests the exercise of all the civil admiralty jurisdiction in the district courts of the United States ; and by subsequent statutes this jurisdiction is con- firmed, if not extended ; so that now this admiralty jurisdiction is fully recognized as embracing not only tide-waters, but also the great lakes and their connecting waters, and all rivers capable of being navigated by vessels which the statute recognizes as large enough to be engaged in commerce ; nor limited alone to foreign or interstate commerce, but applicable as well to commerce between ports of a State. In these matters the Supreme Court of the United States is the appellate tribunal of last resort; and that court in its latest decisions maintains the admiralty jurisdiction of the federal courts, as against all State encroachments, with strength and vigor.^ The most important questions relating to the law of shipping are decided in the admiralty courts, and the process in rem which States V. Smitb, 5 Wheat. 153 ; The term " torts " in admiralty juris- Bright. Fed. Dig. 216, 856. diction embraces wrongs which are 2. See Const., art. 3, § 2; Bright. suflFered in consequence of negligence Fed. Dig. "Admiralty." and cases and malfeasance. Leathers v. Bless- eited; The Eagle, 8 Wall. 15, com- ing. 105 U. S. 626. And. see Ex parte menting upon The Genesee Chief, 12 Gordon, 104 U. S. 515. How. 443; U. S. Rev. Stats., § 711. 500 CHAP. I.] SHIPS AND VESSELS. § 334 brings ship and cargo into the judicial custody has obvious advan- tages over common-law remedies. Yet courts of common law fre- quently adjudicate important controversies which grow out of the maritime contract; and wherever the admiralty and common law give the same remedies, under the law of shipping, as in most suits in personam, ihe suitor may elect his tribunal, — for the Judiciary Act saves to all suitors " the right of a common-law remedy, where the common law is competent to give it." ^ 3. Jurisdiction of a State court in- sisted upon in certain cases. Hill Man. Co. v. Providence Steamship Co., 113 Mass. 49i5. Exclusive juris- diction is not claimed by federal courts in suits in personam growing out of collision on inland waters. Schoonmaker v. Gilmore, 102 U. S. 118. A Tahiable article on the '"His- tory of Admiralty Jurisdiction " in this country will be found in the American Law Eeview for July, 1871, where the whole subject is examined in its historical bearings to that date. As to hypothecation, bottomry, lien, and marine insurance, see appro- priate chapters, post. As to jurisdiction of State courts concerning marine torts, see Kenner- son V. Thames Co., 89 Conn. 367, 94 Atl. 372 (navigable waters of State, etc.). As to a foreign vessel notwithstand- ing American charter, etc., see Man- ning V. International Co., 312 Fed. 933, 129 C. C. A. 453. And see The Bee, 216 Fed. 709; Oehler v. Ham- burg-American Co., 84 Misc. 272, 145 N. Y. S. 1090 (tort on the high seas) ; The Seven Brotliers, 170 Fed. 126 (R. I. D. C, 1909) (malicious tort). The general law of Shijjping lias lost much of its former importance to American practitioners, partly as a consequence of our rcivil conflict of 1861-65, during whose progress Amer- ican commerce became transferred .to foreign flags. Merchant shipping and commer- cial law have, on the other hand, become subjects of vast importance to the English profession during the same era. A new edition of Ab- bott's work (the twelfth) has ap- peared in London. And among more recent English treatises upon the same subject are two of considerable merit: Maude and Pollock on Mer- chant Shipping (which has reached its fourth edition and is cited as authority in the English courts) ; and Maclachlan on Merchant Sliipping (of which a third edition has appeared). Neither of these Avorks is prepared or edited for the use of American stu- dents. Common Carriore. by land or water, are considered in Schoul. Bail- ments, parts vi, vii, and in various special works on Carriers. 501 CHAPTER II MONET § 335. Money Defined; Its Nature and Uses. The second and onlj remaining species of personal property of a corporeal character which claims our attention by reason of its unusual significance at the law is money. By the word " money " we may denote that medium of exchange which 'any people uses. With the American people, and among all civilized nations with whom we hold intercourse, this word is confined to metallic coins, except so far as a paper currency which- by law or usage rs per- mitted to circulate in the community for the like purposes of ex- change may bo allowed to come within the definition. The great characteristics which money possesses, and the qualities which give it so great power, are seen in two facts : that it is everywhere accepted within the public jurisdiction as* the convenient standard by which may be measured the exact value of all other things ; and that it is also the common and appropriate medium whereby a person may barter services, or may exchange one article with which he means to part for another which he desires to acquire. Money, in other words, is both a standard of value and a medium of exchange.^ In the history of all governments what we call money has exerted an immense influence; yet very numerous and dissimilar substances have sei'ved the purposes of exchange and standard of value at different periods and among various tribes and nations. The Carthaginians used, it is said, a sort of leather bank-note; bark of the mulberry-tree cut in round pieces, and stamped with the sovereig-n's mark, suffice for some of the Asiatic countries; coal, shell, and bone, together with various metals and minerals more or less precious, have served frequently as the clumsy medium fnr simple and unlettered tribes ; again, as students of American 1. See Mapree on Banks and Bank ing. 502 CHAP. II,] MOXEY. § 336 history need not be reminded, the Indians who held sway while this continent was a wilderness made of their wampum, or strings of small spiral shells, a currency sufficient for all their needs. But gold and silver attained early a pre-eminence, among civilized nations, as the most convenient medium of exchange and the money standard; and from an international standpoint, as also from local public considerations, some accepted unit of a money stand- ard is desirable, such as the more precious and rarer of these metals the better affords. § 336. The Same Subject; Coinage of Money. Yet it was a long time before these precious metals became sub- jected to the process of coinage; the money of the ancient Jews and others of whom we have authentic accounts being weighed, and not counted out. Possibly to the Lydians, perhaps to the people of -^gina, but more probably to some Asiatic country older than either, is the world indebted for the introduction of the coin- age system, — a system whereby the sovereign gains a strong control of the metals in common circulation ; not without conferring upon his people positive benefits in return, by enabling the value of each piece to be detected at a glance, and the false to be distinguished from the true with comparative ease, as also increasing the con- venience of circulation. The rise of commerce and navigation among the ancients was certainly followed speedily by the introduc- tion and growth of coinage as an art ; and it might well be sup- posed that, as the demand for a circulating medium increased and broadened, those who were accustomed to using pieces of gold and silver cut into shekels, talents, and drachms, bethought themselves how they might stamp and mark each piece in such a manner that, once weighed and passed into circulation, the successive holders should feel confident of its true worth and weight without casting it into the scales anew. From Grooco the system of coiimgo pene- trated into Gaul, and from the colony of Massilia, now ^Marseilles, extended to Britain.