T 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 W-A'^S^^""^ 

 
 A TREATISE 
 
 ON THE 
 
 LAW OF NOTICE 
 
 AS 
 
 AFFECTIiXG CIYIL RIGHTS AND EEMEDIES. 
 
 BY 
 
 WILLIAM P. WADE. 
 
 SECOND EDITION. 
 
 CHICAGO: 
 
 callagha:n^ akd company. 
 
 1886.
 
 Entered according to Act of Congress in the year eighteen hundred and eighty-six, by 
 
 W. P. AVADE, 
 in the office of tlie Librarian of Congress, at 'Washington, D. C. 
 
 T 
 
 BAXID ATWOOD, 
 
 Printer axd Stereotyper, 
 
 madison, wis.
 
 <? 
 ^ 
 
 TO 
 
 SEYMOUR D. THOMPSON, ESQ., 
 
 OF THE ST. LOjnS BAK, 
 
 THIS BOOK IS rNSCRIBED IN ACKNOWLEDGMENT OF HIS 
 VALUABLE LABORS AS A 
 
 LEGAL JOURNALIST, CONTRIBUTOR AND AUTHOR, 
 
 AS A TEIBUTB TO HIS WORTH AS A CITIZEN AND A LAWYER, 
 AND ALSO AS A TOKEN OF THE WARM PER- 
 SONAL REGARD ENTERTAINED 
 FOR HIM BY 
 
 THE AUTHOR. 
 
 6.-2 06 i-/
 
 PREFACE TO FIRST EDITION. 
 
 A custom has grown up among authors, especially new 
 authors, of apologizing to the members of the profession for 
 making still another new book. This portion of the cus- 
 tomary preface will be omitted here, because in the first 
 place there seems no one to whom such an apology is due. 
 Those who have no use for a text-book upon the subject of 
 ISToTicE have no right to resent its publication, and those who 
 feel the want of it will require no excuse for an attempt to 
 supply that want. Their , criticism will only be directed to 
 the manner of executing the work. In the second place, 
 the writer had experienced no inconsiderable annoyance 
 and vexation in his own practice, which might have been 
 avoided had there been any work at all upon the subject, 
 and commenced the collection of materials for the follow- 
 ing pages under the belief that such a book was necessary, 
 when there was no prospect of the want being supplied by 
 any one else. Having undertaken the task, influenced b}^ 
 this conviction, apologies for doing so can hardly be in 
 order. For what the book lacks, either in thoroughness or 
 skillfulness of treatment, or in convenience of arrangement, 
 the author is profoundly regretful, and awaits the criticism 
 and candid suggestions of his readers with an abiding faith 
 that they will be in the main just and fair. But he would 
 ask them to consider, particularly with respect to the ar- 
 rangement of topics, that he was Avithout a model or guide 
 which contained a single suggestiopi in this direction. 
 Those upon whom he felt at hberty to call for advice were 
 either too busy to consider the matter with care, or ac- 
 knowledged their inability to make suggestions which were 
 even satisfactory to themselves. Some of the dilHculties in
 
 VI PREFACE TO FIEST EDITIOX. 
 
 the way of an easy solution of this problem were made ap- 
 parent by the oft-repeated interrogatory of those to whom 
 the title of the proposed book was explained — " Notice of 
 Avhat?" In arranging the different chapters and subdivis- 
 ions the intention has been to group the topics according to 
 their relations to each other, and to present all the law 
 upon each without unnecessary repetition. That these 
 purposes have been measurably thwarted will not be a 
 matter of surprise to those who have critically examined 
 many law books. In endeavoring to carry out this plan it 
 was found necessary to travel over a great deal of ground 
 and accumulate no inconsiderable portion of matter with- 
 out regard to the order of arrangement, and when arranged 
 a great deal of what had been written had to be re-written 
 to make it conform to the relative positions of the chapters. 
 After all the Avriter feels bound to confess that the arrange- 
 ment finally determined upon is to some extent arbitrary. 
 Those who examine the Avork will doubtless find many 
 other features where improvements may be suggested. By 
 enlarffinij the volume, useful matter might be added both to 
 tlie text and to the notes. But laboring under the impres- 
 sion that there was a hmit beyond which such a work could 
 not with propriety be extended, many merely cumulative 
 authorities, and those illustrating points of doubtful utility, 
 have been rejected. If the most important, and, in fact, all 
 the more important cases have not been cited, it is for the 
 reason that the author was unable to find them. If any 
 have found their Avay into the table of cases w^hich have 
 not been carefully examined and considered in connection 
 with the doctrine laid down in the text which they are 
 cited to illustrate or confirm, the number is very small in- 
 deed, and their presence is owing to inadvertence, and not 
 to a design on the part of the writer to impose upon the 
 profession doubtful authorit}^ for the mere purpose of swell- 
 ing the list and making a show of great industry. 
 
 There has been an endeavor in the following pages to 
 present as much of the law bearing upon the subject of 
 Notice as could be compressed within what was considered,
 
 PKEFACB TO FIKST EDITION. VII 
 
 in the light of current criticism, a proper space consistent 
 with a fair and reasonable degree of comment and illustra- 
 tion. A glance at the table of contents will show the dif- 
 ferent branches of the law into which the doctrine has 
 found its way, and exerted a distinct influence in determin- 
 ing the conflicting rights of parties litigant. No depart- 
 ment of jurisprudence where notice has been considered 
 essential, either to bind a party or release him from obliga- 
 tion, has been purposely omitted. 
 
 In preparing the book for publication, no model has been 
 followed, for the reason that there was no model to follow, 
 and not because the author desired to make innovations. 
 In one respect, however, there has been an attempt to avoid 
 what in some law books seems to a certain extent a matter 
 of necessity, and in others a most offensive vice — that is, 
 the insertion of aU the explanatory portion of the matter 
 in the notes. The}^ leave nothing but the dry husks of the 
 subject in the text, making up for the baldness of treatment 
 in the author's original composition, by profuse quotation in 
 the notes, so extended and discursive as to weary the eye 
 and puzzle the understanding of the reader. The peculiar 
 nature of a subject may be such as to render this sort of an- 
 notation necessary ; but where the writer of this book has 
 varied from the practice of incorporating in the text all 
 that seemed essential, leaving nothing for the notes but the 
 citation of cases, it was because the matter had been over- 
 looked or was suggested so late as to render its insertion, 
 according to the original plan, impracticable without more 
 labor than the importance of this feature of the work 
 would seem to warrant. Every effort has been made to 
 eliminate all errors and mistakes, and to supply all omis- 
 sions. The book is offered, not in the belief that the task 
 undertaken has been perfectly executed, but in the convic- 
 tion that it contains nothing but good law, and is so ar- 
 ranged, and provided with facilities for reference, as to be 
 of considerable use to an overworked profession. 
 
 W. P. W. 
 
 St. Loms, J% 13, 1878.
 
 PREFACE TO SECOND EDITION. 
 
 In preparing a second edition of this work, I have 
 endeavored to keep in view the suggestions kindly made 
 by many of my professional brethren from time to time, 
 as well as some of the criticisms of the legal press. Un- 
 fortunately, however, some of these, which were carefully 
 noted when fresh, have been lost sight of in consequence 
 of a change of residence, and the loss of notes and mem- 
 oranda made at the time. 
 
 The text has received additions to the extent of about 
 one hundred and thirty pages, and a large number of addi- 
 tional cases have been examined and cited. Some changes 
 have also been made in the division of the matter into 
 chapters ; but with all these changes the original numbers 
 of sections (§§) have been preserved, and added sections 
 are distinguished by the addition of letters. The appear- 
 ance of the book, and possibly its excellence in other 
 respects, might have been enhanced by re-writing and re- 
 numbering many of these sections, and carrying the alter- 
 ations through the entire work ; but this more symmetrical 
 treatment of the subject would scarcely have compensated 
 for the abandonment of the old numbers to which refer- 
 ence has been made where the book has been cited. I 
 have still adhered to the original design, which was to 
 present the law upon aU branches of the subject of Notice 
 in a form best adapted to the wants of the practitioner. 
 It is intended to throw some light upon every case where 
 the rights of parties may turn upon the question whether 
 one or the other has received notice, or in which a ques- 
 tion of notice in any of its multitudinous phases may arise.
 
 X PREFACE TO SECOND EDITION. 
 
 In carrying out this plan in the second edition, I have 
 endeavored to meet the expectations of every one who 
 may resort to these pages, even tentatively, if not in fur- 
 nishing: the kind of law of which he is in search, at least 
 something touching the particular subject of inquiry. 
 
 For the magnanimous and gracious reception accorded 
 by the profession and the press to this my first effort in 
 the Avay of authorship, I wish to return my sincere thanks. 
 I also desire to thank the many individuals from whom I 
 have received personal letters of acknowledgment and 
 valuable suggestions of improvement. 
 
 With the hope that the work has been improved by 
 revision, it is again submitted to the profession. 
 
 W. P. WADE. 
 
 Los Angeles, Cal., March 1, 1886.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 THE DIFFERENT KINDS OF NOTICE. 
 
 PAGE. 
 
 I. Actual Notice, -------1 
 
 II. Consti'uctive Notice, ... - - 27 
 
 CHAPTER II. 
 Notice to Purchasers of Different Kinds op Property, - 36 
 
 CHAPTER HI. 
 
 notice by registration of instruments. 
 
 I. The General Scope and Operation of the Statute, - 69 
 
 II, Recordable Instruments, . . _ . - 80 
 
 III. Statutory Prerequisites to Recording, - - . 84 
 
 IV. Errors in the Record, ------ 93 
 
 V. Errors by the Party Filing the Instrument, - - 106 
 
 VI. Conflicting Titles Affected by Priority of Registration, - 114 
 Vn. Other Notice Considered in Connection with Registration, 133 
 
 CHAPTER IV. 
 Notice by Possession, - - - - - - 150 
 
 CHAPTER V. 
 Notice from Title Papers, ----- 171 
 
 CHAPTER VI. 
 Lis Pendens, - - -- - - - -187
 
 XU CONTENTS. 
 
 CHAPTER VIL 
 
 NOTICE BY WHICH CERTAIN LIABILITIES AKE CREATED. 
 
 PAGE. 
 
 I. Notice of Acceptance of Proposals, - - - - 206 
 
 n. Notice of Guaranty, - - - - - - 210 
 
 m. Notice of Assignment, ------ 234 
 
 IV. Notice to Carriers and Other Bailees, - - - 246 
 V. Notice of Suit in Ejectment to Wai'rantor, - - - 263 
 
 VI. Notice by Which Liabihty for Tort May be Fixed, - 269 
 
 Vn. Notice by Which Certain Contract LiabiUties May be Fixed, 274 
 
 CHAPTER VIII. 
 
 NOTICE BY WHICH LIABILITY IS EXTINGUISHED OR MODIFIED. 
 
 I. Dissolution of Partnership, ----- 280 
 
 II. Notice by Carriers Limiting Their Liability, - - 306 
 
 HI. Landlord and Tenant, - - - - - - 335 
 
 CHAPTER IX 
 
 PRINCIPAL AND AGENT. 
 
 I. Notice of Agency, - - - - - - 365 
 
 n. Notice to an Agent, ------ 380 
 
 ni. Notice by an Agent, - - - - - -401 
 
 CHAPTER X. 
 
 NOTICE OP DISHONOR OF COMMERCIAL PAPER. 
 
 I. By Whom Given, - - - - - - 405 
 
 n. To Whom Given, ------ 417 
 
 m. Time of Giving Notice, - - - - - - 434 
 
 IV. Manner and Mode, ------ 455 
 
 V. Waiver and Excuse, - - - - - - 497 
 
 CHAPTER XI. 
 
 PUBLICATION OF NOTICES. 
 
 I. Original Process, ------- 537 
 
 n. Judicial Sales, ------ 557 
 
 HI. Non-Judicial Involuntary Sales, - - - - 564 
 
 rv. IMiscellaneous Proceedings, - - - - • _ 570
 
 CONTENTS. Xm 
 
 CHAPTER Xn. 
 
 PRACTICE AND PLEADINa. 
 
 ' PAGE. 
 
 I. Original Process, ------- 576 
 
 n. Notice of Trial, 588 
 
 III. Notice of Motions and Other Interlocutory Proceedings, - 596 
 
 rV. Notice of Appeal, 606 
 
 V. Notice of Taking Depositions, - - - - - 613 
 
 VI. Notice to Produce Books and Papers, - - - 630 
 
 Vn. Service, 648 
 
 Vni. The Return, 677 
 
 IX. Pleading, 690 
 
 CHAPTER xm. 
 
 Facts of Which Coubts Take Judicial Notice, - - - 701
 
 TABLE OF CASES CITED. 
 
 A. 
 
 Gerality, 4 Jr. Ch. 23, 
 371, 
 674, 
 150, 
 446, 
 
 Abbot V. 
 
 §30. 
 Abell V. Han-is, 11 GUI & J, 
 §280. 
 V. Howe, 43 Vt. 403, §§ 
 688, 689. 
 Abrahams v. Stokes, 39 Cal. 
 
 § 1209. 
 Abranis v. Sheehan, 40 Md. 
 
 §96. 
 Acer V. Westcott, 1 Lans. 193; S. 
 
 C. 46 N. Y. 384, § 329. 
 Adams' Appeal, 1 Pa. St. 447, § 96. 
 Adams v. Darby, 28 Mo., 163, 
 § 1009. 
 V. Jones, 12 Pet. 207, § 407. 
 V. Leavery, 20 Conn. 72, § 436. 
 V. Otterback, 15 How. 539, 
 
 § 480o. 
 V. Peck, 4 la. 551, §1242. 
 V. Rodermel, 19 Ind. 339, § 431. 
 V. Torbet, 6 Ala. 865, § 738. 
 V. Wright, 14 Wis. 408, §§ 788, 
 789, 856, 859. 
 Adamis Ex. Co. v. Guthrie, 9 Bush, 
 78, §§ 553, 555. 
 V. Haynes, 42 Dl. 89, §§ 553, 
 
 555 
 V. Loeb", 7 Bush, 501, § 553. 
 V. Stattaners, 61 111. 184, § 555. 
 Addison v. Cox, L. R. 8 Ch. 79, 
 
 8 433. 
 Adm'rs of Carson v. Phelps, 40 Md. 
 
 97, § 225. 
 Adriance v. Hafkemeyer, 39 Mo. 
 134, § 606. 
 V. McCafferty, 2 Rob. 153, 
 § 1054. 
 Agra Bank v. Barry, L. R. 7 H. L. 
 
 135, § 109. 
 Aguirre v. Parmelee, 22 Conn. 473, 
 
 §464. 
 Aicardi v. Strang, 38 Ala. 326, 
 § 1253. 
 
 Aickles' Case, 1 Leach Cr, Cas. 330. 
 
 § 1262. 
 Aiken v. Thompson, 43 la. 606, 
 
 §481. 
 Ainsley v. Boynton, 2 Barb. 258, 
 
 §431. 
 Airey v. Pearson, 37 Mo. 424, § 937. 
 Alabama, etc. R. Co. v. Kidd, 35 
 
 Ala. 209, § 568. 
 Alabama Gold Life Ins. Co. v. Cobb, 
 
 57 Ala. 547, § 1410. 
 Alderson v. Ames, 6 Md. 52, §§ 113, 
 254. 
 V. BeU, 9 Cal. 315, § 1413. 
 V. Pope, 1 Camp. 404, § 525. 
 Aldricks v. Higgins, 16 S. & R. 212, 
 
 § 405. 
 Alexander v. Alexander, 5 Pa. St. 
 277, § 1232. 
 V. Burnham, 18 Wis. 199, 
 
 § 1412. 
 V. Milwaukee, 16 Wis. 247, 
 
 § 1404. 
 V. Qaigley's Ex'rs, 2 Duv. (Ky.) 
 
 339, § 1143. 
 V. Webster, 6 Md. 359, § 113. 
 Alford V. State, 8 Tex. App. 545, 
 
 § 1412. 
 Allday v. Great West. R'y Co. 11 
 
 Jur. N. S. 12, § 560. 
 Allegheny v. Nelson, 25 Pa. St. 332, 
 
 § 1408. 
 Allen, In re, 1 Ir. R. Eq. 455, § 246. 
 Allen V. Anthony, 1 Meriv. 282, 
 §§ 65a, 281, 282. 
 V. Avery, 47 Me. 287, § 815. 
 V. Edmunson, 17 L. J. N. S. 
 Exch. of PI. 291 ; 2 Exch. 
 719, § 1397. 
 V. Hill, 16 Cal. 113, § 1324. 
 V. Holding, 29 Ga. 485, § 225. 
 V. Hubert, 49 Pa. St. 259, § 422. 
 V. Jaquish, 21 Wend. 628, § 596. 
 V. Knight, 5 Hare, 272, §§ 47, 
 
 48, 65a. 
 V. MandvUle, 26 Miss. 397, § 348.
 
 XVI 
 
 TABLE OF CASES CITED. 
 
 Allen V. Mercier, 1 Ash. 103, § 464. 
 V. Moss, 27 Mo. 354, §§ 127, 
 
 211. 
 V. Ogden, 1 Wash. C. Ct. 174, 
 
 § 663. 
 V. Pike, 3 Cush. 238, § 388. 
 V. Pool, 54 Miss. 323, §§ 65a, 
 
 307, 348, 674. 
 V. Rightmere, 20 Johns. 365, 
 
 §§ 394, 396. 
 V. Sanders, 2 Bibb, 94. § 48. 
 V. SchaiTinghausen, 8 Mo. App. 
 
 229. § 1410. 
 V. Seckham, L. R. 11 Ch. D. 
 790, § 65a. 
 Aliens Lessee v. Parish, 3 Ohio, 107, 
 
 §225. 
 Allman v. Owen, 31 Ala. 167, 
 
 ^ 1415. 
 Alvis V. MoiTison, 63 111. 181, § 157. 
 Alvord V. Collin, 20 Pick. 418, 
 
 § 1109. 
 American Ex. Co. v. Bank, 69 Pa. 
 
 St. 394, § 558. 
 Ames V. N. Y. Union Ins. Co. 14 N. 
 
 Y. 253, §8 672, 689. 
 Amidown v. Osgood, 24 Vt. 278, 
 
 §§ 486, 515, 522. 
 Amoskeag Bank v. Moore, 37 N. H. 
 
 539, § 1023. 
 Amsbaugh v. Gearhart, 11 Pa. St. 
 
 482, § 422. 
 Anchor Line v. Dater, 68 HI. 369, 
 
 §555. 
 Anderson r. Anderson, 23 Tex. 639, 
 § 1405.% 
 V. Applegate, 13 Ind. 339, 
 
 § 1257. 
 V. Baughman, 6 Mich. 298, 
 
 § 1331. 
 V. Biddle, 9 Mo. 580, § 1405. 
 V. Blakely, 2 W. & S. 237, 
 
 §405. 
 V. Brown, 16 Tex., 554, § 1152. 
 V. Cape Fear, etc. Co. 64 N. C. 
 
 399, 8 480fc. 
 V. Prindle, 23 Wend. 616, 
 
 §§ 611, 613. 
 V. Van Allen, 13 Johns. 343, 
 §440. 
 Andrews v. Boyd, 3 Mete. 434, 
 §942. 
 V. Burns, 11 Ala. 691, § 96. 
 V. Gillespie, 47 N. Y. 487, § 431. 
 V. Kneeland, 6 Cow. 354, § 652. 
 V. McCoy, 8 Ala. 920, § 431. 
 r. O. & M. R. R. Co. 14 Ind. 
 
 169, § 1132. 
 V. Pond, 13 Pet. 65, § 94. 
 
 Angle V. N. W. etc. Ins. Co. 92 U, 
 
 S. 341, § 94. 
 Anketel v. Converse, 17 Ohio St. 
 
 11, § 256. 
 Anon. 1 Nott & McC. 604, § 1257. 
 Anonymous, 1 Johns. 143, § 1178. 
 Apperson v. Bynum, 5 Cold. 341, 
 § 982. 
 V. Union Bank, 4 Cold. 445, 
 § 987. 
 Arbouin v. Anderson, 1 Ad. & EU. 
 
 498. § 80. 
 Argenti v. San Francisco, 16 Cal. 
 
 255, § 1123. 
 Armijo v. New Mexico, etc. Co. 5 
 
 West Coast Rep. 482, § 97. 
 Arnold v. Dinsmore, 3 Cold. 235, 
 § 1091. 
 V. Dresser, 8 AUen, 435, § 957. 
 V. Nye, 23 Mich. 286, § 1235. 
 Ashley v. BaiUee, 2 Ves. Sr. 368, 
 §688. 
 V. Cunningham. 16 Ark. 168, 
 § 359. 
 Ashley's Adm'x v. Martin, 50 Ala. 
 
 537,"^ §1411. 
 Ashmore v. Steam Tow & Trans. 
 
 Co. 28 N. J. L. 180, § 558. 
 Ashton V. Bayai-d, 71 Pa. St. 139, 
 
 §§ 386, 421. 
 Assignees v. Bright, 20 Mo. 298, 
 
 §431. 
 Astor V. Wells, 4 Wheat. 466. 
 
 §§ 192, 193, 672. 
 Atcheson, etc. R. Co. v. Black- 
 shire, 10 Kan. 477, § 1408. 
 Atkinson, In re, 2 De G. M. & G. 
 
 140, § 433. 
 Atkinson v. Runnels, 60 Me. 440, 
 § 431. 
 V. Taylor, 2 Wilson, K. B. 117, 
 §'1159. 
 Atlantic Tel. Co. v. New Orleans 
 & C. R. Co. 2 Cent. L. J. 88, 
 § 1308. 
 Atterbury v. Wallis, 8 De G. M. & 
 
 G. 454, §§ 47, 56, 672, 689. 
 Attorney-General v. Flint, 4 Hare, 
 "147, § 46. 
 V. Foote, 11 Wis. 14, § 1404. 
 V. Jones, 2 Jur. 369, § 30. 
 V. Pargeter, 6 Beav. 150, § 660. 
 Atwater v. Schenck, 9 Wis. 160, 
 
 § 1404. 
 Atwell V. MiUer, 6 Md. 10, § 1287. 
 At wood V. Fricot, 17 Cal. 37, §§ 1234, 
 1251. 
 V. Hazleton, 3 Bailey (S. C), 
 457, § 738.
 
 TABLE OF CASES CITED. 
 
 xvu 
 
 Atwood V. Munning, 7 B. & C. 278, 
 § 664.. 
 V. The Reliance Co. 9 Watts, 
 
 87, § 541. 
 
 Aubuchon v. Bender, 44 Mo. 560, 
 
 §226. 
 Aucher v. Bank of England, Doug. 
 
 637, § 438. 
 Auditor v. Hay croft, 14 Bush, 284, 
 
 § 1404. 
 Auger Steel, etc. Co. v. Whittier, 
 
 117 Mass. 451, § 1257. 
 Avdt V. Gassaway, 18 Cal. 205, 
 
 §874. 
 Avent V. McCorkle, 45 Miss. 221, 
 
 §230. 
 AveriU v. Hedge, 12 Conn. 424, 
 
 §383. 
 Avery V. "VVoodbeck, 5 Lans. (N. Y.) 
 
 498, § 1212. 
 Ayer v. Hutchins, 4 Mass. 870, § 90. 
 Ayers v. Duprey, 27 Tex. 593, § 228. 
 Aymar tK Sheldon, 12 Wend. 439, 
 
 §822. 
 Aymer v. Beers, 7 Cow. 705, § 992. 
 Ayrault v. Chamberlin, 26 Barb. 
 
 88, § 493. 
 
 V. Murphy, 54 N. Y. 203, § 341. 
 
 B. 
 
 B. & M. L. R'y Co. v. Unity, 62 :Me. 
 
 148, § 378. 
 Babcock v. Bridges, 29 Barb. 427, 
 §149. 
 V. Bryant, 12 Pick. 133, §§ 389, 
 
 401, 413. 425. 
 V. Lisk, 57 111. 327, § 310. 
 Bachelor v. Bachelor, 1 Mass. 256, 
 
 § 1102. 
 Backhouse v. Harrison, 5 Barn. & 
 
 Aid. 1098, §§ 80, 82. 
 Backus V. Shipherd, 11 Wend. 629, 
 
 §936. 
 Bacon v. Bacon, Tothill, 133, § 807. 
 V. Gardner, 23 Miss. 60, g 348. 
 Bagge, Ex parte, 13 Beav. 162, 
 
 § 676. 
 Bailey v. Benslev, 87 111. 556, § 480o. 
 V. Clark, 6 Pick. 372, § 525. 
 V. Kalamazoo, etc. Co. 40 Mich. 
 