^ 2. See Encycl. Am. "Money:" Bl. Com. 276: Storj- Const.. § 1111 Encycl. Britt. "Money;" 1 Ewell's et scq. 503 § 338 THE LAW OF PEKSONAL PROPERTY. [PAKT III. § 337. Copper, etc., Coins, and Their Uses. As a baser metal, copper was used according to weight from a very early period in Rome; nor was it until about two, centuries before the Christian era that the Romans issued gold and silver coins by way of substitute for the first time. The ancient Britons had coins of imported brass, also of tin and iron, the product of their own mines ; and Csesar at the time of his invasion found them with "both lozenge and gold money; or, instead of money, rings adjusted to a certain weight." Some base metals are found convenient in every community ; the obvious purpose of their use being to avoid the necessity of making subdivisions of the more precious metals so minute as would render them of inconvenient size for passing from hand to hand when exchanges of small value were to be effected ; and the same principle applying to silver for an intermediate base use as compared with gold. Copper coins are found convenient in these days for such small fractional cir- culation ; they constitute the pence and half pence of England ; and in this country copper — or more recently, a sort of amalgam of copper with nickel and other specified metals — is coined and issued from the mint to answer a like purpose, in accordance with statute and the usage of government for nearly a hundred years previous.^ § 338. Advantages of Gold and Silver for Purposes of Money. Some of the greatest advantages possessed by gold and silver over all the other articles which have been used to serve the pur- poses of money are: jirst, that these metals are sufficiently rare, the world over, to have an intrinsic value corresponding to the bulk, which constitutes a convenient medium of exchange and transportation; second, that, being metals, they can be melted, run into moulds, and exactly divided into fractional parts ; third, 3. See 7 Jefferson's Works, 462; Encycl. Am. '* IMoney." Evidence by Legal Tender Cases, per Clifford, J., common knowledge of value of silver 13 Wall. 587; Briglit. Dig. "Coin- coins, see Chamberlayne Evid., § 725. age;" Encyel. Britt. "Money;" 504 CHAP. II.] MONEY. § 339 tliat they can be kept for an indefinite period without deteriorat- ing; fourth J that while from various causes almost all other com- modities rise and decline rapidly in value and are subject to great fluctuation in price, the value of gold and silver changes only by slow degrees ; fifths that they do not wear out readily by the con- stant handling to which all money is exposed; sixth, that their identity is perfect, the pure gold and silver furnished by the mines of one country having the same qualities with those of another. Hence gold and silver became universal money ; " not," as Turgot has observed, " in consequence of any arbitrary agreement among men, or of the intervention of any law, but by the nature and force of things." '^ § 339. Money as a Standard of Value ; Its Circulation Limited. Yet, notwithstanding the introduction of gold and silver as money, equivalents are still given for equivalents, and the stand- ard of value is not necessarily increased or diminished thereby. We might still say that a plough was worth so much corn, or, as they expressed it in Homer's day, that a full armor cost so many oxen.^ One thing is frequently exchanged for another, without the medium which gold and silver coins present, and with that mental comparison of commodity values made more obvious, which the medium reference diverted from sight. Gold and silver may be sold like other merchandise, as, for instance, where a jeweller buys it to be fashioned into plate. And as money is the means, and not the end ; something for procuring food, clothes, neces- aaries, and luxuries, not the substance to be enjoyed or consumed, it is manifest that only a limited amount is needed for circulation in any community ; which amount must depend greatly upon the fluctuating population and the products to be circulated upon tlie separate transactions which are effected through the giving or tak- ing of money in payment. But when a plough is said to be worth so much com, there is an uncertainty in the minds of those who do not deal in corn ; and so men agree to rate corn, ploughs, and all 4. See Encyel. Britt. " Money." 5. Homer Iliad, lib. 6, line 235. 505 § 341 THE LAW OF PEKSOXAL PKOPEKTY. [pART III. other -articles of property according to the moriej standard, and we know then by arithmetical comparison what each thing is worth. § 340. Money with Reference to Sale, Barter, etc. So, in the common language of mercantile men, the giving of money for a commodity is termed buying; and the giving of a commodity for money, selling. By price, too, we signify the value of a commodity rated in money. And in case one transfers directly goods and chattels for other goods and chattels of equal value, without the use of money, it is usually said that he makes a barter or exchange, — not a sale.^ § 341. " Lawful Money," as Contrasted with Bullion, etc. ; Legal Tender. While the reader may understand, from what has been already said, that money is a species of corporeal property, or a chose in possession, with an ultimate identity of its own, he should also be reminded that the system of coinage now so prevalent among civil- ized nations brings about a more conventional definition of the word " money " than that already given. We do not usually apply the word to gold and silver uncoined and in the lump or mass; for that is termed bullion. And the word " bullion," when con- sidered in connection with our coinage acts, includes, apparently, even foreign coins, which must be melted up and recoined before they can circulate in this country; though with reference to the usages and laws of the country where they were coined, and where they circulate, one should still speak of them as money.'' In common language the word " money " is used as synonymous with gold and silver coins, — the coins which usually circulate in a country as the sole authorized medium of exchange. So far as 6. See the above words in Bouv. 7. See Bouv. Diet. '" Bullion." Evi- Dict. ; also, Webster and Worcester; dence to identify money, see Cham- also vol. ii, post, as to Sales. berlayne Evid., § 1131. 506 CHAP. II.] MONEY. § 342 concerns the United States, indeed, this has been thought by many to be the only legal definition of the word; for the Constitution provides that Congress shall have power " to coin money, regulate the value thereof, and of foreign coin ; " and, again, that no State shall coin money, emit bills of credit, or make anything but gold and silver coin a tender in payment of debts ; and hence it is argued that the only lawful " money " of the United States con- sists of our gold and silver coin. But, as we shall presently see, this is a theory which has been disputed and apparently overthrown in a remarkable instance.^ That the word " money " was gen- erally used in that exclusive sense until the era of our civil war will hardly be disputed, however, by any one familiar with Ameri- can legislation. And so well did Congress maintain the doctrine that our gold and silver coin constituted the only lawful money of the United States, that they were careful, until much later, not to legislate that our copper and nickel coins or the coins of foreign nations should do more than " pass current," — regulating the value of the latter as the Constitution gave them power to do.' And yet our gold and silver were constantly declared to bo a '' legal tender " for pa^nnents, each according to its nominal value ; that is, that any one owing a debt might tender gold and silver coin of the United States for the full amount to his creditor, who was legally bound to receive it in payment and satisfaction.^ § 342. Distinction Between Corporeal and Incorporeal Person- alty with Respect to Money. This " legal-tender " aspect of money, it may be added, which is an important on(> in connection with its use as a medium of exchange, becomes in practice the convoniont test for distinguishing money from that which passes about as though it were money; a bank check or note, for instance, which is ni\er\ taken, yot may be 8. Spo Const. IT. R., art. 1. §§ 8, 9. See Briefnre 1875. Bigler v. Waller, 14 Wall. 297: Railroad Co. V. Johnson. 15 Wall. 195. But once more (1884) by a decision from 51; whicli only one of the justices dis- sented, and in a test case brought upon a legal tender note reissued after the war, tlie Supreme Court abandoned this whole financial issue to the omnipotent discretion of Con- gress; declaring that Congress has. in times of either peace or war, the constitutional power to make the notes of the United States treasury a legal tender. Juilliard v. Green- man, 110 U. S. 421. Yet, this should be considered as largely by way of dictum, under a .'situation growing out of the Civil War essentially. 2. See Act March .1, 1863, § 4: Bright. Fed. Dig. " Currency." And see U. S. Rev. Stats. (1878), §§ 3571- 3583, for the currency acts. 3. Tliorington v. Smith, 8 Wall. 1. 11. § 347 THE LAW OF PERSONAL PKOPEKTY. [ PART III. binding to the extent of the actual value of these dollars, at the time and place of the contract, in lawful money of the United States."* Yet payment in Confederate currency having been made and accepted in good faith as between individuals of an insurgent State, the debt was discharged.^ But it is also decided that, after the conflict broke out, debtors in the rebellious States had no right to discharge debts owing their creditors in the loyal States, in any other currency than the legal currency of the United States.^ Nor is the claim that payment in Confederate currency was intended, to be set up in doubtful cases/ § 347. Specie and Currency Distinguished. " Specie " and " currency " are words now in familiar use, and deserve a passing distinction. The term " in specie," as applied to money, has acquired, among business men in this country, the signification that the amount payable shall be in so many gold or silver dollars of the coinage of the United States. On the other hand, commercial usage generally applies the words " in currency " to denote that the note is payable in paper notes, and not in metallic coin, if the two kinds of money are in circulation.^ Specie, in other words, is restrictive in its application ; while cur- rency has a very broad signification when used with reference to money, and includes the aggregate of coin, bills, and notes in cir- culation as money without qualification. We speak of metallic currency, paper currency, and a mixed currency; but specie dollars are gold and silver dollars and nothing else. 4. lb.; Bisscll v. Heyward, 96 U. S. as to Virginia coupon cases (coupons 580; Effinger v. Kenny, 115 U. S. receivable for the State taxes) ; Poin- 566. dexter v. Greenhow, 114 U. S. 270; 5. Glasgow V. Lipse, 117 U. S. 327; Carter v. Greenhow. 114 U. S. 317; 94 U. S. 434. Ryan v. U. S., 135 U. S. 664. 6. Fretz v. Stover, 22 Wall. 198. 8. See Field, J., in Trebilcock v. See as to "bankable currency" in a Wilson, 12 Wall. 695; also, Worces- Confederate contract, Rives v. Duke, ter's and Webster's Diet. " Currency," 105 U. S. 132. " Specie." 7. Cook V. Lillo, 103 U. S. 792. See 516 CHAP. II.] MOITET. § 348 § 348, Counterfeiting, Forgery, and Kindred Crimes. Govermnents having, as wo have seen, long asserted the prerc^a- tive of regulating and controlling the coinage,^ counterfeiting the coin is usually treated by the common law of England as an offence against the king or government. It was formerly punished as treason, though now it is only felony. But perhaps the better opinion is, that counterfeiting is a species of the crime of forgery, to which it is at all events quite analogous; and forgery rests on the broad foundation of an attempt to defraud individuals, and is punishable accordingly.' The Constitution of the United States gives Congress the power *' to provide for the punishment of coun- terfeiting the securities and current coin of the United States." ^ Congress has accordingly, from time to time, enacted laws for punishijig crimes against the coinage.^ And, besides the offence of making counterfeit money in imitation of that of the United States, there are the kindred offences of uttering or passing coun- terfeit money, and of debasing the coinage ; counterfeiting foreign money being also punishable : all of which matters Congress aims to control by legislatioiu And with the issue of legal-tender notes, and other paper currency, and the vast increase of our public debt, this sort of legislation advances still further ; and bonds, coupons, national currency. United States notes, treasury notes, fractional notes, checks for money issued by officers of the United States, certificates of indebtedness, certificates of deposit, stamps, and other representatives of value of whatever denomina- tion issued by any Act of Congress, are all made punishable by law, the crime of counterfeiting thus still more closely assimilating to that of forgery.'