 251, § 1417. 
 V. McGinness, 57 Mo. 862, 
 
 §§ 343, .848. 
 V. Myrick, 50 Me. 171, §§ 191, 
 
 1065. 
 V. Richardson, 15 Eng. L. & 
 
 Eq. 218, § 278. 
 V. White, 13 Tex, 114, § 273. 
 
 BaUey v. Wright, 24 Ark. 78, §§ 1243, 
 
 1821. 
 Bainbridge v. Moss, 2 Jur. N. S. 58, 
 
 §30. 
 Baker v. Barney, 8 Johns. 72. § 671. 
 V. Bliss, 39 N. Y. 70, §§ 10, 65a, 
 
 279. 
 V. Brinson, 9 Rich. 201, § 558. 
 V. Griffin, 50 Miss. 158, § 205. 
 V. Hall, 15 la. 277, § 72. 
 V. Martin, 8 Barb. 634, § 480m. 
 V. Mather, 25 iHch. 51, § 310. 
 V. Mygatt, 14 la. 131, § 1414, 
 V. Rand, 13 Barb. 152, § 402. 
 V. Robinson, 63 N. C. 191, § 87. 
 V. Wales, 14 Abb. Pr. 831 ; 45 
 
 How. Pr. 137, § 1858. 
 V. Woodward, 5 W, Coast Rep. 
 186, g 231a. 
 Baldney v. Ritchie, 1 Stark. 388, 
 
 § 1272. 
 Baldwin v. Cassella, L. R. 7 Ex. 325. 
 §§ 480fc, 695. 
 V. Jolmson, Saxt. Ch, 441, 
 
 § 273. 
 V. Love, 2 J. J. Marsh. 489, 
 
 § 369. 
 V. Richardson, 1 B. & C. 245, 
 
 §990. 
 V. Smith, 82 111. 162, § iSOh. 
 Ball V. Greaud, 14 La. An. 305, 
 
 §938. 
 Ballard v. Burgett, 40 N. Y. 314, 
 
 §73. 
 Balling v. Carter, 9 Ala. 921, § 371. 
 ^alhtt V. Musgrave, 3 Can-. & Kir. 
 
 31, § 1138. 
 Baltunore v. Bouldm, 28 Mi 828, 
 § 1127. 
 V. State, 15 Md. 876, § 1417. 
 Baltimore, etc. R. Co. r. Sherman, 
 30 Gratt. 602, § 1411. 
 V. Skeels, 3 W. Va. 556, § 553. 
 Banco de Lima v. Anglo-Peruvian 
 Bank, L. R. 8 Ch. D. 160, § 674. 
 Bancroft v. Cousen, 18 Allen, 50, 
 § 208. 
 V. Hall, 1 Holt, 476, §§ 828, 
 889. 
 Bander v. Covill, 4 Cow. 60, g§ 1177, 
 
 1178. 
 Bank v. Amnion, 27 Pa. St. 172, 
 
 V. Dill, 5 Hill, 408, § 954. 
 V. Fordyce, 9 Pa. St. 275, § 431. 
 r. Grimshaw, 15 La. 321, § 711. 
 V. King, 14 N. J. L. 45, § 821. 
 V. Wapples, 4 Har. (Del.) 429, 
 §939,
 
 XV 111 
 
 TABLE OF CASES CITED. 
 
 Bank of Alexandria i\ Swann, 9 
 
 Pet. 33, §g 805, 807, 823. 
 Bank of America v. McNeil, 10 
 
 Bush, 54, 5^,^ 675, 6836. 
 Bank of Aiij;usta v. Earl, 13 Pet. 
 
 588, S§ 1302, 1306. 
 Bank of Br<joklvn v. McChesney, 
 
 20 N. Y. 240, ^^ 491, 508. 
 Bank of Cape Fear v. Seawell, 2 
 
 Hawks (N. C), 560, § 714. 
 Bank of Chenango v. Hyde, 4 
 Cow. 567, f 94&. 
 V. Root, 4 Cow. 126, § 759. 
 Bank of Columbia v. Fitzhugh, 1 
 Har. & G. 239, § 480o. 
 V. Lawi-ence, 1 Pet. 578, §§ 877, 
 883. 
 Bank of Commonwealth v. Mud- 
 gett, 45 Barb. 663; S. C. 44 N. Y. 
 514, § 509. 
 Bank of Geneva v. Howlett, 4 
 
 Wend. 323, § 883. 
 Bank of Greensboro v. Clapp, 76 
 
 N. C. 482, § 113. 
 Bank of Ireland v. Beresford, 6 
 
 Dow. 237, § 94a. 
 Bank of Kentucky v. Adams Ex. 
 
 Co. 93 U. S. 174, § 554. 
 Bank of Louisville v. Curren, 36 
 
 la. 555, § 29. 
 Bank of Manchester v. Slason, . 13 
 
 Vt. 334, g 901. 
 Bank of New ]\Iilford v. Town of 
 New Milford, 36 Conn. 93, 
 §§ 672, 675, 683. 
 Bank of Niagara v., McCracken, 18 
 
 Johns. 493, § 431. 
 Bank of Orleans v. Flagg, 3 Barb. 
 
 Ch. 316, §55 65a, 273. 
 Bank of Pittsbm-gh v. Neal, 22 
 How. 96, § 80. 
 V. Wlaitehead, 10 Watts, 397, 
 gg 683a, 6836. 
 Bank of Seaford v. Connoway, 4 
 
 Houst. 206. § 999. 
 Bank of South Carolina v. Meyers, 
 
 1 Bailey, 412, § 943. 
 Bank of State of Missouri v. 
 
 Vaughn. 36 Mo. 90, §§ 697, 714. 
 Bank of State v. S. C. Manf. Co. 
 
 3 Sti-obh. 190, § 101. 
 Bank of St. Marys v. Mumford, 6 
 
 Ga. 44, § 6836. 
 Bank of United States v. Bierne, 1 
 Gratt. 234, § 757. 
 V. Corcoran, 2 Pet. 121, § 843. 
 V. Davis, 2 Hill, 451, §§ 33, 672, 
 
 681, 682, 683a, 690. 
 V. Goddard, 5 Mason, 366, § 709. 
 
 Bank of United States r. Hatch, 1 
 McLean, 90; 6 Pet. 250, 
 § 857. 
 V. Leathers, 10 B. Mon. 64, 
 §957. 
 Bank of Utica v. Bender, 21 Wend. 
 643, § 921. 
 V. Davidson, 5 Wend. 587, 
 
 §922. 
 V. Mersereau, 3 Barb. Ch. 528, 
 
 §216. 
 V. Phillips, 3 Wend. 408, § 922. 
 V. Smith, 18 Johns. 230, §§ 715, 
 929. 
 Bank of Virginia v. Craig, 6 Leigh, 
 
 399, § 6836. 
 Bank of Washington v. Triplett, 1 
 
 Pet. 25, § 480o. 
 Bank of West Tennessee v. Davis, 
 
 5 Heisk. 436, § 865. 
 Banks v. Banks, 31 lU. 162, § 1342. 
 V. Burnham, 61 Mo. 76, § 1414. 
 Barbaries v. Gregory, 64 Cal. 230, 
 
 § 1193. 
 Barbai-oux v. Waters, 3 Met. (Ky.) 
 
 304, § 997. 
 Barbour Co. v. Horn, 48 Ala. 649, 
 §480gr. 
 V. Nichols, 3 R. I. 187, § 208. 
 Barclay, Ex parte, 7 Ves. 597, 
 
 §702. 
 Barclay v. Weaver, 19 Pa. St. 396, 
 
 §939. 
 Bardsley v. Hines, 33 la. 157, 
 
 §§ 1032, 1053. 
 Bargate v. Shorti-idge, 5 H. L. Cas. 
 
 297, § 676. 
 Barker v. Foy, 43 Miss. 260, § 10. 
 V. Parker, 6 Pick. 80, § 939. 
 V. Scudder, 56 Mo. 272, § 420. 
 Barlow v. Meyers, 64 N. Y. 41, 
 §431. 
 V. Wainwright, 23 Vt. 88, 
 §§ 578, 586. 
 Barnard v. Campau, 29 Mich. 162, 
 §149. 
 V. Wheeler, 24 Me, 412, § 665. 
 Barnes v. McCUnton, 3 Pa. 67, 
 §§ 7, 30, 31, 250, 673a, 685. 
 V. Reynolds, 4 How. (Miss.) 
 
 114, § 767. 
 V. Ti-enton Gas Light Co. 27 N. 
 J. Eq. 33, §§ 6836, 689. 
 Barnet v. Bamet, 15 S. & R. 72, 
 
 § 127. 
 Bainey v. Cunier, 1 D. Chap. 315. 
 §59. 
 V. Douglass, 19 Vt. 98, § 436. 
 V. Grover, 28 Vt. 391, § 431.
 
 TABLE OF CASES CITED. 
 
 XIX 
 
 Barney t\ Little, 15 la. 527, § 166. 
 
 v/McCarty, 15 la. 510, § 167. 
 Barnhart v. Greenshields, 9 Moo. 
 P. C. 18 ; 28 Eng. L. & Eq. 77, 
 g§ 7, 281, 284, 294. 
 Barradaile v. Lowe, 4 Taunt. 93, 
 
 § 959. 
 Barret v. Evans, 28 Mo. 331, §§ 876, 
 
 915. 
 Barrett v. Chai'leston Bank, 2 
 McMullen, 191, g 943. 
 V. Pritchard. 2 Pick. 512, §§ 72, 
 
 75. 
 V. Smith, 4 W. Va. 709, § 1194. 
 Barr v. Mitcliell, 7 Oreg. 346, {i 87. 
 BaiTon V. Eidredge, 100 Mass. 455, 
 § 566. 
 V. Porter, 44 Vt. 587, § 436. 
 Barrows v. Bauglunan, 9 Mich. 213, 
 
 Barr's Trusts, l7i re, 4 K. & J. 219, 
 
 §433. 
 Bany v. Croskey, 2 J. & H. 21, 
 §§ 7, 35. 
 V. Morse, 3 K H. 132, g 939. 
 Bartlett v. Glasscock. 4 Mo. 62, § 30. 
 V. Hawlev, 120 Mass. 92, § 794. 
 V. Isbell, 31 Conn. 296. g 716. 
 t\ Pearson, 29 Me. 9. ^^ 436, 443. 
 V. Robinson. 39 N. Y. 187, § 928. 
 Barton v. Baker, 1 S. & R. 334, 
 gg I7QO 943 
 
 V. Kane, 17 Wis. 37, § 1287. 
 Bashford v. Shaw, 4 Ohio St. 263, 
 
 § 420. 
 Baskeville v. Harris, 41 Miss. 535, 
 
 §957. 
 Basset v. City of St. Joseph. 53 Mo. 
 
 290 ; 14 Am. Ren. 446, § 4805r. 
 Bassettr. Salisbury Co. 28 N. H. 
 
 438. § 1280. 
 Batchelor v. Priest, 12 Pick. 399, 
 
 §§ 697, 706, 707. 
 Bateman v. Joseph, 2 Camp. 461, 
 
 §990. 
 Bates V. Norcross, 14 Pick. 224. 
 
 §§ 205, 207, 223. 
 Bath V. Montague's Case, 3 Ch. 
 
 Cas. 110, § 15. 
 Battle V. Eddy, 31 Tex. 368, § 1152. 
 Battv V. McCundie, 3 Car. & P. 202, 
 
 § 525. 
 Batuit V. Hartley, L. R. 7 Q. B. 594, 
 
 §471. 
 Baxter v. Clark, 4 Ired. 127, § 525. 
 Bay u. Coddington, 5 Johns. Ch. 54; 
 
 S. C. 20 Johns. 637, § 6G6. 
 Bayer v. Cockerill, 3 Kan. 283, 
 
 §369. 
 
 Bayley x\ Bailey, 5 Gray, 505, § 06. 
 Bayliffe v. Butter worth, 1 Exch. 
 
 425, § 480o. 
 Bayly v. Chubb, 10 Gratt. 284, 
 
 § 1404. 
 Baynard ?'. Harrity, 1 Houst. 200, 
 § 480Z. 
 V. Norris, 5 Gill, 468, §§ 65a, 
 273. ♦ 
 
 Bay State Bank v. Kiley, 14 Grav, 
 
 492, § 609. 
 Bazemore v. Davis, 55 Ga. 504, 
 
 §§ 207, 310. 
 Beach v. Bay State, etc. Co. SO 
 Barb. 433, § 1405. 
 V. Workman, 20 N. H. 370, 
 § 1417. 
 Beadles v. Miller, 9 Bush, 405, 
 
 §24. 
 Beal V. Gordon, 55 Me. 482, § 277. 
 V. Warren, 2 Gray, 447, § 226. 
 Beals V. Allen, 18 Johns. 363, §652. 
 V. Peck, 13 Barb. 245, §§ 765, 
 768. 
 Bean v. Briggs, 4 la. 464, § 1405. 
 V. Green, 12 Me. 422. § 547. 
 V. Simpson, 16 Me. 49, § 440. 
 Beard v. Beard, 21 Ind. 321, §§ 1083, 
 1142. 
 V. Kirk, 11 N. H. 397. § 671. 
 Beardslee v. Horton, 3 ]\Iich. 560, 
 
 § 94a. 
 Bear River & Auburn, etc. Co. x\ 
 
 Boles, 24Cal. 354, §1198. 
 Beasley v. Downey, 10 Ixed. 284, 
 
 § 1241. 
 Beatie v. Butler, 21 Mo. 313, §§ 275, 
 
 282, 284. 
 Beavan v. Earl of Oxford, 6 De G. 
 
 M. & G. 493, § 240. 
 Bebee v. Brooks, 12 Cal. 308, § 738. 
 V. Moore, 3 McLean, 387, § 1388. 
 Beck V. De Baptists, 4 Leigh, 349, 
 §101. 
 V. Evans, 16 East. 244, § 560. 
 Becket v. Cardlev, 1 Bro. Ch. 353, 
 
 §§ 8, 13. 
 Beckman v. Shouse, 5 Rawle, 179, 
 
 §541. 
 Beckwith v. Smith, 23 Me. 125, 
 §§ 805, 937. 
 V. Union Bank, 9 N. Y. 211, 
 §436. 
 Bedford v. McElherron, 3 S. & R. 
 
 49, §§ 581, 588. 
 Beebe v. Dudley, 26 N. H. 249, 
 
 §§ 390, 426. 
 Beekman v. Frost, 18 Johns. 544, 
 §§ 149, 158.
 
 XX 
 
 TABLE OF CASES CITED. 
 
 Beekman v. Hale, 17 Johns. 134, 
 
 4^8 391. 393. 
 Beers v. Hawlev, 3 Conn. 467, § 113. 
 Besrley v. Chose, 4 Daly (N. Y.), 
 
 157, § 1212. 
 Belger v. Dinsmore, 51 N. Y. 166, 
 
 S 554. 
 Bell V. Burnett, 2 J. J. Marsh. 516, 
 -♦ § 1417. 
 V. Fleming, 12 N. J. Eq. 13, 
 
 § 182. 
 V. Hagerstown Bank, 7 Gill, 
 
 21G, ^ 873. 
 V. Hall. 2 Dev. 288, § 983. 
 V. Kellor, 18 B. Mon. 381, § 407. 
 V. ]\foss, 5 Whart. 189, gtj 457, 
 
 463, 480. 
 V. State Bank, 7 Blackf. 456, 
 
 8 876. 
 V. Twilight. 22 N. H. 500, 
 ^§ 290, 297, 316. 322. 
 Bellamy v. Sabine, 1 De G. & J. 566, 
 
 §^ 338, 356, 360. 
 Bellas r. Lloyd, 2 Watts, 401, §§ 308, 
 318 
 V. McCarty, 10 Watts, 13, §§ 30, 
 113. 
 Bellgerry r. Branch, 19 Gratt. 393, 
 
 § 983. 
 Belmont Branch Bank v. Hodge, 
 35 N. Y. 65, § 80. 
 V. Morrill, 69 Me. 314, § 1404. 
 Bemis v. McKenzie, 13 Fla. 557, 
 
 §738. 
 Ben Adams, The. 2 Ben. 445, § 577o. 
 Bend r. Weitze. 12 Wis. 611, § 94a. 
 Bendy v. Boyce, 37 Tex. 443, 
 
 §^ 1152, 1365. 
 Benham v. Keau, 2 De G. F. & J. 
 
 318, § 231. 
 Bennett v. Buchan, 61 N. Y. 222, 
 § 65a. 
 V. Hetherington, 41 la. 142, 
 
 g 1073. 
 V. Jenkins, 13 Johns. 50, §480e. 
 V. North British, etc. Ins. Co. 
 
 8 Dalv. 471, § 1416. 
 V. Waller;; 23 HI. 97, § 143a. 
 V. Williams, 5 Ohio, 461, § 348. 
 Bensley v. Mountain Lake Water 
 
 Co. 13 Cal. 306. g 374. 
 Bercaw v. Cockerill, 20 Ohio St. 
 
 163, § 225. 
 Berdoe v. Dawson, 34 Beav. 603, 
 
 §29. 
 Berkley v. Lamb, 8 Neb. 399, 
 
 §96. 
 Berkshire Bank v. Jones, 6 Mass. 
 524, § 936. 
 
 Berkshire, etc. Co. v. Proctor, 7 
 
 Cush. 417, § 480o. 
 Berresford i'. Geddes, Law Rei). 3 
 
 C. P. 285, 1 1170. 
 Berridge v. Fitzgerald, 4 Q. B. 639, 
 
 §867. 
 
 Berry v. Cooper, 28 Ga. 543. § .158. 
 
 V. Robinson, 9 Johns. 121. § 738. 
 
 V. Southern Bank of Ky., 2 
 
 Dev. 379, § 983. 
 
 Berson r. Neman, 63 Cal. 550, § 97. 
 
 Bertram v. Cook, 33 Mich. 518, 
 
 §316. 
 Bessozzi v. Harris, 1 F. & F. 92, 
 
 § 480t. 
 Best V. Hoppie, 3 Colo. 139, § 87. 
 V. Osborn, 1 Carr. & P. 632, 
 § 1274. 
 Betser r. Ranken. 77 Bl. 289, § 119. 
 Bevan v. Lord Oxford, 6 De G. M. 
 
 & G. 492, § 434. 
 Bevens v. Baxter. 23 Ark. 387, 
 
 § 1404. 
 Beverly v. Ellis, 1 Rand. 102, § 101. 
 Beymer v. Bonsall, 79 Pa. St. 298, 
 
 §671. 
 Bickerdike v. Bollman, 1 T. R. 405, 
 
 § 1001. 
 Bickford v. Gibbs, 8 Cush. 154, 
 
 §427. 
 Bierce v. Red Bluff Hotel Co. 31 
 
 Cal. 160, §§ 674. 077. 
 Bilbie v. J^umlev. 2 East, 469, § 975. 
 Biles V. Stanton, 69 111. 51, § 1161. 
 Billingsley v. Dean, 11 Ind. 331, 
 
 § 1405. 
 Billington v. Welsh, 5 Binn. 129, 
 
 § 293. 
 Bingamore v. Hyatt, 1 Sm. & M. 
 
 Ch. 437, § 8. 
 Bingham v. Rogers, 6 W. & S. 495, 
 
 §§ 541, 558. 
 Birbeck v. Tucker, 2 Hall (N. Y. 
 
 City), .121, § 1273. 
 Bircli V. Ellames. 2 Anst. 427, § 56. 
 Bird V. Brown, 4 Exch. 786; 14 Jur. 
 132, §§ 401, 464. 480. 
 V. Dennis, 7 Cal. 297, § 97. 
 V. Le Blanc, 6 La. An. 470, 
 
 § 935. 
 V. Wilkenson, 4 Leigh, 266, 
 § 101. 
 BirdsaU t". Heacock (Sup. Ct. 
 Com'rs O.), 18 Am. L. Rec. 
 751, § 391. 
 V. Russell, 20 N. Y. 220. § 46. 
 Birkett v. AVillau, 2 B. & Aid. 356. 
 
 § 558. 
 Buks V. Trippet, 1 Saund. 83, § 393.
 
 TABLE OF CASES CITED. 
 
 XXI 
 
 Bimie v. ]\Iain, 29 Ark. 591, § 203. 
 Bisco V. Earl of Banbury, 1 Ch, 
 
 Cas. 287, § 307. 
 Bishop V. A Copyholder, Freem. Ch. 
 137, g 18. 
 V. Dexter. 2 Conn. 419, § 738. 
 V. Garcia, 14 Abb. Pi-. 69, §431. 
 V. Ilalcomb, 10 Conn. 444, 
 
 8 436. 
 V. Jones, 28 Tex. 294, § 1411. 
 V. O'Connell. 56 Mo. 159, § 67. 
 V. Schneider, 46 Mo. 472, §§ 133, 
 
 165. 
 V. State, 30 Ala. 34, § 1412. 
 Bishop of Winchester v.'Paine, 11 
 Ves. Ch. 194; 1 Ch. Cas. 150, 
 §§ 344, 346. 
 Bissell V. Irwin, 13 La. 143, § 480c. 
 Bixby i\ Smith, 49 How. Pr. 50 ; 5 
 Thomp. & C. 281, § 1038. 
 V. Warden, 40 How. Pr. 239, 
 g 1213. 
 Blackman v. Leonard, 15 La. An. 
 
 59, § 794. 
 Blackhani v. Doren, 2 Camp. 503, 
 
 §§ 1004, 1015. 
 Blair v. Compton, 33 Mich. 414, 
 § 1097. 
 V. W^ard, 10 N. J. Eq. 119, 
 §203. 
 BlaisdeU v. Stevens, 16 Vt. 179, 
 
 §,§ 10, 11, 21. 
 Blake v. Bigelow, 5 Ga. 437, §§ 342a, 
 353. 
 V. Graham, 6 Ohio St. 580, 
 §?; 205, 206, 223. 
 Blanchard v. Page, 8 Gray, 281, 
 §472. 
 V. Ware. 43 la. 530, §§ 339, 
 342a. 
 Blankensliip v. Douglass, 26 Tex. 
 225, § 288. 
 V. Rogers, 10 Ind. 838, § 1006. 
 Blatchley v. Osborn, 33 Conn. 226, 
 
 §g 3, 17, 30, 53. 
 Bleeker v. Hyde, 8 McLean, 279, 
 
 § 394. 
 Blenden v. Charles, 7 Bing. 246, 
 
 § 480??i. 
 Bliven v. New Eng. Screw Co. 23 
 
 How. 420, § 48071. 
 Blood V. Blood, 23 Pick. 80, §§ 112, 
 
 125. 
 Bloom V. Noggle, 4 Ohio St. 45, 
 
 §§ 225, 231a. 
 Bloomer v. Henderson, 8 IVIich. 395, 
 
 §299. 
 Blossom V. Griffin, 13 N. Y. 569, 
 §557. 
 
 Blum r. Bidwell, 20 La. An. 43, 
 
 §957. 
 Blumenburg v. Myers, 32 Cal. 93, 
 
 § 585. 
 Blumenthal v. Brainard, 38 Vt. 402, 
 
 §§ 508, 570, 674, 688. 
 Boardman v. Gore, 15 Mass. 331, 
 
 §525. 
 Board of Com'rs v. Babcock, 5 Or. 
 472, § 165. 
 V. Spitler, 13 Ind. 235, § 1410. 
 Boatright v. Porter, 32 Ga. 130, 
 
 g 1269. 
 Bobb V. Woodward, 42 Mo. 482, 
 
 §§ 1031, 1056. 
 Bodenham v. Bennett, 4 Price, 31, 
 
 §g 558, 560. 
 Boehm v. Combe, 2 M. & S. 172, 
 
 §532. 
 Bogan V. Wilhams, 8 Younge & J. 
 
 150, § 13. 
 Bogy V. Keil, 1 Mo. 743, § 1017. 
 Boggs V. Anderson, 50 Me. 161, 
 §277. 
 V. Black, 1 Binn. 333, § 649. 
 v. Varner, 6 Watts & S. 469, 
 §§ 29. 46, 119, 263, 278, 288, 
 294, 315, 316, 322. 
 Bogne V. Williams, 48 111. 371, 
 
 §g 273, 279, 288. 
 Bolilen v. Cleveland, 5 Mason, 174, 
 
 § 436. 
 Bohn V. Devlin, 28 Mo. 319, § 1229. 
 Bohr V. Steamboat Baton Rouge, 7 
 
 Sm. & M. 715, § 1242. 
 Bolard v. Mason, 66 Pa. St. 138, 
 
 § 1362. 
 BoUes V. Chauncey, 8 Conn. 389, 
 
 § 208. 
 Bolhn V. Connelly, 73 Pa. St. 336, 
 
 §343. 
 Bolton V. Lane. & York R'y Co. L. 
 