* 9. Supra, § 343. or both, at the discretion of the 1. See 1 Bish. Crim. Law, 4th ed., court, according to the aprj^ravation § 930; 2 ib., § 260 et seq.; 4 Ewell's of the offence. Sec Bright Fed. Bl. Com. 97; 1 Russ. Crimes, Grea. Dig. "Crimes;" Act Tune 8, 1864, ed. 54 et seq. § 1. 2. Const. U. S., art. 1, § 8. 4. See ib., Act June 30, 1864, § 13 ; 3. Thus, by aet of June 8, 1864, the Act March 3, 1863, § 8; United States penalty is by fine or imprisonment, v. Howell, 11 Wall. 432. 51Y § -349 THE LAW OF PKIJSOXAI, I'UOPEKTY. [PAKT III. §349. Bills of Credit ; Prohibition upon States. Since the Constitution prohibits States from coining money, emitting bills of credit, and making anything but gold and silver a tender in payment of debts, while conferring upon Congress the vast money powers which we have just considered, the exclusive regulation of the currency is in the federal government.^ But such was not the case prior to 1789. The American colonies being almost destitute of coined money from the earliest period, and having the balance of trade constantly against them in their transactions with Europe, were early driven to the issue of paper money for home circulation. During the Revolutionary war, the several States vied with the Continental Congress in furnishing an irredeemable paper medium. So terribte were the conse- quences, that the framers of our present Constitution, still strug- gling with the continental currency, were zealous in the effort to guard against like calamities for the future ; and hence this pro- hibition to the States. Bills of credit, then, cannot be issued by The words " false, forged, and counterfeit," in a statute of this sort, will receive a fair construction in the courts; and the use of such words implies that the coin or bill issued was something purporting to be, or in the similitude of, the lawful money of the government, and not in reality genuine or valid. United States v. Howell, 11 Wall. 432. And see U. S. Rev. Stats., §§ 5413-5437, 5457-5462. Nor does it appear that the constitu- tional grant of power to provide " for the punishment of counterfeiting " admits of narrowing down so as to defeat its just intent; for though the offence of " passing " counterfeit coin is not clearly embraced within the words of the Constitution, yet in a number of statutes and decisions, the right of Congress to punish this offence is assumed. See Bright. Dig. "Crimes;" Bright. Fed. Dig. "Crimes;" Bish. Crim. Law, § 268 et seq. But see Fox v. State of Ohio, 5 How. 410, passim. And it is clearly established that Congress may pro- vide for the punishment of bringing into the United States, from abroad, false, forged, and counterfeit coin, made in the similitude of federal money; and for the punishment of uttering and passii^ the same. United States v. Marigold, 9 How. 560. The different States frequently enact laws, likewise, punishing the of- fence of circulating counterfeit coin of the United State's; and such stat- utes are not repugnant to the Consti- tution. Fox V. State of Ohio, 5 How. 410. See 83 Fed. 736, 106 C. C. A. 174. 5. See Const., art. 1, §§ 8, 10. 518 CHAP. 11.] :>iom:y. § 350 a State, under the Coustitiition of the United States, in force since 1789. But what are " bills of credit " within the prohibition of the Constitution? To constitute such a bill, it must be issued by a State, on the faith of the State, and be designed to circidato as money in the ordinary uses of business.^ And thus it has been held that certificates issued by a State in small sums, receivable in payment of State, county, and town dues, are bills of credit and so prohibited/ lint where a bank was incorporated by a State, was managed by directors under its charter, had a capital stock actually paid in and liable for its debts, and was subject to suit for non-payment, the Supreme Court of the I'nitcd States refused to treat its bills as " bills of credit " issued by the State, though the State owned the entire stock, the legislature elected the direc- tors, and the faith of the State was pledged for the redemption of the bills, these being made receivable in payment of all public dues.^ It has since been suggested that the principal ground for distinguishing these last bills from " bills of credit " as emitted by a State was, that they rested not on the credit of the State, but on that of a corporation as derived from its capital stock; ' and perhaps that decision went to the very verge of constitutional limitations. § 350. National Banks and Their Currency. To provide for possible exigencies of the government, besides furnishing to the people a convenient circulating medium usually redeemable, national banks have sometimes been deemed a public necessity. In the time of William and Mary was established the Djink of England, by whose operations wars are carried on and 6. Briscoe v. Bank of Kontiioky, 11 of Arkan'ias;, l.i How. 31 S. Coupons Pot. 311. issuixi by a State, payable at a day 7. CraiR v. I^Iissouri, 4 Pet. 410. portiiin, and rowivable after maturity 8. Darrington v. Bank of Alabama, by tbe .State fur taxes and debts, are 13 How. 12. See WoodrufT v. Trap- not bills of cre98; En, 717. The United States haS the constitu- tional power to declare its priority in four casi-s: (1) where a debtor dies without leaving siinioicnt assets; (2) where a debtor is a legal bankrupt or 537 § 364 THE LAW OF PERSONAL PROPEKTY. [part III. § 364. Rule as to Preferences Among Creditors. In legal assets, attachment or execution creditors are as a rule entitled to priority, subject of course to pre-existing liens. The insolvent; (3) where a debtor is in- solvent, and voluntarily assigns all of his property to pay his lebts; (4) where a debtor absents or conceals himself or absconds, and his effects are attached by process of law. 1 Kent Com. 247. Prerogatives like these are, of course, in derogation of the rights of the citizen, and should not rest upon uncertainty. The priority of government is not in the nature of a lien; nor can it defeat prior mort- gages, attachments, or liens generally, which already exist for the benefit of private creditors. See Beaston v. Farmers' Bank of Delaware, 12 Pet. 102; Bright. Fed. Dig. 75, 717; Brent V. Bank of Washington, 10 Pet. 596. The modern tendency, especially in this country, is to upturn the whole doctrine of priority according to the classes of debts, and where a debtor is insolvent to introduce preferences among private claimants founded rather upon considerations of decency and humanity. Thus, by the statutes of most States, the expenses of last illness and funeral, and the adminis- tration expenses, are placed upon the common footing of priority over all the general debts of a deceased person. See 3 Redf. Wills. 249 : 2 Wms. Ex'rs, 10th Eng. ed. 739. And the wages of domestic servants and of laborers are, whether as legally or morally bind- ing, treated with considerable favor wherever an insolvent estate is wound up. 2 Bl. Com. 511; 2 Wms. Ex'rs, 10th Eng. ed. 761; 2 Schoul. Wills & Ex'rs. § 1428. So, too, the widow of a deceased insolvent has special al- lowances granted for the wants of herself and children, that they may not be left utterly destitute. See 2 Schoul. Wills & Ex'rs, § 1451. In many parts of the United States the order of paying the expenses and debts of a deceased person in case of insol- vency is prescribed by local statute. 3 Schoul. Wills & Ex'rs, § 1428, and note. And general bankrupt or State insolvent laws are expressed with cor- responding precision. See Wilson v. Shearer, 9 Met. 504; 2 Kent Com. 419, n. Not to examine more minutely the American statutes on this perplexed subject of priority, it is enough to add that, while we find a recognizance admitted to be of higher dignity than a debt by specialty by many of our courts, we also find that all distinc- tions as to order of payment between specialty and contract debts are rap- idly fading out of American practice. In some States, docketed judgments are entitled to priority according to the order of docketing. It is quite common to place most simple-contract debts as on the same footing with cer- tain specialty debts. See various statutes cited in 2 Kent Com. 417- 419, n.; 2 Schoul. Wills & Ex'rs, §§ 1426-1428. In England such was tile dissatisfaction in later times with the preferential distinctions between the specialty and simple-contract debts of deceased persons, that Parlia- ment, by Stat. 32 & 33 Vict., c. 46, abolished (1870) all such priorities. In short, the whole doctrine of prior- ity is shaped by legislation; and 538 CHAP. III.] DEBTS IN GENERAI.. § 365 creditor who thus gets priority at law is entitled to retain it But the principle which obtains in equity, and which is recognized especially in settling insolvent estates of the dead or living, is, subject to the preferred classification already noticed, to share the estate among creditors in their just and due proportions. Yet superior diligence may give a preference in equity, where no ques- tion of insolvent distribution arises, but the controversy is rather over a particular fund; and the creditor first pursuing the fund will be entitled to the benefit of it over other creditors.^ Under local insolvent laws, the doubtful policy was sometimes sustained of permitting an insolvent who assigns to prefer as among his o\vn creditors.^ But under the Federal Bankruptcy Act of 1898, which superseded local laws, preferences were forbidden by an insolvent, and the trustee of the bankrupt was even authorized in certain cases to recover from the preferred creditor money paid him by the bankrupt.^ § 365. How a Debt is Discharged. Debts are discharged in various ways ; but the principal method, according to the law-books, and certainly the most proper, as all creditors will admit, — though debtors sometimes think other- wise, — is by payment. And by payment we usually mean the discharge in lawful money of the sum due. Yet, as we have seen in the preceding chapter, debts may be practically discharged by giving goods in return, or by rendering some service, or by paying checks, notes, or bills:, midor siiitablo circumstances, as the accepted sometimes debts aro classed accord- v. Mason, 4 Hare, 132; c. on Liens, ing to the form of the debt, sometimes post. accordingr to the party creditor, and 9. Sw Collier on Bankruptcy for a sometimes accordinjr to the nature of full consideration of this statute. the debt. Local statutes create at 1. Codwise v. Gelston. 10 Johns. pleasure purely arbitrary preferences. 507; Gordon v. Ix)well, 21 Me. 2.51; And whatever the legal preference 4 Johns. Ch. 687; 2 Stew. (Ala.) 378. among debts, existing liens on the 2. See Clarke v. White. 12 Pet. 178 ; property, whether created by law or Fitzpatrick v. Flannagan, 106 U. S. contract, must first be satisfied. See 648. Turain v. Gibson, 3 Atk. 720: Lloyd 3. See Collier on Bankruptcy. 539 § 365 THE LAW OF PERSONAL PROPERTY. [PAET III. substitute for money.'* Sometimes the duty to pay and the right to receive payment vest eventually in the same person. A debt may also have been released by the creditor. And when one is a bond fide bankrupt or insolvent, an opportunity is afforded him by the bankrupt or insolvent laws to have all his debts wiped out after he has surrendered up his property and otherwise complied with the requirements of statute. So, when one dies, his debts, whether he leaves the means for paying them or not, become dis- charged by the final settlement of his estate, and his heirs need not assume a dollar of them. And, to a certain extent, the policy of our law permits a person to hold articles of property necessary and suitable for himself and his family, free from the demands of all creditors whomsoever; while a creditor may likewise lose the opportunity of recovering the debt due him, by neglecting to bring suit within the period fixed by the statute of limitations. And though the honest payment of debts was so strongly enforced and inculcated in the days of our Anglo-Saxon ancestors, that a poor man who failed to pay his creditors might be thrown into prison, the established American policy and the prevailing tend- ency of legislation in all civilized countries is to abolish utterly the penalty of imprisonment for debt, to set the unfortunate man on his feet, and bid him go forth and try once more to make a name and gain an honest livelihood.^ 4. See supra, § 351 ; Very v. Levy, charges l, joint debt may discharge 13 How. 345; First Nat. Bank v. the several liabilities of the joint Davis, 135 Ga. 687, 70 S. E. 246. debtors also. Rixon v. Emary, L. R. 5. See 1 Poth. Obi. 408, 429, 443, 3 C. P. 546. See Gates v. Andrews, 449; Bouv. Diet. "Debt;" 2 Kent 37 N. Y. 657. And, in general, a Com. 403. The full discussion of release to one of several joint debt- these subjects belongs properly to ors, on accepting his proportion of other works. There may be a tech- a release of all the joint debtors. nical discharge of a debt, not as a Milliken v. Brown, 1 Rawle, 391. fact, but by operation of law; for But see Smith v. Bartholomew, 1 instance, where two are jointly liable Met. 276. And where a creditor ac- and a judgment is obtained against cepts the sole liability of one or more one, the debt is extinguished as joint debtors, this is a good eonsider- against the other. Wms. Pers. Prop., ation for his agreement to discharge 17th Eng. ed. 460. A deed which dis- all the other debtors from liability. 