 R. 1 C. P. 431 ; 35 L. J. C. P. 137, 
 
 § 466. 
 
 Bond V. Farnham, 5 Mass. 170, 
 
 §§ 732, 943. 
 
 V. WHson, 8 Kan. 228, § 1379. 
 
 V. Whitfield, 28 Ga. 537, § 1335. 
 
 Bondurant v. Everett, 1 Met. (Ky.) 
 
 658, § 876. 
 Bonner v. Ware, 10 Ohio, 465, § 311. 
 Boon V. Pierpont, 28 N. J. Eq. 7, 
 
 §185. 
 Boorman v. Ex. Co. 21 Wis. 153, 
 
 §553. 
 Boot V. Franklin, 3 Johns. 207, 
 
 § 1396. 
 Booth V. Barnum, 9 Conn. 286, 
 
 §11.
 
 xxu 
 
 TACLK OF CASKS CITED. 
 
 Borden r. Clark, 26 Mich. 410, 
 § 94a. 
 V. State, 11 Ark. 519, 8 1160. 
 Borroscale v. Tuttle, 5 Allen, 377, 
 
 §339. 
 Bossard v. White, 9 Rich. Eq. 483, 
 
 §;i 119, 121. 
 Boston V. State, 5 Tex. App. 383, 
 
 § 1410. 
 Bostwick V. Powers, 12 la. 456, 
 §§ 97, 168. 
 V. Railroad, 45 N. Y. 712, 8 557. 
 Botsford V. O'Connor, 57 111. 72, 
 
 § 1367. 
 Boulden v. Lanahan, 29 Md. 200, 
 
 §239. 
 Boulleraent v. State, 28 Ala. 83, 
 
 § 1417. 
 Boursot V. Savage, L. R. 2 Eq. 184, 
 
 §672. 
 Bovey v. Smith, 1 Ver. 60, § 63. 
 Bowles V. Round, 5 Ves. 508, § 600. 
 Bowling V. Arthur, 34 Miss. 41, 
 
 V. Harrison, 6 How. 248, §§ 844, 
 847, 875. 
 Bowman v. Lee, 48 Mo. 335, § 231. 
 V. Van Kuren, 29 Wis. 218, 
 
 §94a. 
 V. Wettig, 39 HI. 416, § 1260. 
 Boyce v. Shiver, 3 S. C. 515, § 101. 
 Boyd V. Beck, 29 Ala. 703, ^ 231. 
 V. City Savings Bank, 15 Gratt. 
 
 501, §§ 764, 844, 926. 
 V. Cleveland, 4 Pick. 524, S 941. 
 V. Graham, 5 Mo. App. 403, 
 
 § 480?i. 
 V. McCann, 10 Md. 118, § 504. 
 V. Orton, 16 Wis. 495, § 764. 
 V. Schlesmger, 59 N. Y. 301. 
 
 §123. 
 V. W^hitfield, 19 Ark. 447, 
 §§ 480c, 480Z. 
 Boynton v. Bodwell, 113 Mass. 531, 
 §§ 631, 647. 
 V. Clinton & Essex Ins. Co. 16 
 Barb. 254, § 447. 
 Bozon V. Williams, 3 Younge & J. 
 
 150, § 47. 
 Brable v. Hollywell, 1 Croke, 250, 
 
 § 1387. 
 Bracken v. Miller, 4 W. «fe S, 102, 
 
 §^ 672, 674, 688. 
 Brackett V. Rich, 23 Minn. 485, 
 
 §418. 
 Bradford V. Corey, 5 Barb. 461, 
 
 § 1025. 
 Bradley v. Covel, 4 Cow, 349, § 591. 
 V. Davis, 2(6 Me. 45, §§ 829, 836. 
 
 Bradley v. Hardin, 73 Ala. 70. 
 § 1405. 
 V. McDariicl, 3 Jones, 128, § ;343. 
 V. Riches, L. R. 9 Ch, D. 189, 
 
 §§ 56, 690. 
 V. Snvder, 14 lU. 263, §§ 273, 
 
 278, 288. 
 V. Wheeler, 44 N. Y. 500, g480;i. 
 Bradshawr, May field, 18 Tex. 21, 
 
 § 1411. 
 Brady v. Page, 59 Cal. 52, § 1410. 
 Bragg V. Bangor, 51 Me. 532, §4805r. 
 V. Paulk, 42 Me. 502, § 316. 
 V. Rush Co. 34 Ind. 400, § 1409. 
 Brahn v. Jersey City Forge Co, 38 
 
 N. J. L. 74, §^ 620, 698, 701. 
 Brailsford v. Williams, 15 Md, 150, 
 
 §710. 
 Braley v. Buchanan, 21 Kan. 555, 
 § 735. 
 V. Seaman, 30 Cal. 610, § 1036, 
 Braman v. Wilkinson, 3 Barb. 151, 
 
 § 373. 
 Branch Bank v. Gafney, 9 Ala. 153, 
 §7:38. 
 V. Steele, 10 Ala. 915, §§ 683, 
 6836. 
 Brandao v. Barnett, 12 C. & F, 787, 
 
 § 14U4. 
 Brandt v. Klein, 17 Johns, 335, 
 
 § 1272. 
 Brashear v. West, 7 Pet. 608, § 431. 
 Bratton's Appeal, 8Pa. St. 164, §96. 
 Bray v. Gunn, 53 Ga. 144, § 668. 
 V. Hadwen, 5 M. & S, 68, 
 §§ 796, 824. 
 Breed v. Conley, 14 la. 269, § 167, 
 V. Hillliouse, 7 Conn. 523, 
 §§ 394, 418, 956, 969. 
 Bretz V. Mayor, etc. of N. Y, 6 
 
 Rob. (N. Y.) 325, § 1404. 
 Brewer v. Springfield, 97 Mass, 152, 
 
 § 1079, 
 Brice v. Brice, 5 Barb, 533, § 65a. 
 Bridge v. Beadon, L. R, 3 Eq, 664, 
 
 §§ 7, 35, 443. 
 Bridgeport Ins. Co, v. Wilson, 34 
 
 N. Y. 275, § 480Z. 
 Bridges v. Arnold, 37 la. 221, § 1383. 
 Briffitt V. State, 58 Wis. 39; 46 Am. 
 
 Rep. 621, § 1416. 
 Briggs V. Boyd, 37 Vt. 538, § 94b. 
 V. Green, 33 Vt. 565, § 1221. 
 V. Jones, L. R. 10 Eq. 92, § 6.j(r 
 V. Palmer, 20 Barb. 392. § 310. 
 V. Sneghan, 45 Ind. 14, §§ ll.')'.i, 
 
 1161. 
 I'. Taylor, 28 Vt. 180, §§ 11, 60a. 
 Bright V. Young, 15 Ala. 112, § 128U.
 
 TABLE OF CASES CITED. 
 
 XXlll 
 
 Brighton Market Bank v. Philbrick, 
 
 40 N. H. 506, § 990. 
 Bright's Trusts, Re, 21 Beav. 430, 
 
 §35. 
 Brindley v. BaiT, 3 Han-. (Del.) 419, 
 
 g§ 846, 873. 
 Brinkman v. Jones. 44 Wis. 498, 
 
 §§ 10, 11, 244, 246. 
 Brinton v. Seevers, 12 la. 389, § 112. 
 Brisban v. Boyrl, 4 Paige, 17, § 383. 
 Bristol V. Sprague, 8 Wend. 423, 
 
 §519. 
 Bristow V. Secqueville, 5 Exch. 275 ; 
 
 19 L. J. Ex. 289, § 1405. 
 Britton's Appeal, 45 Pa. St. 172, 
 
 §§ 227, 231a, 238. 
 Broadbent v. Barlow, 3 De G. V. & 
 
 G. 570, §§ 10, 56, 65a. 
 Broad Street Hotel v. Weaver, 57 
 
 Ala. 26, § 1408. 
 Brock V. Heade)!, 13 Ala. 370, § 205. 
 Bronson v. Coffin, 118 Mass. 156, 
 § 662. 
 V. Kensey, 3 McLean, 180, 
 § 1257. 
 Brooke v. Pickwick, 5 Bing. 218, 
 
 §544. 
 Brooklyn Trust Co. v. Bulmer, 49 
 
 N. Y. 84, § 1352. 
 Brooks' Appeal, 64 Pa. St. 127, § 96. 
 Brooks V. Blanev, 62 Me. 456, § 838. 
 
 V. Hey, 23 Hun, 372, § 94&. 
 Brotherton v. Hatt, 3 Vern. 574, 
 §§ 687, 690. 
 V. Livingston, 3 W. & S. 334, 
 §183. 
 Broughton v. Journeay, 51 Pa. St. 
 
 31, § 1107. 
 Brower v. Brooks, 11 Barb. 423, 
 
 § 1192. 
 Brown v. Andover, 1 Hon. 193, 
 §44. 
 Bankers', etc. Co. 30 Md. 
 39, § 674. 
 V. Brooks, 25 Pa. St. 210, § 421. 
 V. Budd, 2 Ind. 442, § 119. 
 V. Clark, 28 Vt. 690, § 1414. 
 V. Clement, 68 111. 192, § 1251. 
 V. Dean, 3 Wend. 208, § 187. 
 V. Eastern R. R. Co. 11 Cush. 
 
 97, § 543. 
 V. Ford, 52 Me. 479, § 1244. 
 V. Fui-guson, 4 Leigh, 37, § 797. 
 V. Gaffney, 28 HI. 149, §§ 273, 
 
 276. 
 V. Goodwin, 75 N. Y. 409, 
 
 §§ 351. 354. 
 V. Grand Trunk R. R. Co. 54 
 N. H. 535, § 555. 
 
 Brown v. Leonard, 2 Cliit. 120, 
 §§ 483, 486, 524. 
 V. Lunt, 37 Me. 423, §§ 112, 
 
 136. 
 V. Maflfey, 15 East, 216, §§ 1004, 
 
 1010. 
 V. Patton, 3 Humph. (Tenn.) 
 
 135, § 671. 
 V. Piper, 91 U. S. 37, § 1417. 
 V. Savage, 4 Drew, 635, § 437. 
 V. Simons, 44 N. H. 475, § 310. 
 V. Simpson, 4 Kan. 76, §§ 127, 
 
 128. 
 V. State, 8 Heisk. (Tenn.) 871, 
 
 §§ 1195, 1203. 
 V. Taylor, 13 Vt. 637, § 480c. 
 V. Turner, 15 Ala. (N. S.) 832, 
 
 §§ 751, 754. 
 V. Volkenniug, 64 N. Y. 76, 
 
 §§ 279. 288, 290, 291. 
 V. WeUs, 44 Ga. 573, § 3. 
 Brownfield v.- Dyer, 7 Bush, 505, 
 
 §§ 1343, 1344. 
 Browning v. Kin near, Gow. 81, 
 §990. 
 V. Paige, 7 How. Pr. 487, § 1179. 
 Brown's Trust, In re, L. R. 5 Eq. 
 
 88, § 433. 
 Bruce v. Cloutman, 45 N. H. 37, 
 
 § 1138. 
 Bruen v. Bruen, 43 111. 408, § 1201. 
 Brundage v. Biggs, 25 Ohio St. 652, 
 
 §339. 
 Brune v. Thompson, 2 Q. B. 789 ; 2 
 
 G. &D. 110, §1410. 
 Brush V. Halloway, 2 J. J. Marsh. 
 180, § 65a. 
 V. Scribner, 11 Conn. 388, § 80. 
 V. Ware, 15 Pet. 93; S. C. 1 
 McLean, 533, § 311. 
 Brushaben v. Stigemann, 22 Mich. 
 
 199, § 1168. 
 Bryant v. Booze, 55 Ga. 438, §§ 52, 
 55, 65. 
 V. Merchants' Bank of Ken- 
 tucky, 8 Bush, 43, § 936. 
 V. Moore, 26 Me. 84, § 658. 
 Brydolf v. W^olf, 32 la. 509, § 1338. 
 Brydon v. Campbell, 40 Md. 331, 
 
 §§ 140, 149. 
 
 Bryne v. Roberts, 31 la. 319, § 1041. 
 
 Buchanan v. Curry, 19 Johns. 137, 
 
 § 748. 
 
 V. Findlay, 9 B. & C. 738, § 946. 
 
 V. Iiiternational Bank, 78 111. 
 
 500, 4< 208. 
 V. MarshaU, 32 Vt. 561, § 936. 
 Buck V. Paine, 50 Miss. 648, §§ 10, 
 30, 65a, 279.
 
 XXIV 
 
 TABLE OF CASES CITED. 
 
 Buckinsjham v. Hanna, 2 Ohio St. 
 '551, §214. 
 V. Smith, 10 Ohio, 228, g 44. 
 Buckinghouse v. Gregg, 19 Ind. 
 
 401, gi5 1409, 1411. 
 Buckley r. Fui-niss, 15 Wend. 137, 
 § 464. 
 V. Garrett, 47 Pa. St. 204, § 448. 
 V. Lewis, 20 Wis. 490, § 1180. 
 Buckman i\ Levi, 3 Camp. 414, 
 
 i^i^ 453, 454. 
 Buckmaster v. Needham, 22 Vt. 
 
 G17, S 290. 
 Buckner v. Jones, 1 Mo. App. 538, 
 
 §§ 88, 90. 
 
 Buel V. Warner, 33 Vt. 570, § 1404. 
 
 Buell V. State, 72 Ind. 523, § 1413. 
 
 Buffalo Pipe Line Co. v. N. Y. etc. 
 
 R. Co. 10 Abb. N. C. 107, j^ 1410. 
 
 Buffalo Steam Engine Works v. Sun 
 
 Mutual Ins. Co. 17 N. Y. 401, 
 
 ^446. 
 
 Buford V. Hickman, 1 Hempst. 
 
 233, § 1412. 
 Building Association v. Wilson, 41 
 
 Md. 514, § 101. 
 Bull V. Bliss, 30 Vt. 127, § 426. 
 Bundy v. Hyde, 50 N. H. 116, 
 
 § 1232. 
 Bunker v. Gilmore, 40 Me. 88, § 434. 
 Bunting v. Ricks, 2 Dev. & Bat. 
 
 Ell. 130, §g 30, 65. 
 Burbank v. Dyer, 54 Ind. 239, § 583. 
 Burbridge v. Manners, 3 Camp. 
 
 193, § 782. 
 Burch V. Carter, 44 Ala. 115, §§ 307, 
 
 322. 
 
 Burdett v. Abot. 5 Dow. 165, g 1404. 
 
 V. Colman, 14 East, 163, § 1404. 
 
 V. Lewis, 7 C. B. (N. S.) 791, 
 
 § 1337. 
 
 Burdine v. Grand Lodge of Ala. 
 
 37 Ala. 478, § 1417. 
 Burgess v. Vreeland, 24 N. J. L. 
 
 71, § 805. 
 Burgh V. Legge, 5 M. & W. 418, 
 
 § 1397. 
 Burk V. Barnard, 4 Johns. 309, 
 § 1159. 
 V. Milteuberger, 19 WaU. 519, 
 § 1404. 
 Burkai-t v. Bucher, 2 Binn. 455, 
 
 ^312. 
 Burke v. McKay, 2 How. 66, §§ 697, 
 
 715. 
 Burkhalter v. Ector, 25 Ga. 55, 
 
 §225. 
 Bulling V. Read, 11 Q. B. 904, 
 §480/i. 
 
 Burmestcr v. Barron, 17 Ad. & Ell, 
 
 828, § 926. 
 Burnel v. Wood. 2 Roll. 22, § 1390. 
 Bm-uett V. Hendei-son, 28 Tex. 588, 
 § 1412. 
 V. Lynch, 5 B. & C. 28, § 1278. 
 Burnham v. Chandler, 15 Tex. 441, 
 §120. 
 V. Gallentine, 11 Ind. 295, 
 
 §§ 420, 422. 
 V. Webster, 17 Me. 50, § 936. 
 Buron v. Deuman, 2 Exch. 167, 
 
 § 069. 
 Bun-el V. North, 2 Carr. & K. 680, 
 
 §§ 453, 455, 532. 
 Bm-rough v. Moss, 10 B. & C. 558, 
 
 §728. 
 Bm-rows v. Hannegan, 1 McLean, 
 309, § 891. 
 V. Locke. 10 Ves. 470, §S 7, 35. 
 Burrus v. Boulliac, 2 Bush, 39, 
 
 § 325. 
 Burt V. Cassety, 12 Ala. 734, §§ 65a, 
 
 273. 
 Burton V. Shotwell, 6 Cent. L. J. 
 31, §§ 299, 378. 
 V. Wolf, 4 Harr. (Del.) 221, 
 § 1097. 
 Bm'well t». MandeviUe, 2 How. 
 560, § 496. 
 V. Springheld, 15 Ala. 273, §528. 
 Bm well's Ex'rs v. Fauber, 21 Gratt. 
 
 446, § 307. 
 Busey v. Reese, 38 Md. 264, § 96. 
 Bush V. Bush, 2 Duv. (Kv.) 269, 
 § 1158. 
 V. Garner, 73 Ala. 162, S 1405. 
 V. Golden, 17 Conn. 594, §§ 114, 
 
 191, 281, 294, 
 V. Lathrop, 22 N. Y. 535, § 436. 
 V. Ware, 15 Pet. 93, § 65a. 
 Bushell V. Bushell, 1 Sch. & L. 90, 
 
 §§ 104, 107. 
 Bussard v. Levermg, 6 Wheat. 102, 
 
 §§ 781, 844. 
 Bussey v. Leavitt, 12 Me. 378, 
 
 §§ 1108, 1114. 
 Butcher v. Brownsville, 2 Kan. 70, 
 § 1405. 
 V. Yocum, 61 Pa. St. 168, § 28. 
 Butler V. Duval, 4 Yerg. 265, §§ 709, 
 735. 
 V. Heane, 2 Camp. 415, § 540. 
 V. IMitchcll, 17 Wis. 52. § 1198. 
 V. Robinson, 75 Mo. 192. ^ 1408. 
 V. Stevens, 26 Me. 484, §§ 7, 29, 
 277. 
 Buttrick v. Holden, 13 Met. 355, 
 §§ 10, 29, 35, 65a, 279.
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 Byers v. Engle, 16 Ark. 543, § 96. 
 Byles V. Tome, 39 Md. 461, § 101. 
 Byrne v. Roberts, 31 la. 319, § 1041. 
 
 c. 
 
 Cabeen v. Breckem-idge, 48 lU. 91, 
 S§ 246. 273. 276, 288. 
 V. Campbell, 30 Pa. St. 254, 
 §g 464, 468. 
 Cabot Bank v. Eussell, 4 Gray, 167, 
 §903. 
 V. Warner, 10 Allen, 522, §§ 786, 
 830, 842. 
 Cady V. Hough, 20 111. 43. § 1286. 
 Cahoon V. Morgan, 38 Vt. 234, §438. 
 Cahuzac v. Samini, 29 Ala. 288, 
 
 §391. 
 Calahan v. Babcock, 21 Ohio St. 
 
 281, § 464. 
 Calais Steamboat Co. v. Van Pelt, 
 
 2 Black, 372, §§ 651. 653. 
 Calder i\ Chapman, 52 Pa. St. 359, 
 
 §§ 149, 206, 215. 
 Calderwood v. Brooks, 28 Cal. 151, 
 
 § 1202. 
 Caldwell v. Head, 17 Mo. 561, §§ 219, 
 222. 
 V. McVicar, 9 Ark. 418, § 1253. 
 Calisher v. Forbes, L. R. 7 Ch. 109, 
 
 §433. 
 Call V. Hastings, 3 Cal. 179, § 97. 
 Calvin v. Bowman, 16 la. 529, § 168. 
 Camb. & Amb. Railw. v. Baldauf, 
 16 Pa. St. 67, §§ 545, 553, 
 554, 558. 
 V. Belknap, 21 Wend. 354, 
 §§ 552, 553. 
 Cambridge Valley Bank v. Delano, 
 
 48 N. Y. 326, § 17. 
 Camden v. Guild, 4 Cal. 250, § 1405. 
 Cameron v. Blackman, 39 Mich. 
 
 108, § 1417. 
 Camp V. Bates, 11 Conn. 488, § 1397. 
 V. Steamboat Co. 43 Conn. 333, 
 g 553_ 
 
 Campbell v. Baker, 46 Pa. St. 243, 
 8 432. 
 V. Brackenridge, 8 Blackf. 471, 
 
 §296. 
 
 V. Hastings, 29 Ai-k. 512, § 657. 
 
 V. PettengiU, 7 Me. 126, § 1004. 
 
 V. Roach, 45 Ala. 667, §§ 307, 
 
 328. 
 
 Canefox v. Crenshaw, 24 Mo. 199, 
 
 § 480i. 
 Caney v. Patton, 2 Aslim. (Pa.) 140, 
 §671. 
 
 Caney v. Silverthorn, 9 Cal. 67, 
 
 §§ 1202, 1329. 
 Cahfield v. Hard, 6 Conn. 180, 
 
 §496. 
 Cannon i\ Franklin, 4 Root, 500, 
 
 §155. 
 Canton v. City of Portland, 4 Oreg. 
 
 339, § 10. 
 Cardwell v. Allen, 33 Gratt. 157. 
 
 § 736. 
 Carey r. Butler, lllnd. 391, § 1159. 
 tn Cincinnati, etc. R. Co. 5 la. 
 357, § 1405. 
 Carland v. Cunningham, 37 Pa. 
 
 St. 228, §§ 1257, 1258. 
 Carlisle v. Tuttle, 3 Ala. 613, § 1236. 
 Cai-lton V. Patterson, 29 N. H. 580, 
 
 § 1247. 
 Carmena v. Bank of La. 28 N. H. 
 
 302, § 794. 
 Carmichael v. Greer, 55 Ga. 116, 
 
 § 530, 
 Carolina Nat'l Bank v. Wallace, 13 
 
 S. C. 347, § 768. 
 Carpenter v. Dexter, 8 Wall. 513, 
 § 1405. 
 V. Oaks, 10 Rich. 17, § 87. 
 V. Remolds, 42 Miss. 807, § 934. 
 V. Spooner, 2 Sandf . 717, § 1358. 
 V. United States, 6 Ct. CI. 156 ; 
 17 Wall. 489, § 593. 
 Carpentier v. Thurston, 30 Cal. 123, 
 
 § 1329. 
 Carr r. Callagau, 3 Littell, 365, 
 
 §355. 
 Carrington v. Brent, 1 McLean, 167 ; 
 S. C. 9 Pet. 86, § 354. 
 V. Stimson, 1 Curtis C. Ct. 437, 
 § 1246. 
 Carson v. Dalton, 59 Tex. 500, 
 § 1410. 
 V. Smith, 5 Minn. 78, § 1406. 
 Carter v. Boelim, 3 Buit. 1905, 
 § 280n. 
 V. Burley, 9 N. H. 558, §§ 795, 
 
 805, 815. 
 V. Champion, 8 Conn. 548, 
 
 §§ 112, 138. 
 V. Carter, 2 K. & J. 617, § 48. 
 V. Daizy, 42 Miss. 501, § 1375. 
 V. Flower, 16 M. & W. 743, 
 
 § 1017. 
 V. Mills, 30 Mo. 432, § 357. 
 V. Pratt, 9 Md. 73. § 1414. 
 Cartmell's Case, 9 Ch. App. 691, 
 
 § 676. 
 Case V. Erwin, 18 Mich. 434, § 307. 
 V. Hannahs. 2 Kan. 490, § 1143. 
 V. Mobile, 30 Ala. 538, § 1404.
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 Cash V. Auditor, 7 Ind. 227, § 1410. 
 Cass V. BeUows, 31 N. H. 501, 
 
 § 1103. 
 Cass Co. V. Green, G., Mo. 498, §§88, 
 
 93. 
 Cassidav v. McKenzie, 4 W. & S. 
 
 283, §671. 
 Caswell V. Wendell, 4 Mass. 523, 
 
 § 480c. 
 Cater v. McDaniel, 21 N. H. 231, 
 
 § 1222. 
 Cates V. Winter, 3 T. R. 306, §§ 1257, 
 
 1290. 
 Cathay v. Svdeuliam, 2 Bro. Ch. 
 
 391, § 10. 
 Catskill Bank v. Stall, 15 Wend. 
 
 364, § 920. 
 Cavagnaro v. Don, 63 Cal. 227, § 21, 
 Cavender v. GuUd, 4 Cal. 250, 
 
 § 1405. 
 Cavucra Bank v. DiU, 5 Hill. 403, 
 
 § 954. 
 CajTiga County Bank v. Bennett, 
 ' 5HU1,23G, § 702. 
 V. Hunt, 2 Hill, 635, § 788. 
 Center v. P. & M. Bank, 22 Ala. 
 
 743, §§ 10, 342a. 
 Central Bank v. Allen, 16 Me. 41, 
 § 1281. 
 V. Davis, 19 Pick. 373, § 955. 
 Central R'y Co. of Venezuela v. 
 Kisch, 2 L. R. App. Ca. 112, § 7. 
 Centi-al Savings Bank v. Shine, 48 
 
 Mo. 456, § 399. 
 Chadwick v. Turner, L. R. 10 Ch. 
 8 ; 1 Ch. App. Cas. 310, §§ 108, 
 217, 231. 
 Chaffee v. M. C. & N. W. R. Co. 64 
 
 Mo. 193, §g 87, 956. 
 Chamberlain v. Bell, 7 Cal. 292, 
 §97. 
 V. Donahue, 44 Vt. 57, ^ 604. 
 V. Dow, 10 Mich. 319, § 490. 
 V. Faris, 1 Mo. 517, § 1084. 
 V. Godfrey, 36 Vt. 380, § 480Z. 
 V. Preble, 11 Allen, 370, §§ 480c, 
 480e. 
 Chambers v. King Wrought Iron 
 
 Bridge Co. 16 Kan. 270, § 1310. 
 Champlin v, Laytin, 6 Paige, 189, 
 
 § 322. 
 
 Chandler v. Fulton, 10 Tex. 2. § 480. 
 
 V. Grieves, 2 H. Bl. 606, § 1404. 
 
 V. Mason. 2 Vt. 193, § 1028. 
 
 V. Spear, 23 Vt. 388. § 1117. 
 
 Chapcott V. Curlewis, 2 Moody & 
 
 Rob. 484, § 915. 
 Chapman v. Annett, 1 Carr. & Ku-. 
 553, § 967. 
 
 Chapman v. Colbv, 47 Mich. 46, 
 § 1405. 
 V. Holmes, 10 N. J. L. 20, § 480f. 
 V. Keane. 3 Ad. & El. 193, 
 
 §§ 097, 703, 706. 
 V. Lijiscombe, 1 Johns. 294, 
 
 § 990. 
 V. Sims, 53 Miss. 154, § 316. 
 V. West, 17 N. Y. 125, §^ 341, 
 342a, 351. 
 Chapman Township v. Herrold, 58 
 
 Pa. St. 106. § 1412. 
 Charlotte v. Chouteau, 25 Mo. 465, 
 
 § 1405. 
 Chase V. Hogan, 6 Bosw. 431, § 1330. 
 V. Sycamore & C. P. R. R. Co. 
 38 111. 215. § 1387. 
 Chatham v. Bradford, 50 Ga. 827, 
 
 § 165. 
 Chaudron v. Magee, 8 Ala. 570, 
 
 §g 348, 362. 
 Cheeseborough v. Millard, 1 Johns. 
 
 Ch. 409, § 203. 
 Cherry v. Baker, 17 Md. 75, §§ 1251. 
 
 1414. 
 Cheshu-e v. Taylor, 29 la. 492, § 956. 
 Chesterman v. Gardner, 5 Johns. 
 
 Ch. 29, § 273. 
 Chew V. Barnet, 11 S. & R. 389, 
 § 231. 
 V. Calvert, Walk. 54, § 308. 
 Chicago V. Laugless, 66 111. 361, 
 § 480g. 
 V. McCarthy, 75 lU. 602, S480(/. 
 V. Witt, 75 'lU. 211, §§ 29, 206, 
 210. 
 Chicago & Alton R. R. Co. v. Scott, 
 
 42 Bl. 132, §§ 566, 572. 
 Chicago, etc. R. Co. v. Bensley, 69 
 111. 630, § 568. 
 V. Klauber, 9 lU. App. 613, 
 
 § 1409. 
 V. McCool, 20 Ind. 140, § 566. 
 Chicago, R. I. & P. R. Co. v. Ken- 
 nedy, 70 111. 350, § 307. 
 Chicago & R. I. R. Co. v. Warren, 
 
 16 111. 502, § 574. 
 Chicago T. P. P. Co. v. Lowell, 60 
 
 Cal. 454, § 306. 
 Chick V. Pillsbury, 24 Me. 458, 
 
 §§ 794, 805, 810, 822. 
 Chickering v. Failes, 26 El. 507, 
 § 1354. 
 V. Fowler, 4 Pick. 371, § 563. 
 Childs V. Nelson, 7 Dana, 381, § 383. 
 
 V. Wyman, 44 Me. 433, § 87. 
 Cliittenden v. Hobbs, 9 la. 417, 
 
 g^ 1343, 1346, 1363. 
 Choteau v. Jones, 11 lU. 300, § 196.
 
 TABLE OF CASES CITED. 
 
 XXVll 
 
 Chouteau v. Pierre, 9 Mo. 3, § 1405. 
 Christmas v. Mitchell, 3 Ired. Eq. 
 
 535, §§ 15. 308, 335. 
 Christy v. Home, 24 Mo. 242, 
 
 § 1281. 
 Church V. Barlow, 9 Pick. 547, 
 § 715. 
 V. Gilmore, 1 Wood, 656, § 143a, 
 Churcher v. Guernsey, 39 Pa. St. 
 
 84, § 29. 
 Churchill v. Grove, 1 Ch. Cas. 35, 
 
 g§ 240, 375. 
 Cicero, etc. Co. v. Craighead, 28 
 
 Ind. 274, g 1417. 
 Cincinnati v. Bickett, 26 Ohio St. 
 
 49, §§ 715, 1036. 
 Cincinnati, etc. R. Co. v. Pontius, 
 
 19 Ohio St. 221, §§ 555, 558. 
 Citizens' Bank v. GrafHin, 31 Md. 
 
 507, § 480w. 
 City Bank v. Cutter, 3 Pick. 514, 
 
 § 1397. 
 City Council v. Montgomery, etc. 
 Co. 31 Ala. 76, § 1410. 
 V. Page. 1 Speers' Eq. 159, § 7. 
 City N. B. V. Goodi-ich, 3 Colo. 137, 
 
 § 87. 
 Citv Paying for Openmg Streets, 
 
 20 La. An. 497, § 1123. • 
 Clabaugh v. Byerly, 7 Gill, 354, 
 
 § 208. 
 Clafflin V. Lenheim, 66 K Y. 301, 
 
 §671. 
 Claflin V. Rosenberg, 43 Mo. 439, 
 
 §67. 
 Claggett V. Crall, 12 Kan. 393, § 96. 
 Claiborne v. Hdhnes, 51 Mss. 146, 
 
 §§ 225, 303. 
 Glamorgan v. Lane, 9 Mo. 446, 
 
 §§ 254, 255. 
 Clapp V. Rogers, 12 N. Y. 283, § 512. 
 Claridge v. Dalton, 4 M. & S. 226, 
 
 § 1008. 
 
 Clare v. The State, 5 la. 286, § 1404. 
 
 Clai-k V. Adams, 33 Mich. 159, 
 
 §§ 1355, 1395. 
 
 V. Baker. 11 Mete. 188, § ASOn. 
 
 V. Bosworth, 51 Me. 528, § 277. 
 
 V, Commonwealth, 29 Pa. St. 
 
 129, § 1412. 
 V. Drake. 63 Mo. 354, § 25. 
 V. Faxton. 21 Wend. 153, § 552. 
 V. FuUer, 39 Conn. 238, § 679. 
 V. Helms. 1 Root. 486, § 348. 
 V. Keliher, 107 Mass. 406, g 640. 
 V. Lichtenberg, 33 Mich. 307, 
 
 § 1320. 
 V. Remington, 11 Met. 361, 
 §389. 
 
 Clark V. Thayer, 105 Mass. 216, 
 §94&. 
 V. Trindle, 52 Pa. St. 492, 
 
 §246. 
 V. Wells, 45 Vt. 4, §§ 72, 74. 
 Clai-ke V. Courtney, 5 Pet. 319, 
 §280. 
 V. Crego, 47 Barb. 599, § 598. 
 V. Morey, 10 Johns. 69, § 753, 
 V. Shavpe, 3 M. & W. 166, 
 §926. 
 Clarkson v. Morgan, 6 B. Mon. 441, 
 
 §364. 
 Claudet v. Pruice, 2 Q. B. 406, 
 
 § 1173. 
 Clay V. Edgerton, 19 Ohio St. 549, 
 §§ 420, 422. 
 V. Wi'llan, 1 H. Blackst. 298, 
 § 542. 
 Claybrook v. Wade, 7 Coldw, 
 
 (tenn.) 555, § 1030. 
 Clavcomb v. Munger, 51 111. 378, 
 
 §'480c. 
 Claypole v. Houston, 12 Kan. 324, 
 
 § 1035. 
 
 Clayton v. Blakev, 8 T. R. 3, § 586. 
 
 V. Hunt, 3 Camp. 27, § 539. 
 
 V. Mav, 67 Ga. 769, § 1410. 
 
 Clegg V. Cotton, 3 Bos. & Pul. 239, 
 
 §^ 946, 947. 
 Clement v. Brooks, 13 N, H, 92, 
 
 § 1229. 
 Clements v. Welles, L. R. 1 Eq. 200, 
 
 §§ 15, 65a, 288, 307. 
 Clerks' Savings Bank v. Thomas, 3 
 
 Mo. App. 3"67, §§ 388, 662, 683. 
 Cleveland, etc. R. Co. v. CuiTan, 
 
 19 Ohio St. 1, § 558. 
 Cleviuger v. Hill, 4 Bibb, 498, 
 
 §§ 348, 357. 
 Clifton V. United States, 4 How. 
 
 242, § 1280. 
 Clode V. Bayley, 12 M. & W. 51, 
 
 §§ 717, 735. 
 Clodfelter v. Cox, 1 Sneed, 330, 
 
 §§ 433, 435, 436. 
 Clore V. Graham, 64 Mo. 249, 
 
 §49. 
 Clough V. Hoffman, 5 Wend. 499, 
 
 § 1387. 
 Clymer's Lessee v. Dawkins, 3 
 
 How. 690, § 280. 
 Cobb V. Stokes, 8 East, 358, §§581, 
 595 
 V. Wood, 32 Me. 455, § 1138. 
 Cobbett V. Brock, 20 Beav. 524, 
 
 §29. 
 Co'bden v. Bolton, 3 Camp. 108, 
 §549.
 
 XXVIU 
 
 TABLE OF CASES CITED. 
 
 Coble V. Noncmalccr, 78 Pa. St. 501, 
 
 §50. 
 Cochian v. BiiTl. 3 Mo. 141, g 1211 
 Cockev V. Mil)K'"s Lessee, 16 Mil 
 
 207."g§ 96. 113. 
 Cockrell r. .Alaney, 3 Tenn. Ch. 49, 
 
 gij 343a. 369. 
 Coif ec! V. Gates, 28 Ark. 43, §§ 1297 
 
 1363. 
 Coffin V. Lunt, 3 Pick. 70, §§ 585, 
 607. 
 V. Ray, 1 Mete. 313, § 96. 
 Cofleman \: CampbeU, 87 111. 98 
 g 480)1. 
 V. Wilson, 3 Mete. (Ky.) 543 
 g94a. 
 Cogan V. Cook, 33 Minn. 137, § 188 
 Colby V. Inhabitants of Westbrook 
 57 "Me. 181 ; 3 Am. Rep. 30. S 480.7 
 CoklweU V. Cariington, 9 Pet. 86 
 
 § 48. 
 Cole V. Allen, 51 Ind. 33. § 1353. 
 V. Goodwin, 19 Wend. 251 
 
 §g 543, 543, 553, 5-38. 
 V. Wintercost, 3 Tex. 118 
 § 1397. 
 Coles V. Sims, 5 De G. M. & G. 1 
 
 §50. 
 Coleman v. BarkleT\% 37 N. J. L 
 357, § 288. 
 V. Carpenter, 9 Pa. St. 178 
 
 §§ 781, 783. 
 V. Dobbins, 8 Ind. 156, § 1404 
 Coleman's Appeal, 75 Pa, St. 441 
 
 § 1315. 
 Colgin V. State Bank, 11 Ala. 333 
 
 § 1193. 
 Collier v. Baptist, etc. Soc. 8 B 
 
 Mon. 68, §§ 1408, 1409. 
 Colling V. Treweek, 6 B. & C. 394 
 
 § 1264. 
 Collingwood V. Irwin, 3 Watts, 306 
 
 § 480Z. 
 
 Collins V. Canty, 6 Cush. 415, § 648 
 
 V. New Eng. Ii-on Co. 115 Mass 
 
 23, § 480o. 
 
 Colman v. Watson, 54 Ind. 65, § 49 
 
 Colomer v. Morgan, 13 La. An. 202 
 
 §§ 149. 190. 
 Colt V. Barnard, 18 Pick. 260 
 g§ 738, 739. 
 V. Du Bois. 7 Neb. 394, § 96. 
 V. MiUer, 10 Cush. 51, § 1397. 
 V. Root, 17 Mass. 239, § 1401. 
 Colquitt V. Thomas, 8 Ga. 358, t^ 11. 
 Columbet v. Pachecj, 46 Cal. 650, 
 
 § 1215. 
 Colville, In re, 1 Montag. 110, 
 §450. 
 
 Colvin r. Rich, 3 Post, 175, g 434. 
 Colyer v. Finch, 5 H, & L. 905, 
 
 §§ 13, 47. 
 Comer v. Jackson, 50 Ala. 884, 
 
 § 1359. 
 Commercial Bank v. Clark, 28 Vt. 
 325. § 968. 
 V. Cunningham, 24 Pick. 270, 
 
 ^■g 272, 683a. 
 V. Gove, 15 La. 113, § 864. 
 V. Hughes, 17 Wend. 94, §§ 733, 
 
 943, 1003. 
 V. Strong, 28 Vt. 316, § 866. 
 Commercial Bank of I^ake Erie v. 
 
 Norton, 1 Hill, 501, g 653. 
 Commercial Bank of Rochester v. 
 
 Colt, 15 Barb. 506, § 439. 
 Commonwealth v. Emery, 2 Gray, 
 80, § 1257. 
 V. Essinger, 1 Binn. (Pa.) 273, 
 
 § 1262. 
 V. Goldstein, 114 Mass. 373, 
 
 § 1361. 
 V. Intoxicating Liq. 13 Allen, 
 
 561, § 1175. 
 V. Maloy, 57 Pa. St. 391, § 480ji. 
 V. Peckham, 2Gray, 514. § 1416. 
 V. Powell, 11 Graft. 828, § 87. 
 V. Railroad. 108 ilass. 7, § 558. 
 V. Rhochv, B. Mon. 171, § 121. 
 Comstock V. Farnum, 2 Mass. 96, 
 §431. 
 V. Hier, 73 N. Y. 269. § 94b. 
 Condit V. Blackwell, 19 N. J. Eq. 
 
 193, § 1405. 
 Cone V. Baldwin, 12 Pick. 545, § 87. 
 Cougar V. C. & N. W. R. R. Co. 34 
 
 Wis. 157, § 674. 
 Congdon v. Anderson, 30 lU. 95, 
 § 1233. 
 V. Reed, 7 R. I. 576, § 403. 
 Conn V. Penn, 1 Pet. C. Ct. 496, 
 
 § 748. 
 Connecticut v. Bradish, 14 Mass. 
 
 896, t$§ 303, 331a. 
 Connecticut River Bank v. French, 
 
 6 Allen, 313, § 537. 
 Conover v. Van Mater, 18 N. J. Eq. 
 
 481, § 316. 
 Connersville, Pres't & C. of, v. 
 Woodleigh. 7 Blackf. 103, § 1354. 
 Contee v. Pratt, 9 Md. 73, § 1414. 
 Converse v. WaiTen, 4 la. 158, 
 
 § 1348. 
 Cook V. Farren, 34 Barb. 95, § 1031. 
 V. Mancius, 5 Johns. Ch, 89, 
 
 §341. 
 V. Mutual Life Ins. Co. 53 Ala. 
 37, § 431.
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 Cook V. Tallman, 40 la. 133, § 1411. 
 V. Ti-answell, 3 Moore R. 513, 
 
 § 1275. 
 V. Travis, 20 N. Y. 400; 23 
 Barb. 838, §§ 97, 205, 279, 
 299. 
 V. Wilson, 3 Jur. N. S. 1094: 1 
 C. B. N. S. 153, § 1410. 
 Cook's Lessees v. Kell, 13 Md. 469, 
 
 §§ 118. 226. 
 Cooley V. Brayton, 16 111. 10, § 344. 
 Coolidge V. Charter Oak Life Ins. 
 
 Co. 1 Mo. App. 109, § 673. 
 Cooper V. Bigley. 3 Mich. 463, § 203. 
 V. Reynolds, 10 Wall. 308, 
 
 § 1057. 
 V. Smith, 25 la. 269, §§ 1084. 
 
 1137. 
 V. Watson, 10 Wend. 205, 
 § 480c. 
 Cope V. Coi-dova, 1 Rawle, 203, 
 
 g563. 
 Copeland v. Directors of Mining 
 
 Co. 33 Mich. 2, § 1138. 
 Copperthwaite v. Sheffield, 1 Sandf . 
 
 416, § 714. 
 Coppiu V. Fernyhough, 2 Bro. Cli. 
 
 291, § 307. 
 Corbett v. CantUlon, 5 Ir. Ch. R, 
 
 126, § 104. 
 Corbin v. SuUivan, 47 Ind. 356, 
 
 §316. 
 Corbitt V. Clenny, 53 Ala. 480, 
 
 §8 307, 310. 
 Corby v. Butler, 55 Mo. 398, § 87. 
 Cordeviolle, Succession of, v. Daw- 
 sou, 26 La. An. 534, §§ 147, 149. 
 Cordova v. Hood, 17 Wall. 1, § 65a. 
 Corn V. Sims, 3 Met. (Ky.) 391, 
 
 §§ 103, 267. 
 Cornall v. DuvaU, 23 Ark. 136, 
 
 § 143a. 
 Cornelius v. Partain, 89 Ala. 473, 
 
 § 1241. 
 Corning v. Whyte, 2 Paige, 567, 
 
 §§ 342a, 353. 
 Cornoy v. Da Costa, 1 Esp. 303, 
 
 § 946. 
 Corp V. McComb, 1 Johns. Cas. 328, 
 
 §781. 
 Corpman v. Baccastow, 84 Pa. St. 
 
 363, §§ 187, 188, 297. 
 Corwin v. Merritt, 3 Barb. 341, 
 
 §§ 1075, 1130. 
 Corev V. Cinn. etc. R. Co. 5 la. 357, 
 
 § 1405. 
 Cory V. Eyi-e, 1 De G. J. & S. 149, 
 §§ 48, 65a. 
 V. Scott, 3B. & Aid. 619, §1004. 
 
 Cosser v. Collinge, 3 My. & K. 283, 
 8 321 
 
 Coster 'v. Bank of Ga. 24 Ala. 37, 
 §225. 
 V. Thomason, 19 Ala. N. S. 717, 
 §753. 
 Cotton V. Hart, 1 A. K. Marsh. 56, 
 
 5^8. 
 Coulter V. Morgan's Adm'rs, 13 B. 
 
 Mon. 378, § 480m. 
 County of Green v. Bledsoe, 13 111. 
 
 367, §g 1226, 1253. 
 Course v. Shackleford, 3 Nott & 
 
 McC. 283, § 738. 
 Cove V. Cove, L. R. 15 Ch. Div. 639, 
 
 §690. 
 Coveny V. Hale, 49 Cal. 552, §§ 1190, 
 
 1201. 
 Cover V. Black, 1 Barr, 493, § 96. 
 Covington v. Shepherd, 20 How. 
 
 237, § 1404. 
 Cox V. Coventon, 31 Beav. 378, 
 §§ 15, 34, 331. 
 V. Mathews, 17 Ind. 367, § 1139. 
 V. Miluer, 23 111. 476, J^i? 7, 364. 
 V. Strode, 3 Bibb, 373, § 480c. 
 Coy V. Coy, 15 JMimi. 119, §g 96, 323, 
 
 328. 
 Crabb v. Atwood, 10 Ind. 331, 
 
 k^ 1075. 
 Crabtree v. Breckenridge, 48 111. 91, 
 
 § 65a. 
 Craft V. Isham, 13 Conn. 28, §§390, 
 
 418, 419. 
 Craft's Appeal, 43 Conn. 146, §s 90, 
 
 91. 
 
 Craig V. Craig, 5 Rawle, 91, § 480ni. 
 
 V. Hawkins, Hard. (Ky.) 46, 
 
 § 1138. 
 
 Cram v. Sherburne, 14 Me. >48, 
 
 § 956. ^ 
 
 Crandell v. Vickery, 45 Baa-b. 156, 
 
 § 93a. 
 Crane v. Turner, 7 Hun, 357 ; 67 N. 
 
 Y. 437, § 113. 
 Crassen v. Swoveland, 23 Ind. 437, 
 
 §§ 344, 346, 397. 
 a-awford v. Clark, 15 111. 561, 
 §564. 
 i;. jMilligan, 3 Crauch C. C, 236, 
 §830. 
 Crayton v. Clark, 11 Ala. 787, 
 
 §434. 
 Credlandu. Potter, 18 Eq. Cas. 350; 
 
 L. R. 10 Ch. 8, §§ 110, 231. 
 Cregler v. Dm-ham, 9 Ind. 375, 
 
 §495. 
 Cremer v. Higginson, 1 Mason, 323, 
 §§ 389, 401, 529.
 
 XXX 
 
 TAELE OF CASES CITED. 
 
 Crittenden v. Woodruff, 11 Axk. 
 
 82, § 1228. 
 Crocker v. Crocker, 31 N. Y. 507, 
 Rg 67, G8. 
 V. Diinkin, 6 Blackf. 533, 
 
 § 1159. 
 V. Getcliell, 23 Me. 392, § 706. 
 V. Gilbert, 9 Cush. 131, § 1401. 
 V. GuUifer, 44 Me. 491, i< 72. 
 Crocket v. ]Mafi:uire, 10 Mo. 34, 
 
 §§ 205, 207, 213. 
 Crofton V. Ornisbv, 2 Sch. & L. 
 
 583, §§ 52, 279, 286, 303. 
 Ci-ofut V. Wood, 3 Hun, 571, § 209. 
 Ci-oix V. Sibbert, 15 Pa. St. 238. 
 
 §94a. 
 Cromwell v. County of Sac. 6 Cent. 
 
 L. J. 209 (U. S.), 1877, § 62. 
 Crook V. Jadis, 5 B. & A. 909, §§ 80, 
 
 82. 
 Crooker v. Appleton, 25 Me. 131, 
 
 § 1254. 
 Ci-osby V. Houston, 1 Tex. 203, 
 
 §192. 
 Croskey v. Chapman, 26 Ind. 333, 
 
 § 307. 
 Cross V. Bell, 34 N. H. 82, § 1280. 
 
 V. Smith, 1 M. & S. 545, § 743. 
 Crossly v. Ham, 13 East, 498, § 94. 
 Crouise v. Kellogg, 20 111. 11, g 94a. 
 Crow V. Robinson, L. R. 3 C. P. 
 
 264, § 434. 
 Crowell V. Davis, 12 Met. 293, 
 § 1138. 
 V. Galloway, 3 Neb. 215, § 1366. 
 Crowther v. Rowlandson, 27 Cal. 
 
 276, § 1201. 
 Culler V. Motzer, 13 S. & R. 358, 
 
 §280. 
 Culpepper v. Aston, 12 Ch. Cas. 
 
 115, § 338. 
 Culver V. Felt, 4 Rob. (N. Y.) 681, 
 § 1169. 
 V. Rhodes, 87 N. Y. 354, § 280. 
 Cumniings v. Stone, 13 Mich. 70, 
 
 § 1410. 
 Cunningham v. Buckingham, 1 
 Ohio, 264, §§ 225. 273. 
 V. Pattee, 99 Mass. 248, g§ 274, 
 
 286, 303. 
 V. Southern Ex. Co. 67 N. C. 
 
 425, § 1307. 
 V. Wai-nekey, 61 Cal. 507, § 1217. 
 Cupples V. Wheelan, 61 Mo. 583, 
 
 §669. 
 Curran v. Shattuck, 24 Cal. 427, 
 
 §343. 
 Currens v. Hart, Hardin, 37, § 27. 
 Cun-ier v. Baker, 2 Gray, 224, §632. 
 
 Currv V. Bank of Mobile, 8 Port. 
 