540 CHAP. III.] DEBTS IN GENERAL. § 360 § 366. The Same Subject; Effect of Paying Smaller Sum, etc. Concerning the payment of debts, there are a great many re- ported cases in the books, by no means harmonious in the con- clusions they reach ; these questions usually arising where a partial payment of the debt is made by the person owing it. But we may now accept it as a rule, that the payment of a smaller sum is no valid legal discharge of a larger one, and cannot be pleaded either as payment of an unquestioned debt, or as accord and satisfaction, unless there be some legal benefit or legal possibility of a benefit to the creditor, sufficient to amount to a consideration for his promise to relinquish the residue.^ For even if the creditor so agreed, his promise is nudum pactum, and without legal force. And yet the modern tendency, especially in this country, where credit is frequently so carelessly or unwisely given, and it is often found quite convenient to take what a debtor offers rather than run the risk of losing all that is due, is undoubtedly to strain a point for discovering some new consideration or collateral benefit, Lyth V. Ault, 7 Ex. 669; Sheehy v. Mandeville, 6 Cr. 253. Where two are jointly bound as principals, re- lease of one will operate to release the other, unless the remedy is expressly reserved. Yates v. Donaldson, 5 Md. 389. Though joint creditors cannot generally divide a claim, yet if a debtor procures release from a por- tion of them he cannot object that the others sue separately in equity. Upjohn V. Ewing, 2 Oliio St. 13. Taking new security from one of two joint debtors will release the other, only where express or implied inten- tion of creditor favors. Parker v. Cousins, 2 Gratt. 372. On the death of one of two joint debtors, the cred- itor may proceed against the sur- vivor, or against the estate of the deceased, at his option. Ralston v. Moore, 105 Ind. 243. Agreement of creditor to discharge one partner, on his securing the payment of a portion of the debt, but reserving the right to proceed against another partner, is held (without here discussing prin- ciples, but rather considering the in- tent), not to operate to discharge the latter partner. Browning v. Grady, 10 Ala. 999. 6. Norman v. Thompson, 4 Ex. 755; Cumber v. Wane, 1 Str. 426, s. c, with notes and comments, 1 Smith Lead. Cas. 439 et scq. : Fitch v. Sut- ton, 5 East, 2-30: Cooper v. Parker, 15 C. B. 822; Evans v. Po^vis, 1 Ex 601 ; Dederick v. Leman, 9 Johns 333; White v. Jordan, 27 Maine, 370 Warren v. Skinner, 20 Conn. r>59 Curtis V. Martin. 20 111. 557; Har riman v. Harriman, 12 Gray, 341; Bryan v. Fox. 69 N. C. 45: Bliss v Schwarts, 64 Barb. 215; Whiting v. Plumas Co.. 64 Cal. 65; Longworth V. Hiaham. 89 Ind. 352. )41 § 366 THE LAW OF PERSONAL PROPERTY. [part III. SO as to sustain the creditor's promise to take the lesser sum in satisfaction of the greater.^ And the concurrence of some or all of the other creditors of a debtor in extending time or accepting a composition, will prevent such promises from being a nudum pactum.^ An agreement to release a debt based upon the per- formance of specified considerations requires, of course, perform- ance before the satisfaction is complete.' The rule that payment of a smaller sum cannot be a satisfaction of a larger debt, applies, too, only to cases of strict debt, — that is, where the larger sum owing by contract is fixed and liquidated, or 7. See Kellogg v. Eichards, 14 Wend. 116; Brooks v. White, 2 Met. 283 ; Harper v. Graham, 20 Ohio, 105 ; 1 Smith Lead. Cas. 447, Hare & Wal- lace, notes. 8. lb.; § 372, post. Accord and satisfaction ought to be full, perfect, and complete, in order to stand strongly. As to equivocal acceptance see Willey v. Warden, 27 Vt. 655. Taking certain other property of the debtor as in full satisfaction, may, in a perfectly fair and bona fide case, suffice. Williams v. Phelps, 16 Wis. 80; Very v. Le\^, 13 How. 345. And see Parker v. Parker, 1 Gray, 245. But the money or property must have been accepted in payment, and not by way of security. Barnes v. Lloyd, 1 How. (Miss.) 584. It is said that accord of a deed cannot be by parol; but an instrument under seal re- quires something equally high ; this, however, being a purely technical rule, loses much of its old force in modern times. See 12 Ark. 148; 1 How. (Miss.) 584; Young v. Power, 41 Miss. 197. Hinckley v. Arey, 27 Me. 362, goes even farther for a debtor's benefit. Acceptance of a less sum before payment is due may constitute a good satisfaction of the debt. Bowker v. Childs, 3 Allen, 434 ; Brooks v. White, 2 Met. 283. Where debt is paid as to principal, and the payment falls short only in interest, the rule of insuffi- ciency of part payment is not to be favored. Johnston v. Brannan, 5 Johns. 268. But fraud and misrepre- sentation may be shown (at all events in equity) to vitiate the ac- cord. Stafford v. Bacon, 1 Hill, 532; Shaw V. Clark, 6 Vt. 507. And ac- cord without satisfaction is not a bar to an action; for, in general, ac- cord should be executed and not executory. Russell v. Lytle, 6 Wend. 390; Clark v. Bowen, 22 How. 270; Molyneaux v. Collier, 13 Ga. 406; Hall V. Smith, 15 Iowa, 584; Black- burn V. Ormsby, 41 Penn. St. 97. Creditor's delay to sue until the debt is outlawed may bar or impede recov- ery, but it does not extinguish the debt. 1 Ala. 708. Nor does death or the insolvency of the creditor. Duval V. McLoskey, 1 La. An. 365. Nor, necessarily, does the release of a debt in terms by one's will. Hobart v. Stone, 10 Pick. 215. And see U. S. Dig., 1st series, Debtor and Creditor, 8-23. 9. Memphis v. Brown, 20 Wall. 289. 542 ClIAP. III.] DEBTS IN GENERAL. § 366 SO ascertained bj mere arithmetical calculation ; and not to claims and demands in general, where the sum which should be paid is unliquidated and unascertained in amount.' We have seen that, as to persons jointly indebted, the liability of one is sometimes accepted as a substitute for that of all.^ Where again the debt is in dispute as to amount or just legal existence, a sum may be mutually and deliberately agreed upon and accepted by way of compromise.^ Undoubtedly, the creditor's acknowledgment of payment in full is prima facie evidence that the whole has been paid him; though every mere receipt is open to explanation.'* And a solemn release under seal, suitably expressed in terms and hona fide given, may preclude all claim on the creditor's part that more remained due.^ 1. Wilkinson v. Byers, 1 Ad. & Ell. 106; McDaniels v. Lapham, 21 Vt. 223; Lamb v. Goodwin, 10 Ired. 320; Brown v. Cambridge, 3 Allen, 474; 96 U. S. 430. 2. Supra, § 365, n.; Lyth v. Ault, 7 Ex. 669; Sheeliy t. Mandeville, 6 Cr. 253. 3. Palmerton v. Huxford, 4 Dcnio, 166; Cool V. Stone, 4 Iowa, 219; Draper v. Pierce, 29 Vt. 250. If there be a bond fide dispute as to the amount due from one person to an- other, or the amount be uncertain and unliquidated, a bond fide and volun- tary compromise and payment of a certain agreed sum as a Satisfaction of tlie entire claim is valid. Fire Ins. Asso. V. Wickham, 141 U. S. 5G4. A suit may be compromised and pay- ment becomes accord and satisfaction. Boffinger v. Tuyes, 120 U. S. 198. Prepayment of part of a claim may by agreement afford consideration for release of the residue. Fire Ins. Ass'n V. Wickham, 141 U. S. 564. As to comproni'so agreements, see § 372. 