 (Ala.) 360. § 781. 
 Cm-tis V. Blair, 4 Cush. 309, §§ 10, 
 29, 35. 
 V. Leavitt, 15 N. Y. 194, § 676. 
 V. Lyman, 24 Vt. 338, §§ 165, 
 
 172. 
 V. Marsh. 4 Jur. N. S. 1112, 
 
 § 1410. 
 V. Mundv, 3 Mete. 405, §S 7, 9, 
 
 246, 275. 
 V. Sacramento, 64 Cal. 102, 
 
 § 1138. 
 V. State Bank, 6 Blackf. 312, 
 §§ 852, 1397. 
 Gushing v. Ayer, 25 Me. 383, § 97. 
 
 V. Kurd, 4 Pick. 252, § 236. 
 Custer r. Tompkins County Bank, 
 
 9 Pa. St. 27, § 633a. 
 Cutler V. Caruthers, 48 Cal. 178, 
 
 § 1414. 
 Cutler V. Wright, 22 N. Y. 472, 
 
 § 1405. 
 Cuyler v. Ferrill, 1 Abb. 169, § 1411. 
 
 D. 
 
 Dabnev v. Stidger, 4 Sm. & M. 
 
 749, § 755. 
 Daggett V. Whiting, 35 Conn. 372, 
 
 § 94a. 
 
 Daily v. State, 10 Ind. 536, § 1404. 
 
 Dale V. Kimpton, 46 Vt. 76, § 436. 
 
 V. Wilson, 16 ilinn. 525, § 1406. 
 
 Daly V. Slatter, 4 Carr. & P. 200, 
 
 §817. 
 Dambmann v. White, 48 Cal. 439, 
 
 §§ 1201, 1240. 
 Dana v. Boyd, 2 J. J. Marsh, 587, 
 § 1269. 
 V. Conant, 30 Vt. 246, § 1266. 
 Danforth v. Dart, 4 Duer, 101, § 10. 
 Daniels v. Davidson, 16 Ves. 249, 
 §§ 53, 278, 279, 282, 303. 
 V. Sorrells, 9 Ala. 436, § 96. 
 Dann v. Spurrier, 7 Ves. 231, § 65a. 
 DanvUle, etc. Co. v. State, 16 Ind. 
 
 456, § 1408. 
 Dai-bisliire v. Parker, 6 East, 3, 
 
 §§ 794, 824. 
 Dai-gin v. Beeker, 10 la. 571, §§ 96, 
 
 310. 
 Darlington v. Cominon wealth, 41 
 
 Pa. St. 68, §§ 1126, 1127. 
 Darrance v. Pi-eston, 18 la. 396, 
 
 § 1352. 
 Dasher v. Dasher, 47 Ga. 320, § 1379. 
 Daubenspeck v. Piatt, 22 Cal. 330, 
 
 §§ 281, 294.
 
 TABLE OF CASES CITED. 
 
 XXXI 
 
 Davant v. Carleton, 53 Ga. 491, 
 
 § 1380. 
 Davenport v. Gilbert, 4 Bosw. 533, 
 
 g^ 836, 861, 864. 
 V. Woodbridge, 8 Me. 17, § 440. 
 Davidson v. Graham, 2 Ohio St. 
 
 131, § 553. 
 Davidson v. Petticolas, 34 Tex. 27, 
 
 § 1414. 
 Davies v. Hopkins, 15 111. 519, 
 
 § 273. 
 V. Sear, L. R. 7 Eq. 427, §§ 2^, 
 
 65a. 
 V. Tliomas, 2 Young & C. Exch. 
 
 234, § 307. 
 Davis V. Bank of Fulton, 31 Ga. 
 
 69, § 1404. 
 V. BaiT, 9 S. & R. 137, § 431. 
 V. Best, 2 la. 96, § 1412. 
 V. Bigler, 62 Pa, St. 241, § 8. 
 V. Blunt, 6 Mass. 487. § 278. 
 V. Burt, 7 la. 56, §§ 1346, 1362, 
 
 1369. 
 V. Davis, 48 Vt. 502, § 1252. 
 V. D. & M. R. R. Co. 20 Mich. 
 
 105, § 674. 
 V. Duffle. 1 Abb. App. Dec. 486, 
 
 g 1317. 
 V. Earl of Strathmore, 16 Ves. 
 
 419, §§ 231a. 240. 
 V. Francisco, 11 Mo. 572, § 739. 
 V. Hanley, 12 Ark. 645, gg 805, 
 
 809. 
 V. Keyes, 38 N. Y. 94. § 499. 
 V. McCready, 17 N. Y. 280, 
 
 g 94a. 
 V. Ownsby, 14 Mo. 170, § 239. 
 V. Patty. 42 Miss. 509, § 1374. 
 V. Planters' Banlv, 1 S. & M. 
 
 261, § 812. 
 V. Wilbourne, 1 Hill, S. C, 28, 
 
 § 480cZ. 
 V. Willan, 2 Stark. 279, § 538. 
 V. Williams, Peck (Tenn.), 191, 
 
 8 9|9_ 
 
 V. Williams, 16 Q. B. 546, 
 § 480/1. 
 Davis, Jackson ex dem. v. Bron- 
 
 son, 4 Cow. 51, § 1178. 
 Davis Sewing Machine Co. v. Jones, 
 
 61 Mo. 409, §§ 395, 400, 1389. 
 Dawson v. Danbury Bank. 15 Mich. 
 489, §§ 281, 294, 299. 
 V. Dawson, Rice Eq. 243, § 101. 
 V. Goodyear, 43 Conn. 548, 
 
 § 94&. 
 V. Kittle, 4 Hill, 107. § 480n. 
 V. Prince, 2 D, & J, 41, § 10. 
 Day V. Clark, 25 Vt, 397, § 200. 
 
 Day V. Newark India Rubber Co. 1 
 
 Blatchf. 628, § 1306. 
 
 V. Walmsley, 33 Ind. 145, § 688. 
 
 V. Zimmerman, 68 Pa. St. 72, 
 
 § 372. 
 
 Daylight Burner Co. v. Odlen, 51 
 
 N. H. 56 ; 12 Am, Rep, 45. § 652, 
 
 Dean v. Border, 15 Tex, 298, § 1268. 
 
 Bearing v. Watkins, 10 Ala. 20, 
 
 § 231, 
 Dearie v. HaU, 3 Russ. 1, § 433. 
 Deason v. Taylor, 53 Miss, 697, 
 
 g^ 307, 330. 
 Debell v. Foxworthy, 9 B, Mon. 
 
 228, § 359. 
 Debuys v. Mollere, 3 Mart. N, S, 
 
 318, § 956, 
 De Cells v. United States, 13 Ct. of 
 
 CI, 117, ^ 1411. 
 Deering v\ Flanders, 49 N. H. 225, 
 
 § 494. 
 Deford v. Reynolds, 36 Pa. St. 325, 
 
 §^ 483, 494. 
 Deiti-ich v. Lang, 11 Kan, 636, 
 
 g 1045, 
 Delacroix v. Cenas, 20 Mart. (La.) 
 
 356, g 480c. 
 De Lane v. Moore, 14 How. 253, 
 
 g224, 
 Delano v. Jopling, 1 Litt, 117, 
 
 i5 1405, 
 Delogney r. Smith. 3 La, 518, g 1113. 
 Delong I'. Brainard, 2 Thomp. & C. 
 
 1, §g 1212, 1213. 
 Den V. Adams, 12 N. J. L. 99, 
 §g 581, 596. 
 V. Bennett, 4 Ired. (N, C.) 122, 
 
 g600. 
 V. Mackay, 2 N. J. L. 419, 
 
 § 588. 
 V. Mcintosh, 4 Ired. 291, § 607. 
 Denn v. Rawlins, 10 East, 281, 
 
 §600, 
 Dennis v. Barbour, 6 S. & R. 420, 
 § 1258. 
 V. Burrett, 6 Cal. 670, §§ 97, 
 
 208. 
 V. Morrice, 3 Esp. 158, § 945. 
 Denniston v. Bacon, 10 Johus. 198, 
 §94&. 
 V. Imbrie, 3 Wash. C. Ct. 396, 
 §748. 
 Denny v. Cabot, 6 Mete. 82, § 525. 
 V. Palmer, 5 Ired. 610, §§ 946, 
 991. 
 Denster v. McCamus, 14 Wis. 307, 
 
 §203, 
 De Ruvter v. Tnistees, etc. 2 Barb. 
 Ch. 556, §§ 97, 103.
 
 xxxu 
 
 TABLE OF CASES CITED. 
 
 Deshon v. Fosdick, 1 Woods, 286, 
 
 §382. 
 Despau v. Swindler, 3 Mart. N. S. 
 
 705, ^ 1413. 
 Detroit v. Blakely, 21 Mich. 84. 
 
 ^ 2^. 
 Dottinar r. Metropolitan, etc. Bank, 
 
 1 H. & M. 641, t? 10. 
 Beveling v. Ferris, 18 Ohio, 170, 
 
 §S 943, 944. 
 De Vendal v. ]\Ialone, 25 Ala. 272, 
 
 § 225. 
 Dewey v. Littlejohn, 2 Ired. Eq. 
 
 495, § 245. 
 Dewitt V. Moulton, 17 Me. 418, 
 
 §§ 112, 125. 
 Dewes v. Colorado Co. 32 Tex. 570, 
 
 § 1412. 
 Dews V. OleviU, 3 Baxt. 432, § 436. 
 Dev V. Dunham, 2 Johns. Ch. 182, 
 
 §§ 186, 244. 
 De Yampert v. Brown, 28 Ark. 166, 
 
 § 207. 
 Diamond v. Lawrence Co. Bank, 1 
 
 Wrio^ht, 353. § 371. 
 Dicken v. Hall, 87 Pa. St. 379, 
 
 ^ 829. 
 Dickens r. Beal, 10 Pet. 572, §§ 829, 
 
 1001, 1004. 1005. 
 Dickenson r. Breeden, 30 111. 279, 
 § 1404. 
 V. Glenny, 27 Conn. 104, § 113. 
 Dickerson v. Campbell, 32 Mo. 544, 
 
 §45. 
 Dickey v. Lyon, 19 La. 544, §§ 284, 
 
 286. 
 Dickinson v. Dickinson, 25 Gratt. 
 321, § 515. 
 V. Hall, 14 Pick. 217, § 94a. 
 Diehl V. Page. 3 N. J. Eq. 143, §§ 44, 
 
 65a. 
 Digman v. McCollum, 47 jMo. 372, 
 
 §§ 113, 118, 205, 214. 
 Dill V. Camp, 22 Ala. 249, § 1253. 
 Dhnon v. Dunn, 15 N. Y. 498, § 208. 
 Disbrow v. Jones, HaiTing. Ch. 48, 
 
 §281. 
 Distilled Spirits, The, 11 Wall. 356, 
 
 §§ 672, 677, 687, 689, 690. 
 Division of Howard Co. 15 Kan. 
 
 194, § 1404. 
 Dix V. Cobb, 4 Mass. 508, §§ 434, 
 436. 
 V. Flanders, 1 N. H. 246, § 1390. 
 Dixon V. Doe, 1 Sm. & M. 70, §§ 235, 
 246, 273, 278. 
 V. Dunham, 14 111. 324, § 576. 
 V. Frazer. 1 E. D. Smith, 32, 
 § 391. 
 
 Dixon V. La Coste, 1 Sm. & M. 107, 
 
 § 373. 
 V. Nichols, 39 111. 372, § 1415. 
 Dobbin v. Bradley, 17 Wend. 422, 
 
 §399. 
 Dobree v. Eastwood, 3 Carr. & P. 
 
 250, § 795. 
 Dodd V. Atkinson, Com. Dig. PI. 
 
 C. 75, § 1391. 
 V. Bratt. 1 Mmn. 270. § 434. 
 Dodds V. Hills, 2 H. & M. 424, 
 
 §§ 11, 34. 
 Dodge V. Bank of Kentucky, 2 A. 
 
 K. Marsh. 610, § 757. 
 
 V. Coffin, 15 Kan. 277, § 1405. 
 
 V. Favor, 15 Gray, 82, § 480ft. 
 
 V. Potter, 18 Barb. 193,'§ 171. 
 
 Doe V. Allsop, 5 B. & Add. 142, 
 
 §231. 
 V. Archer. 14 East, 245, § 639. 
 V. Baker, 2 Dev. 270, § 593. 
 V. Bank of Cleveland, 3 
 
 McLean. 140. ^^, 225. 
 V. Bell, 5 T. R. 471, § 586. 
 V. Brown, 8 Blackf. 443, § 1253. 
 V. Calvert, 2 Camn. 387, § 649. 
 V. Chaplin, 3 Taunt. 120, § 616. 
 V. Ci-ick, 5 Esp. 196, § 627. 
 V. Goldwin, 1 G. & D. 463; 2 
 
 Ad. & El. 143. ,5^ 619, 701. 
 V. Hazell, 1 Esp. 94, § 611. 
 ♦ V. Howard, 11 East, 498, § 612. 
 V. Hulme, 2 Mann. & Rv. 433, 
 
 § 617. 
 V. Lea. 11 East, 312, § 609. 
 V. Martin. 1 M. & Rob. 242, 
 
 § 1290. 
 V. Miller, 2 Carr. & P. 348, 
 
 §609. 
 V. Milward, 3 M. & W. 328, 
 
 §645. 
 V. Mizem, 2 Mood. & R. 56, 
 
 § 620. 
 V. Murless, 6 M. & S. 110, § 626. 
 V. Porter, 3 T. R. 13, § 607. 
 V. Quiglev, 2 Camp. .505, § 594. 
 V. Read, 12 East, 57, § 623. 
 V. Robinson, 3 Bing. N. C. 677, 
 
 § 621. 
 V. Saver, 3 Camp. 8, § 593. 
 V. Scott, 6 Bing. 362, §§ 607, 
 
 611, 634. 
 V. Spence, 6 East, 120, § 612. 
 V. Spittv. 3 Barn. & Ad. 182, 
 
 § 1288. 
 V. Stennett, 2 Esp. 716, § 581. 
 V. Summersett, 1 B. & Ad. 135, 
 
 §616. 
 V. Sweetser, 2 Ind. 649, § 1121.
 
 TABLE OF CASES CITED. 
 
 XXXIU 
 
 Doe t'. Walters, 10 B. & C. 63G, 
 §S 619, 701. 
 V. Watkiiis, 7 East, 551, §§ 613, 
 
 627. 
 V. Watts, 7 D. & E. 83, §§ 581, 
 
 595. 
 V. Wilkinson, 13 Ad. & El. 743, 
 
 § 638. 
 
 V. WiUiams, 6 B. & C. 41, § 636. 
 
 V. Woodman, 8 East, 338, § 628. 
 
 V. Wrij>htman, 4 Esp. 5, g 629. 
 
 Dogan V. Dubois, 3 Rich. Eq. 85, 
 
 § 94a. 
 Doherty v. Perry, 38 Ind. 15, § 94a. 
 Dole V. Thurlow, 12 Mete. 157, 
 §96. 
 V. Youn-?, 24 Pick. 250, §§ 413, 
 425, '426. 
 Dolin V. Gardner, 15 Ala. 758, 
 
 § 205. 
 Dolman v. Orchard, 3 Carr. & P. 
 
 104, § 483. 
 Donaldson v. Donaldson, Kay, 711, 
 § 430. 
 V. Means, 4 Dall. 109, §§ 956, 
 975. 
 Donath v. Broomhead, 7 Pa. St. 
 
 301, § 469. 
 Donley v. Camp, 33 Ala. 659, § 398. 
 Donnelly v. Howie, Hayes & J. 436, 
 
 i^ij 956" 966. 
 Dooley v. Wolcott, 4 Allen, 406, 
 
 g^ 14, 345, 374. 
 Ddolittle V. Cook, 75 111. 354, §§ 203, 
 
 310. 
 Doon V. Donaher, 113 Mass. 151, 
 
 § 1376. 
 Dorchester v. New Eng. Bank, 1 
 
 Cush. 177, ^ 480o. 
 Dorsey v. Hall, 7 Neb. 465, § 96. 
 V. Watson, 14 Mo. 59, §§ 973, 
 975. 
 Doswell V. Buchanan, 3 Leigh, 365, 
 
 g§ 97, 103, 214. 
 Douglass V. Howland, 34 Wend. 35, 
 §S 388, 395, 401. 
 V. McCrackm, 53 Ga. 596, 
 
 §339. 
 V. Rav, 4 Durnf. & East, 553, 
 
 § 1301. 
 V. Reynolds, 7 Pet. 113, §§ 392, 
 
 406, 407. 
 V. Scott, 8 Leigh, 43, § 87. 
 Dow V. N. J. Steam Co. 11 N. Y. 
 485, § 553. 
 V. Say ward, 12 N. H. 271, 
 
 § 535. 
 V. School Dist. 46 Vt. 108, 
 § 1312. 
 
 Dowle V. Saunders, 3 Hem. & Mill. 
 
 243, g 56. 
 Down V. Rice, 11 Wend. 178, 
 
 § 1177. 
 Downer v. Garland, 21 Vt. 363, 
 §348. 
 V. Remer, 21 Wend. 20, §§ 903, 
 904. 
 Downs V. Planters' Bank, 1 Sm. & 
 
 M. 361, § 805. 
 Doyle r. Bradford, 90 El. 416, 
 § 1411. 
 V. Gibbs, 6 Lans. 180, § 601. 
 V. Peerless, etc, Co. 44 Barb. 
 
 339, § 214. 
 V. Steyens, 4 Mich. 87, §§ 96, 
 
 208, 273, 276. 
 V. Teas, 5 111. 203, §§ 7, 13, 113, 
 307, 601. 
 Drake v. Crowell, 40 N. J. L. 58, 
 § 851. 
 r. Flewellen, 33 Ala. 106. ^1408. 
 V. Hale, 38 Mo. 346, § 1037. 
 Draper v. Draper, 59 111. 119, § 1333. 
 
 V. Weld, 13 Gray, 580, § 87. 
 Dresser v. Missouri, etc. R, Co. 93 
 U. S. 93, § 93. 
 V. Norwood, 17 C. B. N. S. 466, 
 
 § 687. 
 V. Wood, 15 Kan. 344, § 348. 
 Drew V. Lord Norbury, 3 Jones & 
 L. 367. § 104. 
 V. Towle, 37 N. H. 413, § 94a. 
 Driscoll, In re, 1 1. R. Eq. 285, § 104. 
 Drinkwater v. Tebbetts, 17 Me. 16, 
 
 § 936. 
 Dronillard v. Whistler, 29 Ind. 552, 
 
 §§ 1037, 1041, 1057. 
 Drummond v. Prestman, 12 Wheat. 
 
 515, § 405. 
 Dryden v. Frost, 8 M. & C. 670, 
 
 §§ 47, 56, 690. 
 Drysdale v. Mace, 2 Sm. & Gif. 325, 
 
 § 331, 
 Dubois V. Barker, 4 Hun, 80, §§ 25, 
 26. 
 V. Hermance, 56 N. Y. 673, 
 § 480iu. 
 Duchess of Kingston's Case, 2 
 Smith Lead. Cas. 705 (7 Am. ed.), 
 § 314. 
 Ducoway v. Gait, 30 Ark. 190, §96. 
 Dudley v. Witter, 46 Ala. 664, 
 
 §g 307, 338. 
 Duff V. Budd, 3 Brod. & Bing. 177, 
 
 § 560. 
 Duflfield V. Scott, 3 T. R. 374, § 418. 
 Dugard v. Edwards, 50 Barb. 289, 
 § 480?i.
 
 XXXIV 
 
 TAULE OF CASES CITED. 
 
 DugG:<an r. King, Rice, 1239, § 994. 
 
 Duke V. Bohm, 16 Minn. 306, § 679. 
 
 Dunbai' v. Brown, 4 McLean, 166, 
 
 §390. 
 
 V. Fi-edeunick, 2 Ba. & Be. 310, 
 
 §48. 
 V. Rawles, 28 Ind. 225, § 72. 
 V. Tyler, 44 Miss. 1, ^ 98.3. 
 Duncans. Jaudon, 15 Wall. 165, 
 § 6835. 
 V. Matney, 29 Mo. 368. § 1089. 
 Duncan & Sherman v. Gilbert. 29 
 
 N. J. L. 521, § 946. 
 Duugan v. Am. Ins. Co. 52 Pa. St. 
 253, § 96. 
 V. ]\mier, 37 N. J. L. 182, § 1358. 
 Dunham v. Dev, 15 Jolins. 555, 
 
 §§ 244, 246. 
 Dunks r. Fuller, 32 Mich. 242, § 278. 
 Dunlap V. Higgins, 1 H. L. Cas. 
 381, § 383. 
 V. Wilson, 32 111. 517, §§ 273, 
 278, 288, 689. 
 Dunn V. Games, 1 McLean, 321. 
 §348. 
 V. Weston, 71 Me. 270, § 94&. 
 Dunning v. Foster, 42 N. H. 165. 
 § 1222. 
 V. Smith. 3 Johns. Ch. 344, 
 § 660.' 
 Durbin v. Waldo, 15 Wis. 532, 
 
 § 1206. 
 Durden v. Smith, 44 Miss. 548, 
 
 §984. 
 Durham v. Price, 5 Yerg. 300, § 732. 
 Dunossett v. Hale, 38 Mo. 346, 
 
 § 1057. 
 Duryee v. Dennicon, 5 Johns. 248, 
 
 §975. 
 Dutch, etc. Co. v. Mooney, 12 Cal. 
 
 534, § 1408. 
 Dutton V. Warschauer, 21 Cal. 609, 
 
 §§ 65a, 373. 
 Duxbuiy V. Vermont, etc. R. Co. 
 
 26 Vt. 751, § 480?M. 
 Dwight V. Emmerson, 2 N. H. 159, 
 §73S. 
 V. Scoville, 2 Conn. 654, § 1021. 
 Dyer v. Flint, 21 111. 80, §§ 1412, 
 1413. 
 V. Hargi-ave, 10 Ves. 506, § 65a. 
 V. Peai-son, 3 B. & C. 38, §653. 
 
 E. 
 
 Eagle Bank v. Chapin, 3 Pick. 180, 
 § 1281. 
 V. Hathaway, 5 Mete. 312, 
 §§ 717, 914. 
 
 Earl r. JlcVeigh, 91 U. S. 503, 
 § 1350. 
 V. Van Alstine, 8 Barb. 630, 
 § 480i. 
 Earl of Lonsdale v. Nelson, 2 B. & 
 
 C. 302. § 480/i.. 
 Early v. Doe, 16 How. 610, §§ 1106, 
 
 1116. 
 East V. Thoroiighgood, 1 Croke, 
 
 834, § 1387. 
 East Saginaw & St. Clair R. R. Co. 
 V. Benham, 28 Mich. 459, § 1127. 
 East Tennessee v. Gaskell, 2 Lea 
 
 (Tenn.), 742, § 1404. 
 Eastbrook v. Eastbrook, 64 Barb. 
 
 421, § 1033. 
 
 Eastman v. Amoskeag Manf. Co. 
 
 44 N. H. 143, § 1280. 
 
 V. Bennett, 6 Wis. 232, § 1226. 
 
 V. Crosby, 8 Allen, 206, § 1405. 
 
 V. Little. 5 N. H. 290; 4 Hill, 
 
 92. §:i 1109, 1110. 
 V. Thurman, 24 Cal. 379, § 737. 
 Ebner v. Goundes, 5 Watts & S. 49, 
 
 §96. 
 Eck V. Hatcher, 58 Mo. 235, §§ 10, 
 
 24. 
 Eddy, The, 5 Wall. 481, §§ 569, 
 
 577a. 
 Edmeston v. Lyde, 1 Paige, 637, 
 
 §§ 342a, 353. 
 Edminster v. Higgins, 6 Neb. 269, 
 
 §90. 
 Ednions v. ToiTence, 48 Ala. 38, 
 
 §316. 
 Edmonston v. Drake, 5 Pet. 624, 
 
 §408. 
 Edwards v. Banksmith, 35 Ga. 213, 
 § 341. 
 V. Cahawba, 14 La. An. 224, 
 
 § 541. 
 V. Martin, L. R. 1 Eq. 121, § 433. 
 V. McFall, 5 La. An. 167, § 494. 
 V. Mon-is, 2 A. K. Marsh. 65, 
 
 §48. 
 V. Thomas, 2 Mo. App. 282, 
 
 §§ 88, 662, 682. 
 V. Thompson. 71 N. C. 177, 
 
 §§ 246, 273, 278, 286. 
 V. Trumbull, 50 Pa. St. 509, 
 §187. 
 Ehle V. Brown, 31 Wis. 404, § 296. 
 Hchelberger v. Finlev, 7 Harr, & 
 
 J. 381, § 1009. 
 Eisenhart v. Slaymaker, 14 S. & R. 
 
 153, § 1281. 
 Eleev. Wait, 28 Bl. 70, §S 1063, 1140. 
 Eldridge v. Walker, 80 III 270, 
 §358.
 