4. See Marshall, C. J., in Hender- son V. Moore, 5 Cr. 11. A receipt given by a third person is not evi- dence of payment as against a cred- itor who did not authorize. Ferris v. Boxell, 34 Minn. 262. 5. As a general rule a payment of less than the whole of an undisputed debt to a fixed amount, already pay- able, is not a satisfaction of tlie bal- ance; even though it were agreinl to be received in full of the whole debt. The obligation of the debtor to pay the whole amount being complete, his engagement to pay a part forms no consideration for the agreement to re- lease the balance; hence that agree- ment forms no bar. To render the release of balance obligatory there must be something in tlie transaction which can be treated aS a new con- sideration. Daniels v. Hatch, 1 Zabr. 391 ; Fire Ins. Ass'n v. Wickliam, 141 U. S. 564 ; United States v. Bostwick, 94 U. S. 53; Geiser v. Kershner, 4 Gill & J. 405; Sullivan v. Finn, 4 Greene (Iowa), 544; Bailey v. Day, 26 Mo. 88. Much less does the agree- ment to receive the less sum bind as 543 § 367 THE LAW OF PERSONAL PROPERTY. [part III. § 367. Effect of Debtor's Note or Check by Way of Discharge of Debt. Whether the debtor's own check or negotiable note, given in discharge of the debt, amounts to a valid discharge, is sometimes made a question ; and upon this point authorities differ somewhat in this country, though by the better opinion the intent of the transaction depends upon the facts. A good check which has been taken in payment will generally have the effect of cancelling the debt; though, if the check prove worthless, or is dishonored by the bank, there is no payment ; and in general 'the presumption is that any check is regarded originally not as payment per se, but as a means of procuring at once the money.^ But as to a promissory agreement before the payment in part, &c., is actually made. Smith v. Keels, 15 Rich. L. 318; Palmer v. Yager, 20 Wis. 91. We observe, how- ever, that the cases which follow this general rule generally present as facts, 8.nd often so state as principle, a parol satisfaction of this sort; and semble if a release in full under seal were given, this would import such consideration that creditor could not sue for residue. See Bohr v. Ander- son, 51 Md. 205; Fitzsimmons v. Ogden, 7 Cr. 2. But by this is meant a genuine release in terms. For an instrument under seal which purports upon its face to be no accord and satisfaction is no release under seal. Young V. Jones, 64 Me. 563. Sanford, J., says: "The reason given for the rule is, that the cred- itor's agreement is without consider- ation. The rule, however, supposes the part performance of the original obligation, the payment of part at the time and in the manner originally stipulated for the payment of the whole; from which payment of a part rather than the whole, no benefit can accrue to the creditor, and no injury to the debtor." " But when a new duty," he continues, " is undertaken by the debtor which is, or may be burdensome to him or beneficial to the creditor, a new consideration arises out of such undertaking and sustains the agreement of the creditor; as when the debtor undertakes to pay and pays part, at an earlier day, or at another place, or in another arti- cle, than required by the original ob- ligation." Rose V. Hall, 26 Conn. 392. See also Jones v. Bullitt, 2 Litt. (Ky.) 49, where something else in lieu of the debt given was held binding; Swain v. Frazier, 35 N. J. Eq. 326. 6. Downey v. Hicks, 14 How. 240. See Bright. Fed. Dig. "Debtor and Creditor," 244; Barnard v. Graves, 16 Pick. 41; Smith Lead. Cas. Am. cd. 459, n. Whether the check was given and received in absolute dis- charge of the debt depends on the evidence. National Bank v. Levy, 17 R. I. 746. Payment by a worthless check, or on a bank where the debtor has no money, is not payment. Fleig V. Sleet, 43 Ohio St. 53. 1 N. E. 24; 544 CHAP. III.] DEBTS IN GENERAL. § 367 note it is quite different; for a man's note is generally taken not in pa^Tnent but as a postponement of payment until the note falls due; unless, indeed, by indorsement or otherwise, the debtor en- larges the creditor's security. The rule in some States is, that where one indebted gives his note for the debt, the creditor prima facie accepts it in satisfaction and discharge of that debt ; but that this is a presumption of fact only, and may be rebutted.'' Yet by the common-law rule it appears that the note so given would not operate to discharge the original obligation unless such mutual intention affii-matively appear.^ Distinctions of this sort as to presumption are quite fine, and every case doubtless stands upon its own merits after all; the real intention of the parties being, in any event, and under the particular circumstances, open to explanation.^ And, we might add, there is usually an advan- tage to the creditor in taking a debtor's own note in pa}Tnent of a mere debt, since the evidence that so much is actually due is more easily established in case a suit becomes necessary; and it may be presumed to fix the amount actually due.' Where a check for less than the amount due is sent by the debtor as in express satisfaction, and kept and collected by the VVoodburn v. Woodbum, 115 111. 427, 8. See Kimball v. The Anna Kim- 14 N. E. 58. And see Bolton v. Sims, ball, 3 Wall. 37; s. c, 2 ClifiF. 4; 1 138 Ga. 73, 74 S. E. 770; Fowler v. Salk. 124; Downey v. Hicks, 14 How. Bushby, 69 Misc. 891, 125 N. Y. S. 249. The holder of a check or nego- 890. But any creditor, it would ap- tiable instrument, who takes it for » pear, ought as the payor's agent to pre-existing debt, is a holder for value. present a check for payment with Currie v. Miss.. L. R. 10 Ex. l.')3. reasonable diligence, or else bear the 9. See Saloman v. Pioneer Co., 21 loss of the bank's failu^-e. See Peavy Fla. 374; Wiles v. Robinson, 80 Mo. V. Hovey, 16 Neb. 416, 20 N. W. 272. 47; Keel v. Larkin, 72 Ala. 4?3. 7. See Hudson v. Bradley. 2 Cliff. 1. See Bishop v. Welsh, 35 Tnd. 521. 130; Jaffrey V. Cornish, 10 N. H. 505; And .=!ee Merchants' Nat. Bank ▼. Hart V. Boiler, 15 S. . 41 ; McDaniel v. Barnes, 5 Bush. 183 ; Buster v. Holland, 27 W. Va. 510. A creditor receiving money with di- rections to apply part to another creditor's debt cannot keep all to himself. Hall v. Marston, 17 Mass. 575. 550 CHAP. III.] DEBTS IN GENERAL. § 371 as by an express direction; and the same is true likewise of the creditor's assent ; and hence the discretionary power of the court in controversies of this character is never to be arbitrarily exer- cised.^ In justice, if the intent of parties be not clear, the court will therefore apply a payment, where the securities are unequal, to that debt for which the security is the most precarious ; and if one debt is secured but the other is not, to the debt which is not secured.