 TABLE OF CASES CITED. 
 
 XXXV 
 
 Ellershaw v. Magniac, 6 Excli. 570, 
 
 §477. 
 Ellis V. Jaszynsky, 5 Cal. 444, 
 § 1221. 
 V. Kreutzinger, 27 Mo. 311, 
 
 §438. 
 V. Lull, 45 N. H. 419, § 1245. 
 V. Paige, 3 Pick. 71, §§ 585, 607. 
 V. Reddin, 12 Kan. 306, § 1412. 
 Elliott V. Eddins, 24 Ala. 509, § 1101. 
 
 V. Stone. 12 Cush. 174. § 635. 
 Ellsassar v. Hunter, 28 Cal. 279, 
 
 § 1329. 
 Ellsworth V. Moore, 5 la. 286. § 1414. 
 Elsey r. Lutyens, 8 Hare, 159, § 260. 
 Elwood V. Deifeudorf, 5 Barb. 412, 
 § 480HI. 
 V. Flannigan, 104 U. S. 562, 
 § 1404. 
 Ely V. Wilcox, 20 Wis. 523, §§ 203, 
 
 210, 288. 
 Embury v. Conner, 2 Sandf. 98, 
 
 §205. 
 Emeric v. Alverado, 64 Cal. 529, 
 
 § 1201. 
 Emery V. Gas Co. 28 Cal. 345, § 1123. 
 Emmett v. Butler, 7 Taunt. 599, 
 
 §486. 
 Emmons v. Murray, 16 N. H. 385, 
 §§ 273, 274, 278. 
 V. Scudder, 115 Mass. 367, § 603. 
 Empii-e Bank, l7i re, L. R. 5 Ch. 
 
 358. § 674. 
 Empire T. Co. v. Oil Co. 63 Pa. St. 
 
 14, § 558. 
 English V. Waples, 13 la. 570, § 97. 
 Eplev V. Witherow, 7 AVatts, 163, 
 
 §§'10, 29, 30, 279. 
 Erie, etc. Transp. Co. v. Dater, 8 
 
 Cent. L. J. 293, § 548. 
 Erickson v. Rafferty, 79 111. 209, 
 
 §§ 27, 185. 
 Erskine r. Steamboat Thames, 6 
 
 Mo. 371, § 573. 
 EsdaUe v. Sowerby, 11 East, 114, 
 
 §991. 
 Espin V. Pemberton, 3 De G. & J. 
 
 547, §§ 35, 56, 65o, 674. 
 Espy V. Lake, 10 Ha. 260, § 10. 
 Essex V. Baugh, 1 Y. & C. Ch. 620, 
 
 §260. 
 Estate of Leiman, 32 Md. 225. § 225. 
 Estate of Palomeres, 63 Cal. 402, 
 
 § 1136. 
 Esterbrook Steel Pen Co. v. Ahern, 
 
 3 N. J. Eq. 341, § 1414. 
 Estrella, The, 4 Wheat. 298, § 1413. 
 Etherington V. Parrot, 1 Salk. 118, 
 §671. 
 
 Etting V. Schuylkill Bank, 2 Pa. St. 
 
 355, §§ 797, 840. 
 Eureka, etc. Co. v. Sup. Ct. etc. 5 
 
 W. Coast Rep. 179, § 1140. 
 Evans t'. BickneU, 6 Ves. Jr. 173, 
 §56. 
 V. Drummond, 4 Esp. 89, 
 
 §§ 486, 490. 
 V. Evans, 9 Paige, 178, § 724. 
 V. Kymer, 1 Barn. & Ad. 528, 
 
 §945. 
 V. Sweet, Ry. & M. 83, § 1273. 
 Evansville, etc. R. Co. v. Andi-o- 
 scoggin Mills, 22 Wall. 09 i, 
 § 554. 
 V. Smith, 65 Ind. 92, § 1417. 
 V. Young, 28 Ind. 516, § 553. 
 Everett v. Saltus, 15 Wend. 474, 
 
 §§ 653, 669. 
 Ewart V. Cochrane, 4 Macq. 117, 
 
 §65a. 
 Ewing V. Higby, 67 Ohio, 343, 
 
 § 1160. 
 Exch. & Banking Co. v. Boyce, 3 
 
 Rob. (La.) 307, §905. 
 Eyre v. McDonald, 9 H. L. Cas. 
 619, §§ 240, 434. 
 
 Fabyan v. Russell, 38 N. H. 84, 
 
 § 1410. 
 Fagg V. aements, 16 Cal. 389, 
 
 § 1161. 
 Fair v. Stevenot, 29 Cal. 486, §§ 96, 
 
 274. 
 Faircloth v. Jordan, 18 Ga. 350, 
 
 §214. 
 Falconer v. Montgomery, 4 Dall. 
 
 432, § 1138. 
 Fall River Bank v. Sturtevant, 12 
 
 Cush. 372, § 683&. 
 Fallas V. Pierce, 30 Wis. 443, §§ 203, 
 
 231a. 
 Fall's National Bank v. Tovsmsley, 
 
 102 Mass. 177, § 910. 
 Fancher v. De Montegre, 1 Head, 
 
 40, § 1412. 
 Fant V. Miller, 17 Gratt. 187, § 1237. 
 Fanton v. Fairfield Co. Bank, 23 
 
 Conn. 485, § 432. 
 Farmer v. Stewart, 2 N. H. 97, 
 
 §1141. 
 Farmers' Bank v. Bank of Pa. 7 
 Watts & S. 335, § 136. 
 V. Duvall, 7 Gill & J. 78, § 809. 
 V. Vail, 21 N. Y. 485, § 819.
 
 XXXVl 
 
 TABLE OF CASES CITED. 
 
 Farmers' Bank i'. Vanmeter, 4 
 Rand. 558, § 1004. 
 V. Waples, 4 HaiT. (Del.) 429, 
 i^ 939. 
 Farmors' Bank of Va. v. Gunnel. 
 
 26 Gratt. 1:31, t^ 985. 
 Fannt'i-s', etc. Biuik v. Noxon, 45 
 
 N. Y. 7G2. S 94b. 
 Farmers' & Citizens' Bank v. Payne, 
 
 25 Conn. 444, i?^ G83, G83a. 
 Farmers' & Mechanics' Bank v. 
 Champlain Tr. Co. 23 Vt. 
 186, t^,^ 552, 553. 
 V. Ciiamplain Tr. Co. 16 Vt. 53, 
 
 §§ 575, 576. 
 V. Kircheval, 2 Mich. 504, 
 §§ 402, 418. 
 Farmers' & Merchants' Bank v. 
 
 Lonergan, 21 Mo. 46, § 1257. 
 Farmers' Loan, etc. Co. v. Maltby, 8 
 
 Paige, 361, §§ 205, 276. 
 Farmers" National Bank v. Fletcher, 
 
 44 la. 252, § 348. 
 Farnhani r. Campbell, 10 Paige, 
 598, §§ 342«, 353. 
 V. Railroad, 55 Pa. St. 53, § 553. 
 Farnsworth r. Cliilds, 4 Mass. 637, 
 
 §§8, 231, 278. 
 Farnum v. Towle, 12 Mass. 92, 
 
 i^ 991. 
 Farquarson v. Eichelberger, 15 Md. 
 
 63, g 115. 
 Farrar v. Bates, 55 Tex. 193, § 1414. 
 V. Eastman, 10 Me. 191, § 1112. 
 Farrell Foundry v. Dart, 26 Conn. 
 376, § 683. 
 V. Jones, 63 Cal. 194, § 1202. 
 Fan-ington r. Woodward, 82 Pa. 
 
 St. 259, §S 672, 674. 
 Farrow v. Rees, 4 Beav. 18, § 30. 
 Fassin v. Hubbai-d, 55 N. Y. 471, 
 
 § 743. 
 Faulk V. Faulk, 23 Tex. 635, § 1404. 
 Faull V. Tiusman, 36 Pa. St. 108, 
 
 § 431. 
 Fauntleroy v. Hannibal. 1 Dill, 118, 
 
 § 1404. 
 Faust V. Smith, 23 N. Y, 252, § 279. 
 Fay V. Jones, 18 Barb. 340, § 432. 
 Fegenbush v. Lang, 28 Pa. St. 193, 
 
 S 426. 
 Feilden ^. Slater, L. R. 7 Eq. 523, 
 
 ^ 286. 
 Feise v. Wray, 3 East, 93, § 477. 
 Feltham v. Clarke, 1 De G. & Sm. 
 
 307, § 433. 
 Felton V. Pitman, 14 Ga. 530, § 207. 
 Fenner ?'. Buffalo & State Line R. 
 Co. 44 N. Y. 505, §§ 573, 576. 
 
 Fenno v. Sayi-e, 3 Ala. 458, §§ 205, 
 
 210. 
 Fenwick v. Macv, 2 B. Men. 469, 
 
 g 362. 
 Ferdinand v. State, 39 Ala. 706, 
 
 § 1411. 
 Ferrars v. Cheny, 3 Vern, 383, 
 
 J?i^ 46, 51. 
 Ferr'ea v. Chabot, 63 Cal. 564, § 374. 
 Fen-ier v. Buzick, 6 la. 258, §§ 347, 
 
 357. 
 Fetters v. Muncie National Bank, 
 
 34 Ind. 251, s^i; 94o, 94b. 
 Feurt V. Rowell, 62 Mo. 524, § 224. 
 Field V. Chicago, etc. R, Co. 71 111, 
 
 458. §^ 554, 555. 
 Fitield v. Elmer, 25 Mich. 48, § 72. 
 Fillebrowu r. Railroad, 55 Me. 462, 
 
 ti 553. 
 Final v. Backus, 18 Mich. 218, § 428. 
 Finch V. Ne«ham, 3 Vern. 216, 
 
 V. Pinckard, 5 111. 69, § 1119. 
 V. Shaw, 19 Beav. 500, §§ 56, 
 674. 
 First National Bank v. Christopher, 
 40 N. J. L. 435, g 683a. 
 V. Priest, 50 111. 321. g 1265. 
 V. Ryerson. 23 la. 508, g 713. 
 V. Wood. 51 Vt. 571, g 829. 
 First National Bank of Milford v. 
 Town of ililford, 36 Conn. 93, 
 gg 672, 675, 683. 
 Firth V. Thrush, 15 Eng. C. L. 242; 
 
 8 B. & C. 387, g§ 817, 990. 
 Fish V. Chapman, 2 Ga. 349, g 552. 
 V. Jackman, 19 Me. 467, §881. 
 Fisher v. Fredericks, 33 Mo. 612, 
 i;,^ 1352, 1364. 
 V. Knox, 13 Pa. St. 622, § 440. 
 r. Leland, 4 Cush. 456, § 93. 
 V. Price, 37 Ala. 407, § 936. 
 V. Sargent, 10 Cush. 250, §4807?.. 
 V. Lunnard, 25 La. An. 179, 
 §;^ 147, 149. 
 Fisk V. Newton, 1 Den. 45, § 571. 
 
 V. Potter, 2 Keyes, 64, §§ 11, 31. 
 Fitch V. Pawling, 2 H. Black. 393, 
 
 § 480)i. 
 Fitchburg Bank v. Perley, 2 Allen, 
 
 433, 5? 798. 
 Fitts V. Wliitney, 32 Vt. 589, 
 
 §§ 1300, 1341, 1342. 
 Fitzhugh V. Barnard, 12 Mich. 105, 
 
 §307. 
 Flagg V. Mann. 2 Sumn. 486, §§ 26, 
 
 274, 279, 282, 284, 684. 
 Flavey v. Northern Transp. Co. 15 
 Wis. 129, § 548.
 
 TABLE OF CASES CITED. 
 
 xxxvn 
 
 Fleming v. Beck, 48 Pa. St. 309, 
 § 1244. 
 V. Burgin, 2 Ired. Eq. 584, 
 §§ 244, 260. 
 Flickey v. Loney, 4 Baxt. 169, 
 
 §436. 
 Flight V. Barton, 3 Mylne & K. 
 
 283, §§ 30, 321. 
 Flint V. Sawyer, 30 Me. 226, § 1121. 
 Florence v. Paschal, 50 Ala. 28, 
 
 § 1367. 
 Floyd V. Ricks, 14 Ark. 286, § 1415. 
 Fl^/nt V. Arnold, 2 Mete. 619, §§ 96, 
 
 203. 
 Foard v. Womack, 2 Ala. 368, 
 
 § 1003. 
 Fogarty v. Sawyer, 23 Cal. 570, § 96. 
 V. Sparks, 22 Cal. 142, §§ 343, 
 364. 
 Fogg i\ Tenn. National Bank, 9 
 
 Heisk. 479, 8§ 672. 683, 689. 
 Poland V. BoVd, 23 Pa. St. 476, 
 
 § 1022. 
 Follain v. Lefevre, 3 Rob. (La.) 13, 
 
 § 1413. 
 Folsom V. Merch. etc. Ins. Co. 38 
 
 Me. 414. § 480??.. 
 Foot V. Stevens, 17 Wend. 483, 
 
 § 1085. 
 Forbes v. Marsh, 15 Conn. 384, § 72. 
 Ford V. Dallom, 3 Cold. 67, § 957. 
 v. Stuart, 19 Jolms. 342, § 431. 
 V. White, 16 Beav. 120, §§ 104, 
 231. 
 Forest v. Jackson, 56 N. H. 357, 
 
 § 278. 
 Foster v. Barney, 3 Vt. 60, § 394. 
 V. Blackstone, 1 My. & K. 297, 
 
 §58. 
 V. Fi-ampton, 6 B. & C. 107, 
 
 §§ 462, 464. 
 V. McDonald, 5 Ala. 376, § 843. 
 V. Mix, 20 Conn. 395. § 436. 
 V. Newbrough, 58 N. Y. 481, 
 
 §§ 1257, 1258. 
 V. Pointer, 9 Carr. & P. 718, 
 
 § 1289. 
 V. Smith, 2 Cold. 474, § 1221. 
 V. Wade, 4 Mete. (Ky.) 252, 
 
 § 1196. 
 V. White, 9 Port. 221, § 434. 
 Foster's Appeal, 3 Pa. St. 79, § 96. 
 Fourth National Bank v. Heuschen, 
 
 52 Mo. 207, §§ 751, 752. 
 Fowler v. Brantly, 14 Pet. 318, § 94. 
 
 V. Byrd, Hemst. 213, § 348. 
 Fox V. Commonwealth, 81 Pa. St. 
 511, § 1412. 
 V. Reeder, 28 Ohio St. 181, § 357. 
 
 Foye V. Leighton, 24 N. H. 29, 
 
 § 1280. 
 Frail v. Ellis, 16 Beav. 350, § 19. 
 Fralev's Appeal, 76 Pa. St. 42, 
 
 §440. 
 France v. Lucy, Ry. & M. 341, 
 
 § 1283. 
 Fi-ancis v. Norris, 2 Miles, 150, 
 
 § 1115. 
 Frankford, etc, Co. v. Philadelphia, 
 etc. R. Co. 54 Pa. St. 345, § 480/c. 
 Franklin v. Brownlow, 14 Ves. 550, 
 § 497. 
 V. Cannon, 1 Root (Conn.), 500, 
 §§ 150, 155. 
 Franz v. Orton, 
 Fraschieris v. Henriques, 6 Abb. 
 
 (N. S.), 251, § 477. 
 Frazier v. Steenrod, 7 la. 339, §1088. 
 Freeborn v. Glazier, 10 Cal. 337, 
 
 § 1192. 
 Freeman r. Thompson, 53 Mo. 183, 
 
 § 1366. 
 Freeman's Bank v. Perkins, 18 Me. 
 
 292, § 714. 
 Freere v. Hesse, 4 De G. M. & G. 
 
 495, § 240. 
 Freidley v. Hamilton, 17 S. & R. 
 
 70, § 187. 
 French v. Bank of Columbia, 4 
 Cranch, 141, § 1004. 
 V. Lancaster, 2 Dak. 346, § 1410. 
 V. Loyal Co. 5 Leigh, 627, 
 §§ 316, 368. 
 Fi-ey V. Clifford, 44 Cal. 335, § 96. 
 Frick V. White, 57 N. Y. 103, § 431. 
 Fi-ost V. Beekman, 1 Johns. Ch. 
 
 288, §§ 158, 307. 
 Fry V. Sheliee, 55 Ga. 208, § 689. 
 Frye v. Partridge, 82 111. 267, § 307. 
 Fulcher v. Royal, 55 Ga. 68, § 268. 
 Fuller V. Bennett, 2 Hare, 394, 
 §§ 29, 263. 672, 689, 690. 
 V. Hooper, 3 Gray, 334, §§ 733, 
 
 1021. 
 
 V. McDonald, 8 Me. 213, § 939. 
 
 V. Scrivner, 76 N. Y. 190, § 374. 
 
 V. Wilson, 3 Ad. & El. (N. S.) 
 
 629, § 654. 
 
 Fullerton v. Bank of United States, 
 
 1 Pet. 604, § 805. 
 Fulton V. McCracken, 18 Md. 528, 
 
 §§ 697, 715. 
 Fulton Bank v. Benedict, 1 Hall, 
 480, §§ 676, 685. 
 V. N. Y. & S. Canal Co. 4 Paige, 
 127, §§ 674, 681, 683. 
 Furber v. Caverly, 42 N. H. 74, 
 §937.
 
 XXXVlll 
 
 TABLE OF CASES CITED. 
 
 G. 
 
 Gaff V. Sims, 45 Iml. 262, § 416. 
 Gaffe V. Lewis, 68 111. 604, t, 418. 
 Gaines v. Union Tr, Co. 23 Ohio 
 
 St. 418, gi5 .'>.'55, nST. 
 Gale V. Walsh, 5 T. R. 239, 8 1001. 
 Galesburg v. Higley, 61 111. 287, 
 
 s? 480cr. 
 Galland v. Jackman, 26 Cal. 79, 
 
 ^246. 
 Gall way v. Mathew, 1 Camp. 403; 
 
 10 East, 264, i<§ .'504, 524. 
 Galpin v. Abbott, G Mich, 17, §§ 119, 
 124, 137. 
 V. Page, 1 Sawyer, 309, § 1085. 
 Galwav v. Malchow, 7 Neb. 289, 
 
 § 96." 
 Games v. Stiles, 14 Pet. 322, § 348. 
 Gammon v. Hodges, 73 111. 140, 
 
 §152. 
 Gard v. Stevens, 12 Mich. 292, 
 
 §402. 
 Gardner v. Lacklin, 4 My. & C. 
 
 129, § 435. 
 Garnett v. Yoe, 17 Ala. 74, § 1221. 
 Garrard, Ex parte, L. R. 5 Ch. D. 
 
 61, § 433. 
 Gai-rett v. Puckett, 15 Ind. 485, 
 t; 313. 
 V. St. Louis, 25 Mo. 505, § 1123. 
 Garth v. Ward, 2 Atk. 174, §§ 338, 
 
 345. 
 Gai-\^er v. Downies, 33 Cal. 176, 
 
 § 990. 
 Garvey v. Fowler, 4 Sandf. 665, 
 
 § 1397. 
 Garvin v. Wells, 8 la. 286, § 1409. 
 Gary v. Mav, 16 Ohio, 66, § 1058. 
 Gates V. Beecher, 60 N. Y. 518, 
 §837. 
 V. BushneU, 9 Conn. 530, § 348. 
 V. Johnson Co. 36 Tex. 141, 
 8 1404. 
 Gatewood v. Hart, 58 Mo. 261, 
 
 §§ 127, 133. 
 Gawtry v. Doane, 48 Barb. 148, 
 
 §957. 
 Gavoso Sav. Inst. t'. Fellows, 6 
 
 Coldw. 467, § 436. 
 Geill V. Jeremy, 22 Eng. C. L. 249, 
 
 §§ 805, 816. 
 Genmiell v. Rice, 13 Minn. 400, 
 
 § 1047. 
 General Ins. Co. v. U. S. Ins. Co. 10 
 Md. 517, §§ 113, 244, 254, 683, 
 683a. 
 General Steam, etc. Co. v. Rolt, 6 
 C. B. N. S. 550, §§ 11, 29. 
 
 George v. Kent, 7 AUen, 16, §g 208, 
 
 308. 
 
 V. Middough, 63 Mo. 549, g 1140. 
 
 V. Wood, 9 Allen, 80, §g 203. 
 
 206. 
 
 Gemon v. Bestick, 15 La. An. 697, 
 
 § 1097. 
 GerrLsh v. Pike, 36 N. H. 510, § 1235. 
 Gei-son v. Pool, 31 Ai-k. 85, § 49. 
 Gibbon v. Coggan, 2 Camp. 188, 
 § 956. 
 V: Paynton, 4 Burr. 2298, § 542. 
 Gibbs V. Cannon, 9 S. «fc R. 198, 
 §417. 
 V. Cobb, 7 Rich. Eq. 54, §§ 30, 
 65. 
 Gibcrt V. Peteler, 38 N. Y. 165, 
 
 § 307. 
 Gibler v. Trimble, 14 Oliio St. 323, 
 
 §g 364, 365. 
 Gibson v. Choteau, 39 Mo. 536, 
 § 219. 
 V. Colt, 7 Johns. 390, §§ 660, 
 
 662. 
 V. Culver, 17 Wend. 305, §§574, 
 
 576. 
 V. Gibson, 20 Pa. St. 9, § 1225. 
 V. Ingo, 6 Har. 112, § 30. 
 V. Roll. 30 111. 173, t;§ 1074, 1130. 
 Gilbert v. Dennis, 3 INIet. 495, § 782. 
 V. Flint, etc. R. Co. 51 Mich. 
 488; 47 Am. Rep. 592, 
 § 1417. 
 V. Jess, 31 Wis. 110, § 12. 
 Gilclu-ist V. DonneU, 53 Mo. 591, 
 
 §§ 843, 846, 915. 
 Gill V. Cubitt, 3 B. & C. 466, § 82. 
 Gillespie v. Edmonston, 11 Humph. 
 553, §§ 384, 843. 
 V. Reed, 3 McLean, 377, § 128. 
 Gillet V. Fairchild, 4 Den. 80, § 438, 
 Gilman v. Hamilton, 16 111. 225, 
 
 §§ 334, 359. 
 Giudrat v. Mechanics' Bank, 7 Ala. 
 
 324, §§ 703, 913. 
 Givens v. Merchants' National 
 
 Bank, 85 111. 443, § 975. 
 Glascock V. Robai-ds, 14 Mo. 350, 
 
 § 593. 
 Glasgow V. Pratte, 8 Mo. 336, 
 
 g§ 097, 706, 713. 
 Glasscock v. Bank of Missouri, 8 
 
 Mo. 443, § 706. 
 Glazebrook v. Ragland, 8 Gratt. 
 
 344, § 101. 
 Gleadell v. Thompson, 56 N. Y. 194, 
 
 §564. 
 Gleason v. Gleason, 8 Cush. 32, 
 §586.
 
 TABLE OF CASES CITED. 
 
 XXXIX 
 
 Gleason v. Walsh, 43 Me. 397, 
 
 § 4S0n. 
 Glencoe v. People, 78 El. 382, 
 
 § 1363. 
 Glenn v. Davis, 35 Md. 215, § 96. 
 
 V. Glenn, 17 la. 498, i^ 1345. 
 Gliddon v. Hunt, 24 Pick. 231, 
 
 §§ 203, 231a. 
 Glidewell v. Spaugli, 26 Ind. 319, 
 
 §§ 65a, 273. 
 Globe, The, 2 Blatch. C. Ct. 427, 
 
 § 1136. 
 Goddard v. Pratt, 16 Pick. 412, 
 § 488.. 
 V. Lyman, 14 Pick. 268, § 87. 
 V. Sawyer, 9 Allen. 78, § 272. 
 Godfrey v. Disbrow, Walk. Ch. 
 260, § 96. 
 V. Turnbull, 1 Esp. 371, § 513. 
 Goelet V. McManus, 1 Hun, 306, 
 
 §§ 203, 231a. 
 Gold V. Death, Hobart, 92, § 693. 
 Goldsmith v. Sawyer, 46 Cal. 209, 
 
 i< 1408. 
 Good V. Martm, 95 U. S. 95, § 87. 
 Goodav V. Corhes, 1 Strob. (S. C.) 
 
 199, ■§ 1235. 
 Goodloe V. Bartlett, 5 McLean, 186, 
 
 § 1246. 
 Goodman v. Cloudman, 43 Me. 577, 
 §96. 
 V. Harvey, 4 Ad. & El. 870, 
 
 §§ 80, 83, 94. 
 V. Norton, 17 Me. 381, § 805. 
 V. Simonds, 20 How. 343, 
 gg 30rt, 80, 85, 372, 673a. 
 Goodnovigh v. Oshkosh, 24 Wis. 
 
 549 ; 1 Am. Rep. 202, § 480g. 
 Goodnow V. Warren, 122 Mass. 82, 
 
 §767. 
 Goodright v. Cordwent, 6 T. R. 219, 
 
 § 648. 
 GoodseU V. Sullivan, 40 Conn. 83, 
 
 §202. 
 Goodtitle v. Woodward, 3 B. & Aid. 
 
 689, §§ 616, 698, 700. 
 
 Goodwin v. McGehee, 15 Ala. 232, 
 
 §348. 
 
 V. Railroad, 58 Barb. 195, § 568. 
 
 Gordon v. Gordon, 3 Sw. 400, § 65a. 
 
 V. Montgomery, 19 Ind. 110, 
 
 §§ 933, 1404. 
 V. Sizer, 39 Miss. 805, §§ 15, 
 313. 
 Gore V. Brazier, 3 Mass. 523, § 480c. 
 Gorham v. Luckett, 6 B. Mon. 146, 
 
 § 1187. 
 Gossler v. Schepeler, 5 Daily (N. 
 Y.), 476, §§ 477, 479. 
 
 Gott V. Dinsmore, 111 Mass. 45, 
 
 §553. 
 Goudy V. Hall, 30 111. 109, § 1138. 
 Goiiger V. Jolly, 1 Holt, 317, § 540. 
 Gould V. Cayuga Co. etc. Bank, 56 
 How^ Pr. 505, § 683&. 
 V. Chase, 16 Johns. 226, § 431. 
 V. Day, 94 U. S. 405, § 143a. 
 V. Hill, 2 Hill, 623, § 552. 
 Gove V. Vining, 7 Mete. 212, § 940. 
 Goveneur v. Lynch, 2 Paige, 300, 
 
 §§ 6oa, 103, 278. 
 Governors of Grey Coat Hosp. v. 
 Westminster, etc. Com'rs, 1 De G. 
 & J. 531, § 240. 
 Gowan i: Jackson, 20 Johns. 175, 
 
 §§ 733, 751, 1021. 
 Gower v. Doheney, 33 la. 36, § 97. 
 Grace v. Adams Ex, Co. 100 Mass. 
 
 505, §§ 553, 554. 
 Grafton, The Ship, Olcott's R, 48, 
 
 §563. 
 Gragg V. Richardson, 25 Ga. 566, 
 
 § 480c. 
 Graham i\ Anderson, 42 HI. 514, 
 §§ 1412, 1414. 
 V. King, 50 Mo. 22; 11 Am. 
 
 Rep. 401. § 1066. 
 V. Meeks, 1 Or. 325, § 310. 
 V. Oldis, 1 Post. & F. 262, 
 
 • § 1282. 
 V. Samuel, 1 Dana, 166, §§112, 
 
 125. 
 r. Wilhams, 21 La. An, 594, 
 § 1405. 
 Grand Bank v. Blanchard, 23 Pick. 
 
 305, § 794. 
 Grand Tower Mining, etc. Co. v. 
 
 Schermer, 64 111. l06, § 1376. 
 Grandin v. Anderson, 15 Ohio St. 
 286, § 208. 
 V. Leroy, 2 Paige, 509, § 94a. 
 Granger v. Brown, 11 Cusli. 191, 
 § 633. 
 V. Clark, 22 Me. 128, § 1085, 
 Granite Bank v. Ayers, 16 Pick. 
 
 392, § 916, 
 Grant v. Bissett, 1 Cai. Cas. 112, § 97. 
 V. Cole, 8 Ala. 519, g 074. 
 V. EUicott, 7 Wend."227, § 94a. 
 V. Lexington Fire Ins. Co. 5 
 
 Ind. 23, § 480?i, 
 V. Munt, Coop. 173, § 65a. 
 V. Spencer, 1 Mont. 136, § 1026. 
 V. White, 43 Mo. 285, §§ 581, 
 
 594. 
 V. White, 6 Cal. 55, § 1331. 
 Grattan v. Wiggins, 23 Cal. 16, 
 §374.
 
 xl 
 
 TABLE OF CASES CITED. 
 
 Graul V. Strutzel, 53 la. 71-2, § 738. 
 Graves r. Graves, 6 Gray, 391, 
 Sg 112. 119, 12-1. 
 V. Less, 11 Exch. 642, g 480o. 
 V. Merrv, G Cow. 701, § 513. 
 V. Ward. 2 Dnv. 301, § 9fl. 
 Gray v. Bank of Kentucky, 29 Pa. 
 St. 635. J5 946. 
 r. Bell. 3 Rich. 71. g 738. 
 V. Hawes. 8 Cal. 562, § 1137. 
 V. Larriniore, 2 Abb. (U. S.) 
 
 542, i5 1031. 
 V. Nunan, 63 Cal. 220, § 1201. 
 Grav"s Adm'rs v. Cruise, 36 Ala. 
 
 5o9, § 225. 
 Great Falls Co. v. Worster, 15 N. 
 
 H. 412, § 297. 
 Great Western R. v. Wheeler, 20 
 
 Mich. 419, § 689. 
 Greaves r. Tofield, L. R. 14 Ch. D. 
 
 563, § 231. 
 Grellet v. Heilshorn, 4 Nev. 526, 
 
 §96. 
 Greely v. Hunt. 21 Me. 455, § 738. 
 Green v. Carrington, 16 Ohio St. 
 548. ;^ 165. 
 V. Daubv, 12 Vt. 338, g 4S0g. 
 V. Deakin. 2 Stark. 347, J; 528. 
 V. Deal. 4 Hun. 703, § 197. 
 V. Drinker, 7 W. & S. 440, 
 
 §§ 112. 231. 
 V. Earlv.39M(I. 223, § 307. 
 V. Railroad, 41 la. 410, § 454. 
 V. Slavter, 4 Johns. Ch. 38, 
 
 <<g 10. 341, 3.51. 
 
 V. Thompson. 33 la. 293, § 417. 
 
 V. AVarnick, 64 N. Y. 220, § 197. 
 
 V. White, 7 Blackf . 242, 55 347. 
 
 Green, etc. Navigation Co. v. 
 
 Marshall. 48 Ind. 596, § 573. 
 Greene v. Farley, 20 Ala. 323. 
 
 §§ 714, 912. 
 Greenfield v. Edwards, 2 De G. J. 
 
 &S. 582, §§31, 65a, 307. 
 Greenleaf v. Edec, 2 Minn. 264, 
 
 § 239, 
 Greenlow v. Williams, 2 Lea, 533, 
 
 §§ 480c, 480d. 
 Greenman v. Harvey, 53 111. 368, 
 
 § 1377. 
 Greenslade v. Dare, 20 Beav. 284, 
 
 §§ ", 11. 
 Gregory v. Haynes, 13 Cal. 591, 
 
 J5 374. 
 Grewell v. Henderson, 5 Cal. 465, 
 
 § 1069. 
 Griffin v. Cunningham, 20 Graft. 
 31, § 146. 
 V. Gofif, 12 Johns. 423, § 975. 
 
 Griffin v. Pugh, 44 Mo. 32G, § 72. 
 V. Wilcox, 21 Ind. 370. ij 428. 
 r. Sheffield. 38 Miss. ;'.59, § 1268. 
 Griffing v. Gibb, 2 Black. 519, 
 
 4^ 1404. 
 Griffith V. Griffith. 1 Hoff. Ch. 153. 
 
 ti^ 15, 47. 313, 351. 
 Grignon's Lessees v. Astor, 2 How. 
 
 319, § 1085. 
 Grim v. Curlev. 43 Cal. 250. § 280. 
 Grimes v. Fall, 15 Cal. 63, i? 1257. 
 Grimstone v. Carter, 3 Paige. 421, 
 
 4;,^ 103, 119, 149, 188, 279, 299. 
 Grinman v. Walker, 9 la. 426, 
 
 §§ 786, 830. 
 Grinnan v. Baton Rouge Co. 7 La. 
 
 An. 638, § 516. 
 Griswold v. Smith, 10 Vt. 452, 
 g§ 44, 113. 
 V. Waddington. 16 La. An. 484; 
 15 Johns. 57. gg 752, 981. 
 Grobr. Cushman, 45111 119, § 1404. 
 Grocers' Bank v. Penfield, 7 Hun, 
 
 279, t^ 946. 
 
 Groff V. Ramsey. 19 Minn. 44, § 278. 
 
 Grosvenor v. Atlantic Fire Ins. Co. 
 
 17 N. Y. 319. § 445. 
 
 V. Green. 28 L. J. Cii. 173, § 35. 
 
 r. Stone. 8 Pick. 79, §§ 730, 731. 
 
 Groton v. Dallhemi, 6 Me. 476, 
 
 !^ 1018. 
 Grout V. Hill, 4 Grav, 361, § 466. 
 Guilford v. Smith, 30 Vt. 49, § 464. 
 Guion V. Knapp, 6 Paige, 35, gjj 203. 
 
 308. 331. 
 Gunn V. Sinclair, 52 Mo. 327, 8 611. 
 Gunson v. Metz, 1 B. & C. 193, § 962. 
 Gwinn v. Turner, 18 la. 1, § 167. 
 
 H 
 
 Haas V. Weinhagen, 30 Wis. 326, 
 
 § 1210. 
 Hackett v. Martin, 8 Me. 77, §§ 431, 
 
 438, 442. 
 Hackwith v. Damron, 1 Monr. 235, 
 
 §g 15, 277, 305, 308, 310. 
 Hadden v. Spader, 20 Johns. 554, 
 
 §§ 342a, 353. 
 Haescig v. Brown, 34 Mich. 503, 
 
 s^93. 
 Hagtlirop V. Hook, 1 Gill & J. 270, 
 
 §310. 
 Halm V. Kelly, 34 Cal. 391, § 1085. 
 Hailes v. State, 9 Tex. App. 170, 
 
 § 1408. 
 Halbert v. Skyles, 1 A. K. Marsh, 
 
 368, §§ 1408, 1409.
 
 TABLE OF CASES CITED. 
 
 xli 
 
 Haley v. WUliams, 8 Sm. & M. 487, 
 
 § 1184. 
 
 HaU V. Brown, 58 N. H. 93. § 1404. 
 
 V. Chenev, 36 N. H. 26, § 558. 
 
 V. Hale, 8 Conn. 336, §§ 90, 94. 
 
 V. Hickman, 2 Del. Ch. 318, 
 
 §431. 
 V. McDuff, 24 Me. 311. § 20S. 
 V. Pillow, 31 Ai-k. 32, §§ 77, 
 
 224. 
 V. Eobinson, 2 Comst. (N. Y.) 
 
 293, § 428. 
 V. Smith, 14 Ves. 426, § 279. 
 V. Wadsworth, 28 Vt. 410, § 578. 
 HaUeck v.- Moss, 17 Cal. 339, g 1129. 
 Halley v. Oldham, 5 B. Mon. 233, 
 
 §§ 232, 266. 
 Hallowell v. Cuny, 41 Pa. St. 322, 
 
 §819. 
 Hall's Heirs v. Hall, 2 Eoot, 383, 
 
 §113. 
 Halsey v. Carter, 6 Rob. (N. Y.) 535, 
 
 § 1199. 
 Halstead v. Bank of Kentucky, 4 J. 
 
 J. Marsh. 554, §g 113. 203. 
 Ham V. Ham, 39 Me. 363. § 1410. 
 Hamilton v. Boggess, 63 Mo. 233, 
 §211. 
 V. Fowlkes, 16 Ark. 340, § 96. 
 V. Lycoming Mat. Ins. Co. 5 Pa. 
 
 St. 339, § 383. 
 V. Marks, 52 Mo. 78 ; 63 Mo. 167, 
 
 §§ 80, 87, 88. 
 V. Nutt, 34 Conn. 501, § 310. 
 V. Eoyse, 2 Sch. & Lef. 315, 
 §§ 7, 313, 314. 
 Hammond v. Gilmore, 14 Conn. 479, 
 §§418, 419. 
 V. Hopping, 13 Wend. 505, 
 § 1266. 
 Hanauer v. Doane, 12 Wall. 842, 
 
 § 92a. 
 Hanbury v. Litchfield, 2 My. & K. 
 
 629, §§ 281, 282, 284. 
 Hancock v. Beverly, 6 B. Mon. 531, 
 
 §219. 
 Hankinson v. Barbour, 29 111. 80, 
 
 §§11, 246. 
 Hanly v. Morse, 32 Me. 287, §§ 44, 
 
 65a, 277. 
 Hanrick v. Thompson, 9 Ala, 409, 
 
 § 292. 
 Hansen v. Fish, 27 Wis. 535, § 1188. 
 Harang v. Plattsmier, 21 La. An. 
 
 426, § 97. 
 Harbeck v. Toledo, 11 Ohio St. 219, 
 
 § 1127. 
 Hardaway v. Semmes, 24 Ga. 305, 
 §325. 
 
 Harden v. Boyce, 59 Barb. 435, 
 
 §980. 
 Hardin v. Harrington, 11 Bush, 
 367, §§ 60, 61. 
 V. Kretsinger, 17 Johns. 393, 
 § 1266. 
 Harding v. Stafford, Say. Rep. 133. 
 
 § 1199. 
 Hardy v. Reeves, 5 Ves. 426, § 65a. 
 V. Summers, 10 Gill & J. 31(5, 
 §§ 44, 273. 
 Hargen v. Bemis, 1 Thomp. & C. 
 
 460, § 931. 
 Hargreaves v. Rothwell, 1 Keen. 
 
 154, S 689. 
 Harker v. Anderson, 21 Wend. 372, 
 
 § 1387. 
 Harlan v. Seaton, 18 B. Mon. 312. 
 
 §§ 219, 221. 
 Harmon v. State, 18 Ind. 450, 
 
 t- 1416. 
 Harnden v. New Haven, etc. Co. 
 
 27 Conn. 158, § 480c^. 
 Harper v. Reno, 1 Freem. Ch. 323, 
 
 §125. 
 Harral v. Gray, 10 Neb. 189, § 98. 
 Harrington v. Allen, 48 Miss. 493, 
 § 97. 
 V. Fortner, 58 Mo. 468, S 140. 
 V. Loomis, 10 Minn. 366, i? 1043. 
 V. Slade, 22 Barb. 161, § 341. 
 Harris v. Arnold, 1 R. I. 125, 
 §§ 206, 273. 274. 
 V. Barwell, 65 N. C. 534, § 431, 
 V. Bell, 10 S. & R. 39, § 231. 
 V. Brown, 63 Me. 51, § 1234. 
 V. Carter, 3 Stew. 233, §§ 44, 
 
 341. 
 V. Ferrand, Hardres, 36, § 1387. 
 V. Fly, 7 Paige, 421, § 324. 
 V. Fi-ink, 2 Lans. (N. Y.) 35, 
 
 § 593. 
 V. Grodner, 42 Mo. 159, § 1057. 
 V. Memphis Bank, 4 Humph. 
 
 519, g 923. 
 V. Pratt, 17 N. Y. 249, §§ 464. 
 
 466. 
 V. Robinson, 4 How. 336, §§821, 
 
 921. 
 V. Tumbridge, 8 Abb. N. C. 
 
 291, § 480o. 
 V. Whitcomb, 4 Gray, 433, 
 § 1257. 
 Harrisburg Bank v, Meyer, 6 S. & 
 
 R. 537, § 92a. 
 Harrison v. Bailey, 99 Mass. 620, 
 § 1397. 
 V. Cachelin, 23 Mo. 117, §§ 191, 
 308.
 
 xlii 
 
 TABLE OF CASES CITED. 
 
 Harrison v. Farmers' Bank of Vir- 
 ginia, 6 W. Va. 1, i< 146. 
 
 V. London, Brighton & S. Coast 
 R. Co. 2 B. & S. 122, ^ 542. 
 
 17. Ruscoe, 15 M. & W. 231, 
 
 V. Trader, 29 Ark. 85, § 1000. 
 Harrold v. Simons. 9 Mo. 326, § 103. 
 Harrop i\ Landers, etc. Co. 45 
 
 Conn. 501, JJ 436. 
 llarryman v. Collins, 18 Beav. 19, 
 
 5i§ 13, 34. 
 Hart V. Albany, 3 Paige, 213, 
 § 480h. 
 V. Alexander, 2 M. & W. 484, 
 
 § 485. 
 V. Carpenter, 24 Conn. 427, § 72. 
 V. Chalker, 14 Conn. 77, gg 149, 
 
 178. 
 
 V. Eastman. 7 Minn. 74. § 738. 
 
 V. Farmers' & Mechanics' Bank, 
 
 33 Vt. 252, §§ 191, 673a, 
 
 674, 085, 687, 689. 
 
 V. Gray, 3 Sumn. 389, §§ 1341, 
 
 1342. 
 V. Robinet, 5 Mo. 11, § 1267. 
 Hartford Bank v. Hart, 3 Day, 491, 
 § 683. 
 V. Steadman, 3 Conn. 489, 
 g§ 795, 818. 
 Hartley v. Case, 1 Carr. & P. 555, 
 
 §§ 780, 784. 
 Hai-tniyer v. Gates, 1 Root, 61, 
 
 §155. 
 Harvey v. Fisk, 9 Cal. 93, § 1086. 
 V. Mitchell, 2 Mood. & R. 366, 
 § 1274. 
 Harwood v. Jarvis, 5 Sneed, 375, 
 § 1016. 
 V. Smethurst, 30 N. J. L. 230, 
 § 1172. 
 Haskell v. Bartlett, 34 Cal. 281, 
 § 1125. 
 V. Boardman, 8 Allen, 38, 
 
 §g 946, 950. 
 V. Jones, 86 Pa. St. 173, § 94a. 
 V. State, 31 Ark. 91, § 49. 
 Hassett v. Rust, 64 Mo. 325, §§1155, 
 
 1297. 
 Hadtings v. Cutler, 24 N. H. 481, 
 §§ 4, 7, 12, 073a. 
 V. Pepper, 11 Pick. 41, § 480a. 
 Hatch V. Bigelow, 39 lU. 546, §§ 280, 
 293. 
 V. Dennis, 10 Me. 244, § 431. 
 V. Searles, 24 L. J. Ch. 22, § 80. 
 V. Taylor, 10 N. H. 547, g 660. 
 Haughwout V. Mui-phy, 21 N. J. 
 Eq. 118, § 348. 
 
 Havens r. Adams, 8 Allen, 363, 
 § 339. 
 V. Bliss, 26 N. J. Eq. 363, §273. 
 V. Dale, 18 Cal. 359, § 288. 
 V. Sherman, 42 Barb. 636, 
 §§ 1075, 1130. 
 Hawkes v. Phillips, 7 Gray, 284, 
 
 §87. 
 Hawks V. Salter, 4 Bing. 715, 
 
 4$^; 805, 813, 822. 
 Hawley v. Cramer, 4 Cow. 717, 
 
 §§ 30, 61. 
 Hawthorn v. Hoboken, 32 N. J. L. 
 
 172, § 1404. 
 Hayden v. Boyce, 59 Barb. 425, 
 §983. 
 V. Bucklin, 9 Paige, 512, §§ 350, 
 
 357. 
 
 V. Dunlap, 3 Bibb, 216, § 1087. 
 
 Haynes v. Birks, 3 Bos. & P. 599, 
 
 §§ 781, 817. 
 
 V. Brown, 36 N. H. 568, § 676. 
 
 V. Calderwood, 23 Cal. 409, 
 
 §374. 
 V. Meeks, 10 Cal. 110, § 1129. 
 V. Seachrost, 13 la. 455, § 97. 
 Hays V. Davis. 18 N. H. 600, g 143a. 
 r. Lewis, 21 Wis. 663, § 1062. 
 V. McGuire. 8 Yerg. 92, § 96. 
 V. Morrille, 14 Pa. St. 48, § 461. 
 V. Riddle, 1 Sandf. 246. § 1268. 
 Hayton v. Hope, 3 Mo. 58, § 1211. 
 Haywood v. Nat. Ins. Co. 52 Mo. 
 181, §§ 674, 688. 
 V. Russell, 44 Mo. 252, §§ 1058, 
 1078. 
 Hazard v. White, 26 Ark. 155, 
 
 §956. 
 Hazleton Coal Co. v. Ryerson, 20 
 
 N. J. L. 129, § 883. 
 Hazlett V. Poultuey, 1 Nott &,M. 
 
 466, § 714. 
 Head v. Fordyce, 17 Cal. 149, § 374. 
 Heaston v. Cimi. etc. R. Co. 16 Ind. 
 
 275, § 1404. 
 Heath, Ex liarte, 2 Ves. & B. 240, 
 
 §^ 997, 999. 
 Heatly v. Finster, 2 Jolms. Ch. 
 
 158, § 341. 
 
 Heaton v. Findlay, 12 Pa. St. 304, 
 § 1227. 
 V. Hulbert, 4 Bl. 489, §§ 420, 
 422. 
 Hedges v. Raili-oad, 49 N, Y. 223, 
 
 § 5^7. 
 Heermans v. Ellsworth, 64 N. Y. 
 
 159, § 8. 
 
 Heistner v. Fortner, 3 Binn. 40, 
 §§ ua, 125.
 
 TABLE OF CASES CITED. 
 
 xliii 
 
 Helgear v. Hawke, 5 Esp. 72, §§ 653, 
 
 663. 
 Helms V. Chadbourne, 45 Wis. 60, 
 
 §?; 10, 65a. 
 Hempstead v. Darbv, 2 Mo. 25, 
 
 § 1211. 
 Henderhen v. Cook. 66 Barb. 21, 
 
 §i$ 668, 691. 
 Hendley v. Baccus, 32 Tex. 328, 
 
 § 1372. 
 Hendrick v. Davis, 27 Ga. 167, 
 
 § 1086. 
 Hendrickson's Appeal, 24 Pa. St. 
 
 363, § 188. 
 Henlj^ V. Gore, 4 Dana, 133, § 376. 
 Heunen v. New Orleans & C. R. 
 
 Co. 20 La. Ann. 544, § 1203. 
 Hennessey v. Stewart, 31 Vt. 486, 
 
 § 1257. 
 Henning v. Fisher. 6 W. Va. 238, 
 
 § 146. 
 Henning's Case, 2 Croke, 432. § 1387. 
 Henry v. Morgan, 3 Binn. 497, 
 g§ 693, 694. 
 V. Eaiman, 25 Pa. St. 354, §§ 60, 
 265. 
 Hensley v. Tarpey, 7 Cal. 288, 
 
 § 1417. 
 Henthorn v. Doe, 1 Blackf. 157, 
 
 § 1405. 
 Herbage v. McEntee, 40 Mich. 337, 
 
 §87. 
 Herd man v. Short, 18 111. 59, §1074. 
 Hermon v. Denning, 44 Conn. 124. 
 
 § 176. 
 Herndon v. Kimball, 7 Ga. 432, 
 
 §112. 
 Herrick v. Atvvood, 3 De G. & J, 
 
 31, § 13. 
 Herrin v. Libbey, 36 Me. 350, 
 
 §§ 1243, 1321. 
 Herrington v. Herrington, 27 Mo. 
 560, § 357. 
 V. McCuUum, 73 III. 476, § 357. 
 Herschfeld v. Dexel, 12 Ga. 582, 
 
 § 1405. 
 Hersey v. Turbett, 37 Pa. St. 418. 
 
 §§ 339, 342a. 
 Hervey v. Smith, 23 Beav. 299, 
 
 §§ 16, 35, 65o. 303. 
 Hesters v. Petrovic, 1 Rob. (La.) 
 
 119, §§ 745, 747. 
 Hetherington v. Clark, 30 Pa. St. 
 
 393, §§ 305, 323. 
 Hetzel V. Barber, 69 N. Y. 1, § 214. 
 Hevener v. Heist, 9 Pliila. 274, 
 
 § 1358. 
 Hewes v. Wiswall, 8 Greenl. 94, 
 
 §§ 374, 288, 391, 294. 
 
 Hewitt V. Loosemore, 9 Hai-e, 449, 
 §§ 47, 690. 
 V. Wetherby, 57 Mo. 376, § 1347. 
 Hibernian Bank v. Everman, 53 
 
 Miss. 500, § 372. 
 Hickerson v. Raignell, 3 Heisk. 329, 
 
 §94a. 
 
 Hickman v. Dale, 7 Yerg. 149, §343. 
 
 Hicks V. Hankin, 4 Esp. 114. §656. 
 