^ Where, again, the debt bears interest, a partial pay- ment will be applied in keeping down the interest rather than by way of extinguishing the principal; and as between an interest- bearing debt and a debt bearing no interest the former should be preferred in appropriation. So should payment be presumably intended of a debt due rather than of one not due ; of earlier items in an account current rather than of later ones ; of a legal debt rather than an illegal debt ; and of a several debt rather than a joint debt.'' Where an appropriation or application of pa.)Tnent has once been made, it cannot be altered without consent of the parties.^ 5. Tayloe v. Sandiford, 7 Wheat. W. 1038 (several notes due) ; Amer- 13. iean Woolen Co. v. Maageb, 86 Conn. Payment of only part of a clear 234, 85 At!. 583. and liquidattKi debt i.s not a satis- 6. Field v. Holland, 6 Cr. 8; Back- faction of the whole per se. Brady liouse v. Patton, 5 Pot. 160; Merri- V. Ins. Co., 180 Mo. App. 214, 167 S. man v. Ward, 7 John. & H. 371. W. 1171; cf. Cunningham v. Irwin, 7. lb.; Wms. Pera. Prop. 115; 183 Mich. 629, 148 N. W. 786; Gol- Bower v. Marriss, 1 Cr. & Phil. 351, owtiz V. Hendlin, 150 N. Y. S. 641 355; McDaniel v. Barnes, 5 Bush, (App. Term, 1915) (receipt in full 183; Spraguo v. Hazenwinkle, 53 111. given) ; Jensen v. Wilslep, 36 Nev. 419; King v. Andrews, 30 Ind. 429; 37, 132 Pac. 16. Hill v. Rol)I)ins, 22 Mich. 475; Taylor As to appropriating payment, see v. Co. Com'rs, 105 Mass. 225; Ham- Cleveland Nat. Bank v. Amos, 37 sey v. Warner, 97 Mass. 8; Leef v. Okla. 674, 133 Pac. 204 (ratification Goodwin, Taney, 460; Howard v of debtor's act) ; J. R. Watkins Fletcher, 59 N. H. 151. Medical Co. v. Hamm, 89 Kan. 138, 8. Sw Bright. Ft>d. Dig. "Debtor 130 Pac. 650; Bondy v. Hardina, 216 and Creditor." 245, 246. But a cr(>d- Mass. 44, 102 N. E. 935; Milwaukw itor's election to appropriate may Store V. Katz, 153 Wis. 492, 140 N. change, so long as his intention has 551 § 371 THE LAW OF PERSONAL PEOPEKTY. [PAKT III. One great difficulty found in all controversies over the appro- priation of a partial payment, is in determining within what time the privilege of election must be exercised by a debtor or creditor. In general, the period allowed is a reasonable time; but such a statement indicates no precise limit; and this only remains cer- tain, that after a controversy has arisen between the parties, the power to appropriate a past payment is gone from both, and the law must determine the appropriation for them.^ not been communicated to the debtor. Simson v. Ingham, 2 B. & C. 65, 6 Gill, 59. Government may apply the partial payments of its defaulting officers with the same reference to its in- terests as a private creditor would. Jones V. United States, 7 How. 681. 9. United States v. Kirkpatrick, 9 Wheat. 720. The subject of payment, and the appropriation of payments, finds in- cidental consideration in vol. ii. post, in connection with the subject of sales. And see Benj. Sales, § 746 et seq. The result as between buyer and seller is substantially as stated here in the text. Presumptions may be overcome by proof of the facts. Thus, where a debtor has directed payment to be applied to the satis- faction of an invalid or even illegal claim, he cannot afterwards require a different appropriation. Hubbell V. Flint, 15 Gray, 550; Dorsey v. Wayman, 6 GUI, 59. Contra, as to illegal claims. Kidder v. Norris, 18 N. H. 532; Bancroft v. Dumas, 21 Vt. 456. By express agreement, part payments may be applicable to in- stalments not yet due. Shaw v. Pratt, 22 Pick. 305. But the creditor alone is not allowed such a discre- tion. Bobe V. Stickney, 36 Ala. 482. A creditor with the right to elect may apply, of course, as a court would have applied, conformably to the text above. See 7 Allen, 270; Saunders v. McCarthy, 8 Allen, 42. See also Plummer v. Erskine, 58 Me. 59*; Mueller v. Wiebracht, 47 Mo. 468; Cardinell v. O'Dowd, 43 Cal. 586. General payments may be ap- plied by a creditor to such debts as are already barred by statutes of limitations or are obnoxious to the Statute of Frauds. Haynes v. Nice, 100 Mass. 327; Ramsay v. Warner, 97 Mass. 8. An agent with a de- mand for himself and also acting for a principal with a demand, must, if he blends the two accounts, apply payment ratably to both demands. Barrett v. Lewis, 2 Pick. 123. And money received under instructions to apply in a particular manner is re- ceived in trust accordingly. Libby V. Hopkins, 104 U. S. 303. And see Ketchum v. St. Louis, 101 U. S- 306. The rule that a debtor may appropriate as he pleases applies only to voluntary payments, not to those made by process of law. Black- stone Bank v. Hill, 10 Pick. 129. Liens are not to be thus OA'erridden. Baldwin v. Flash, 59 Miss. 61. By the Roman law, payment could be made by any one in discharge of 552 CHAP. III.] DEBTS IN GEIs'EKAL. § 372 § 371a. Conditional Payment in a Dispute. In case of a dispute over the amount due, a conditional tender as in full satisfaction cannot be treated as merely a partial one by the creditor; though it would be otherwise with a simple tender of payment.^ And hence payment by check of part only of what the creditor claimed with such special written words as " in full " or their equivalent, requires the creditor who still disputes the true amount to return instead of retaining and cashing it; since in the latter case there would be virtually an accepted accord and satisfaction on his part.^ § 372. Composition or Extension Agreement. It was once thought that the case where a debtor induced a number of his creditors to accept a compromise amounting to less than their respective demands was one of nudum pactum; but the later rule is, as already suggested,^ that if such a compro- mise — or rather a composition agreement — be bond fide entered into, each creditor acting on the faith of the engagement of the others, it will bind them all; since each has the undertaking of the rest as consideration for his own."^ And the same may be the debtor. But as to the common tie Blue School, 110 Mo. 415, 86 Atl. law, qu.; and the inclination appears 838; Rose v. American Co., 43 N. J. to be to the contrary where payment L. 707, 85 Atl. 354. is made by a stranger to the debtor 2. Lapp-GifFord v. Musx?oy Co., 166 without the latter's knowledge. Cook Cal. 25, 134 Pac. 89; Cohn v. Arkin, V. Lister, 13 C. B. n. s. 543 ; Walter 178 111. App. 306 ; Arasler v. MfClure, V. James, L. R. 6 Ex. 724; Benj. 238 Penn. 409, 86 Atl. 294 ; Worcester Sales, § 756. Otherwise, as to ex- Color Co. v. Henry Woods Sons Ca, tinguishment by a third person at 209 Mass. 105, 95 N. E. 392 (cred- the debtor's request. Moran v. Ab- iter's erasure of words) ; Aydlett v. bey, 63 Cal. 56. No one can make Brown, 153 N. C. 334. 69 S. E. 243. another his debtor without the lat- Cf. Jordy v. Maxwell, 62 Fla. 236, 56 ter's express or implied assent. Alton So. 946; Caravia v. Levy, 119 N. Y. V. Mulledy, 21 111. 76; Watkins v. S. 160 (Sup. App. Term, l