 V. Skinner, 71 N. C. 539, § 224. 
 
 Hickson v. Callis, 1 Jones & L. 94, 
 
 § 241. 
 Hidden v. Bishop, 5 R. I. 29, § 94a. 
 Hiern v. Mill, 13 Ves. 114. §§ 47, 
 
 50, 56. 
 Higgins V. Shaw, 3 Dr. & War. 356, 
 
 § 344. 
 liightower v. Ivy, 3 Port. 308, § 939. 
 Hildreth v. Lowell, 11 Gray, 345, 
 
 § 1343. 
 Hill V. Bacon, 43 111. 477, § 1416. 
 V. Beatty, 61 Cal. 393, § 1203. 
 V. Calvin. 4 How. (Miss.) 331, 
 
 § 390. 
 V. Faison, 37 Tex. 438, § 1069. 
 V. Grant, 33 Tex. 133, § 1368. 
 V. Humphreys, 5 W. & S. 133, 
 
 § 574. 
 V. Ivi-oft, 29 Pa. St. 186, § 372. 
 V. Manchester, etc. Co. 5 B. & 
 Ad. 874; 2 Nev. & M. &73, 
 § 676. 
 V. Martin, 12 Mart. 177, § 945. 
 V. Mason, 38 Me. 461, § 1121. 
 V. McCarter, 27 N. J. Eq. 41, 
 
 § 203. 
 V. Meeker, 24 Conn, 211, § 319. 
 V. Norris, 3 Stew. & P. 114, 
 
 § 1013. 
 V. Norveil, 3 McLean, 583, 
 
 § 907. 
 V. Oliphant, 41 Pa. St. 364, 
 
 § 343. 
 V. Planters' Bank, 3 Humph. 
 
 670, § 717. 
 V. Simpson, 7 Ves. 153, §§ 11, 
 
 333. 
 V. Vavrell, 3 Me. 233, § 909. 
 Himes v. Keighblingher, 14 111. 469, 
 
 § 143a. 
 Himmelman v. Hoadley, 44 Cal. 
 
 213, § 1412. 
 Hinckley v. Beckwith, 23 Wis. 328, 
 
 § 1411. 
 Hhide i\ Vattier, 1 McLean, 110; 7 
 
 Pet. 252, §§ 8, 30, 65. 
 Hinds V. Allen, 34 Conn. 195, §480c. 
 Hine ('. Allely, 4 B. & Ad. 624, 
 § 781.
 
 xliv 
 
 TABLE OF CASES CITED. 
 
 Hlne V. Dodd, 2 Atk. 275, g§ 11, 245. 
 
 V. Robbins. 8 Conn. U2, § 113. 
 
 Hinman t". Hinman, 4 Coun. 575, 
 
 §113. 
 Hiorns v. Holton, 16 Beav. 259, 
 
 § 690. 
 Hi]ies V. Cocliran, 13, Ind. 175, 
 
 J^ 1236. 
 Hirscli r. Quaker Citv, 2 Disney, 
 
 144, g 570. 
 Hiscock V. Phelps, 2 Lans. 106, 
 
 t; 1218. 
 
 Hix V. Coi-nelison, 7 Cold. (Tenn.) 
 
 299. § 1194. 
 Hizor V. State, 12 Ind. 330, § 1412. 
 Hoadley v. N. T. Co. 115 Mass. 304, 
 
 § 553. 
 Hobart v. Hilliard, 11 Pick. 143, 
 
 § 1390. 
 Hobbs V. Clements, 32 Me. 67, 
 
 § 111'. 
 V. Memphis Ins. Co. 1 Sneed, 
 
 444, § 444. 
 V. Spiegleberg, 5 W. Coast Rep. 
 327, § 113. 
 Hobson V. Stevenson, 1 Tenn. Ch, 
 
 203, i^ 436. 
 Hodges V. Brett, 4 G. Green, 345, 
 
 § 1365. 
 Hodgkins v. Montgomery Co. Ins. 
 
 Cd: 34 Barb. 2l;i, J^ 689. 
 Hodgson i\ Butts, 3 Cranch, 140, 
 ^ 125. 
 V. Dean, 2 Sim. & Stu. 227. 
 §g 104, 106. 
 Hoffman r. State, 12 Tex. App. 406, 
 § 1410. 
 V. Strobecker, 7 Watts, 90, 
 §226. 
 Hoffmann v. Smith, 1 Cai. 160, 
 
 g 1003. 
 Hogan V. Black, 4 Pac. Rep. 943, 
 
 § 431. 
 Hogden v. Guttery, 58 111. 431, § 97. 
 Holbrook v. Dickenson, 56 111. 497, 
 §97. 
 V. Vose. 6 Bosw. 76 ; 4 L. Reg. 
 (N. S.)602, §^464, 472. 
 Holbrow r. Wilkins, 1 B.. & C. 10, 
 
 §§ 401, 423. 
 Holdanev. Butterworth, 5 Bosw. 1, 
 
 §515. 
 Holden v. N. Y. & Erie Bank, 6 
 Rep. 692 ; 72 N. Y. 286, §§ 672, 
 674, 683, 687. 689. 
 Holland v. Turner, 10 Conn. 308, 
 
 §?; 946, 951. 
 Hollidavr. Franklin Bank, 16 Ohio, 
 533, §"231a. 
 
 Hollister v. Nowlen, 19 Wend. 234, 
 
 § 552. 
 Holman v. Eitei-man, 83 lU. 92, 
 § 1161. 
 V. Patterson's Heirs, 29 Ark. 
 
 357, § 339. 
 V. Whitney, 19 Ala. 703, § 943. 
 Holme V. KanJiper, 5 Binn. 469, 
 
 § 94b. 
 Holmes i\ Furguson, 1 Oreg. 220, 
 §310. 
 V. Powell, 8 De G. M. & G. 
 
 572, §g 44, 65a, 279, 288. 
 V. Stout, 10 N. J. Eq. 492, §§288, 
 
 290. 
 
 V. Weed, 24 Barb. 546, § 480hi. 
 
 Hoist V. Pownal. 1 Eap. 240. § 462. 
 
 Holt V. Miors, 9 CaiT. & P. 199, 
 
 § 1287. 
 
 V. Penobscot, 56 Me. 15, § 4S0sr. 
 
 Home Ins. Co. v. Green, 19 N. Y. 
 
 518, § 837. 
 Home Life Ins. Co. v. Pierce, 75 
 
 111. 426, § 6G8. 
 Homer v. Grosholz, 38 Md. 521, 
 
 §96. 
 Honore's Ex'r v. Bakewell, 6 B. 
 
 Mon. 67, § 330. 
 Hood V. Fahnestock, 1 Pa. St. 470 
 (8 Watts, 489), §§ 283, 674, 688, 
 692. 
 Hooker r. Hammel, 7 Neb. 234, 
 
 §96. 
 Hoopes r. Knell, 31 Md. 550, § 101. 
 Hoover v. Tibbitts, 13 Wis. 79, § 466. 
 
 V. Wise, 91 U. S. 308, § 686. 
 Hope V. Liddell, 21 Beav. 183, §§ 15, 
 
 313, 324. 
 H«pes V. Alder, 6 East, 16, § 705. 
 Hopgood V. Earnest, 3 De G. J. & 
 
 S. 116, §§47, 65a. 
 Hopkins v.' Gerrard, 7 B. Mon. 312, 
 §§ 246, 299. 
 V. Kansas Citv, etc. R. Co. 79 
 
 Mo. 98, §1411. 
 V. Liswell, 12 Slass. 52, § 956. 
 V. McLaren, 4 Cow. 667, § 348. 
 Hopkirk v. Page, 2 Brock. 20, §§ 981, 
 
 1004, 1006. 
 Hopley V. Dufresne, 15 East, 275, 
 
 § 975. 
 Hoppin V. Doty, 25 Wis. 573, § 23. 
 Hoppbck V. Johnson, 14 Wis. 303, 
 
 8 674. 
 Horace v. Chicago, etc. R. Co. 38 
 
 Wis. 463, § 1409. 
 Horn V. Jones, 28 Cal. 194, §§ 369, 
 
 374. 
 Home V. Howell, 46 Ga. 9, § 280.
 
 TABLE OF CASES CITED. 
 
 xiv 
 
 Horton v. Bayne, 52 Mo. 531, §§ 80, 
 
 87. 
 Hotchkiss V. Hunt, 49 Me. 213, 
 
 §72. 
 Hough V. Gray, 19 Wend. 202, 
 
 §§ 420, 422. 
 Houghtaling v. Ball, 19 Mo. 84, 
 
 § 1405. 
 Houghton V. Bartholomew, 10 
 Mete. 138, § 96. 
 V. Ely, 26 Wis. 181, § 87. 
 Housatonic Bank v. Martin, 1 Mete. 
 
 308, § 683. 
 House V. Adams, 48 Pa. St. 261, 
 
 8 QS^ 
 Housego V. Cowne, 2 M. & W. 348, 
 
 g§ 831, 832. 
 Houseman v. Mut. Build, etc. 
 
 Ass'n, 81 Pa. St. 256, § 688. 
 Houston, etc. R. Co. v. Hodde, 42 
 
 Tex. 467, ^§ 571. 573. 
 Hovey v. Blanchard, 13 N. H. 145, 
 
 §§ 672, 689, 691. 
 Howard v. Chase, 104 Mass. 249, 
 § 313. 
 V. Great W. Ins. Co. 109 Mass. 
 
 384, § 480)1. 
 V. Ives, 1 Hill, 263, §§ 715, 795, 
 
 818. 
 V. Kennedy, 4 Ala. 592, § 343. 
 Howard Ins. Co. v. Halsey, 4 Sandf . 
 565 ; 8 N. Y. 271, §§ 17, 43, 203, 
 307, 688. 
 Howe V. Bradley, 19 Me. 31, § 836. 
 V. Hall, 14 East, 274, § 1263. 
 V. Nickels, 22 Me. 175, § 390. 
 V. Stewart, 40 Vt. 145, ?; 457. 
 V. Thayer, 17 Pick. 91, § 486. 
 Howell V. JHowell, 5 W. Coast Rep. 
 286, § 1240. 
 V. Huyck, 2 Abb. App. Dec. 
 423, §§ 1262, 1268. 
 Howry v. Eppinger, 34 Mich. 29, 
 
 §§ 90, 92. 
 Hoxie V. CaiT, 1 Sumn. 173, §§ 26, 
 
 371. 
 Hoy V. BramhaU, 19 N. J. Eq. 563, 
 
 §g 10, 16. 
 Hoyt V. Jeffers, 30 Mich. 181, 
 §§ 480A;. 695. 
 V. McNeil, 13 Minn. 390, § 1405. 
 V. Sheldon, 3 Bosw. 267, § 8. 
 V. Thompson, 5 N. Y. 347, § 96, 
 Hubbard v. Matthews, 54 N. Y. 43, 
 
 §§ 748. 751, 753, 
 Huddeson v. Prizer, 9 Phila. 65, 
 
 § 1358. 
 Hudgens v. Jackson, 51 Ala, 514, 
 § 1096. 
 
 Hudson V. Warner, 2 H. & G. 415, 
 
 gi^ 34, 86. 
 Hutf V. Hutchinson, 14 How. 586, 
 
 § 1085. 
 Huffman v. San Joaquin Co. 21 
 
 Cal. 426. § 4S0g. 
 Hughes V. Bowen, 15 la. 446, § 956, 
 V. Cannon, 2 Humph. 589, g 127. 
 v. Dudnam, 8 Jones, 127, 
 
 §§ 149, 162. 
 V. Osborn, 42 Ind. 450, §§ 1155, 
 
 1346, 
 V. United States, 4 Wall, 232, 
 
 §§ 44, 273. 
 V. Watt, 26 Ark. 328, § 1094, 
 Hulbert v. Pacific Ins. Co. 2 Sumn, 
 
 471, § 670, 
 Plulett V. Soulard, 26 . Vt. 295, 
 
 § 480?Ji. 
 Hidings V. Guthrie, 4 Pa. St. 123, 
 
 §238. 
 Hull V. Noble, 40 Me. 459, §§ 10, 
 
 277, 279. 
 Hultain v. Munigle, Allen, 220, 
 
 § 609. 
 Hume V. Watt, 5 Kan. 34, §§ 756, 
 
 878. 
 Humplu-ey v. Burnside, 4 Bush, 
 
 215, § 1411. 
 Humphreys v. Newman, 51 Me. 40, 
 
 §208. 
 Humphries v. Budd, 5 Jur. 630, 
 § 1410. 
 V. McCraw, 9 Ark. 91, § 1230. 
 Hundley v. Mount, 8 Sm. & M. 387, 
 
 §192, 
 Hunt V. Bailey, 39 Mo. 257. § 606, 
 V. Crane, 33 Miss, 669, § 1243, 
 V. Elmes, 2 De G. F. & J. 578, 
 
 §65a. 
 V. Johnson, 19 N. Y. 279, §§ 97, 
 
 113. 
 V. Lowell, 1 Allen, 343, § 1255. 
 V. Maybee, 7 N. Y. 266, § 990. 
 Hunter v. Boucher, 3 Pick. 289, 
 §671. 
 V. Hook, 64 Barb. 468, § 957. 
 V. Hudson, etc. Co, 20 Barb, 
 
 493, § 654, 
 V. Kennedy, 1 Ir. Ch. R, 148, 
 
 §104. 
 V. Watson, 12 Cal. 363, §§ 97, 
 203. 
 Huntington v. Charlotte, 15 Vt. 46, 
 § 1085. 
 V. Harvey, 4 Conn. 124, §§ 956, 
 966. 
 Hurlbutt V. Buttenop, 27 Cal. 50, 
 §374.
 
 xlvi 
 
 TABLE OF CASES CITED. 
 
 Hiissoy V. Freeman, 10 Mass. 84, 
 
 § 965. 
 Huston V. Peters, 1 Mete. (Ky.) 558, 
 
 g 575. 
 Hutcheson i'. Blakeman, 3 Mete. 
 
 (Ky.) (30, 45 385. 
 Hntfhoson v. Johnson, 1 Binn. 59, 
 
 55 1321. 
 Hiitchm<;s v. Nunes, 1 Moore P. C. 
 
 N. S. 243, §480. 
 Hutcbins i: Bank of Term. 4 
 Hunipli. 418, § 504. 
 V. Hudson, 8 Humph. 426, §504. 
 Hutc-hinson r. Harttman, 15 Kan. 
 
 133, §;; 204. :316. 
 Hutz V. Karthouse, 4 Wash. C. C. 
 
 1. § 736. 
 Hvatt r. Bank of Ky. 8 Bush, 193, 
 
 § 822. 
 Hvdo V. Navigation Co. 5 T. R. 389, 
 
 ■§ 574. 
 Hyslop V. Hoi)pock, 5 Ben. 447; 6 
 Bank. Reg. 552, §§ 1349, 
 1356. 
 V. Jones, 3 McLean, 96, § 829. 
 
 I. 
 
 Ibbottson V. Rhodes, 2 Vern. 554, 
 
 §§ ", 35. 
 Iglehart v. Crane, 42 111. 261, § 203. 
 Dl. Cent. R. Co. v. Aslimead, 58 
 111. 487, § 455. 
 V. Frankenberg, 54 111. 88, 
 
 § 553. 
 V. Hornberger, 77 111. 457, § 455, 
 V. Johnson, 40 111. 35, § 1417. 
 V. McClellan, 54 111, 58 ; 42 111. 
 
 355, §§ 455, 4807i;. 
 V. McCulIough, 59 lU. 166, 
 
 §.^ 64, 273, 277, 299. 
 V. Morrison, 19 111. 136, § 553. 
 Inee v. Everard, 6 T. R. 545, § 161. 
 Indianapolis, etc. R. Co. v. Cald- 
 well, 9 Ind. 397, § 1409. 
 V. Case, 15 Ind. 2, § 1410. 
 V. Moore, 16 Ind. 4J, § 1410. 
 V. Paramore, 12 Lid. 426, 
 
 § 1410. 
 V. Stephens, 28 Ind. 429, § 1410. 
 Inglehart v. Thousand Island Hotel 
 Co. 14 N. Y. Sup. Ct. 547, § 671. 
 Inghs V. State, 61 Ind. 212, § 1412. 
 Ingrahani v. Disborough, 47 N. Y. 
 421, § 431. 
 V. State, 27 Ala. 17, § 1412. 
 Ingrem v. Philliiis, 3 Strobh. 565, 
 §231. 
 
 Inloe's Lessees v. Harvey, 11 Md. 
 
 519, § ;W9. 
 Irby v. Vining, 2 McCord, 379, §485. 
 Ii-eland r. Kipp, JO Johns. 489; 11 
 
 J<jhns. 231, §§ 780, 847. 
 Irvin V. Smith, 17 Ohio, 226, SS 225, 
 
 364. 
 Irwin V. Phillips, 5 Cal. 140, § 1411. 
 Isaacs V. Shattuck, 12 Vt. 668, 
 
 § 1090. 
 Isbell V. Kenyon, 33 Mich. 63, 
 
 § 1092. 
 Isham V. Bennington Iron Co. 19 
 
 Vt. 280, §§112, 125. 
 Isett V. Hoge, 2 Watts, 128, § 421. 
 Isley V. Jones, 12 Gray, 2U0, §§ 413, 
 414, 415. 
 V. Stubbs, 9 Mass. 65, § 466. 
 Ives V. Bosley, 35 Md. 262,"§ 87. 
 Izett V. Mountain, 4 East, 371, 
 
 §542. 
 
 Jaccard v. Anderson, 37 Mo. 91, 
 
 § 934. 
 Jacks v. Darrin, 3 E. D. Smith, 557, 
 
 § 1009. 
 Jackson v. Andrews, 7 Wend. 152, 
 
 §341. 
 V. Brvan, 1 Johns. 322. § 588. 
 V. Bull, 1 Johns. Cas. 81, § 216. 
 V. Burgott, 10 Johns. 457. § 7. 
 V. Caldwell, 1 Cow. 622, §§ 30, 
 
 65. 
 V. Dubois, 4 Johns. 216, § 230. 
 V. First Nat. Bank, 42 N. J. L. 
 
 178, § 94b. 
 V. Fi-ench, 3 Wend. 337, § 593. 
 V. Given, 8 Johns. 137, § 97. 
 V. Green, 4 Johns. 186, § 588. 
 V. Hopkins, 18 Johns. 487, 
 
 §§ 589, 599. 
 V. Langhead, 2 Johns. 75, 
 
 §588. 
 V. Leek, 19 Wend. 339, § 672. 
 V. Loses, 4 Sandf. Cli. 381, 
 
 §341. 
 V. Luce, 14 Ohio, 514, § 231a. 
 V. Moncrief, 5 Wend. 26, §'593. 
 V. Nichol, 5 Bing. N. C. 508, 
 
 §404. 
 r. Niven, 10 Johns. 335, § 588. 
 V. Parkliurst, 5 Johns. 128, 
 
 § 595. 
 V. Post, 15 Wend. 588, § 229. 
 V. Richards, 2 Cai. 343, § 779. 
 V. Rowan, 9 Johns. 330, § 593.
 
 TABLE OF CASES CITED. 
 
 xlvii 
 
 Jackson v. Rowe, 2 Sim. & St. 473, 
 §§11, 30, 65a, 
 V. SaniT)le, 1 Johns. Cas. 231, 
 
 § 595. 
 V. Sharp, 9 Johns. 162, § 672. 
 V. Stackhouse, 1 Cow. 122, 
 
 § 599. 
 V. State. 19 Ind. 313, § 1416. 
 V. Stone, 13 Jolms. 447, § 843. 
 V. Tuttle. 9 Cow. 233, § 343. 
 V. Van Valkenburg, 8 Cow. 
 260, §§ 34, 97, 188, 245, 252. 
 V. Warren, 32 III. 331, §§ 344, 
 
 357. 
 V. Wilsev, 9 Johns. 267. § 587. 
 V. Winslow, 9 Cow. 13, § 672. 
 V. Woolsey, 11 Joluis. 446, 
 § 1271. 
 Jackson ex dem. Davis v. Bronson, 
 
 4 Cow. 51, § 1178. 
 Jacob V. Lee, 2 Mood. & R. 33, 
 
 § 1282. 
 Jacobs V. Turner, 2 La. An. 964, 
 
 § 858. 
 Jacobus V. Raih'oad, 20 Minn. 125, 
 
 § 558. 
 Jaffroy v. Brown, 17 Hun, 575, 
 
 §351. 
 James v. Brown, 11 Mich. 25, § 203. 
 V. Griffin, 2 M. & W. 623, § 465. 
 V. Morev, 2 Cow. 246, §§ 119, 
 
 186." 272. 
 V. Wade, 21 La. An. 548, § 984. 
 Jameson v. Swinton, 2 Camp. 373 ; 
 
 2 Taunt. 224, §§ 697, 703, 790. 
 Janes v. Scott. 59'Pa. St. 178, § 417. 
 Janesville r. Milwaukee, etc. R. 
 
 Co. 7 Wis. 484, § 1404. 
 Janney v. Spedden, 38 Mo. 395, 
 
 § 1050. 
 Jaques v. Weeks, 7 Watts, 261, 
 §§ 28, 30, 103, 187, 191, 278, 279, 
 284, 299. 
 Jarves v. Aikens, 25 Vt. 635, §§ 201, 
 
 214. 
 Jarvis v. Barrett, 14 Wis. 591, 
 § 1031. 
 V. Robinson, 21 Wis. 523, 
 § 1405. 
 Jasper v. Porter, 2 McLean, 579, 
 
 § 1404. 
 Jay V. Richardson, 30 Beav. 563, 
 
 §7. 
 
 JeiTersonville, etc. R. Co. v. Cleve- 
 land, 2 Bush, 468, § 570. 
 
 Jefford V. Ringold, 6 Ala. 544, 
 §§ 1286, 1290. 
 
 Jeffreys v. Evans, 6 B. Mon. 119, 
 §431. 
 
 Jencksr. Phelps, 4 Conn. 149, §348. 
 Jenkins v. Blizai-d, 1 Stai-k. 418, 
 § 503. 
 V. Bodley. 1 Sm. & M. Ch. 338, 
 
 §44.' 
 V. Eldridge, 3 Storv, 181, § 11. 
 V. State. 38 Miss. 382, § 1187. 
 V. Usborne, 7 My. & G. 678, 
 §478. 
 Jenlcs V. Payne, 15 Johns. 399, 
 
 § 1176. 
 Jermings v. Moore, 3 Vem. 609, 
 §691. 
 V. Roberts, 2 Eng, L. & Eq. 
 
 118, § 723. 
 V. Wood," 20 Ohio, 261, §§ 147, 
 148, 149. 
 John V. Citv Natl Bank, 62 Ala. 
 
 529, § 844."' 
 Johns V. Reardon, 3 Md. Ch. 57, 
 §§ 112, 125. 
 V. Scott, 5 Md. 81, § 3. 
 Johnson v. Baker, 38 lU. 98, § 1143. 
 V. Bloodgood, 1 Johns. Cas. 51, 
 
 §440. 
 V. Chambers, 12 Lid. 102, 
 
 § 1404. 
 V. Clarke, 18 Kan. 157, §§ 65a, 
 
 96, 273, 277. 
 V. Common Council, 16 Ind. 56, 
 
 § 1412. 
 V. Gwathmey, 4 Litt. 317, § 307. 
 V. Jones, 4 'Barb. 369, §§658, 
 
 688. 
 V. Jones. 2 Neb. 126, §§ 1369, 
 
 1378. 
 V. Lafflin, 6 L. J. 134 (5 Dill. 
 
 65); 103 U. S. 800, §676. 
 V. Monell, 13 la. 300, § 1354. . 
 V. Powers, 40 Vt. 611, § 72. 
 V. Reese, 28 Ga. 353, § 1086. 
 V. Robertson, 31 Md. 476, § 1417. 
 V. Thweatt, 18 Ala. 741, §§ 318, 
 
 328 334 
 V. Way' 4 Am. L. 758, § 80. 
 Jolmson Co. v. Thayer, 5 Cent. L. 
 
 J. 245, § 676. 
 Johnston v. Chapman, 3 Pa. 18, 
 §421. 
 V. Glancy, 4 Blackf. 94, §§ 44, 
 273. 
 Johnstone v. Huddlestone, 4 B. & 
 
 C. 922, §§ 629, 645. 
 JoUand v. Stainbridge, 3 Ves. Jr. 
 
 478, §§ 29, 245, 258. 
 JoUey V. Taylor, 1 Camp. 148, 
 
 § 1264. 
 Jones r. Bamford, 21 la. 217, §§ 185, 
 672, 690.
 
 xlviii 
 
 TABLE OF CASES CITED. 
 
 Jones V. Berryhill, 25 la. 289, § 94a. 
 V. Byi-d, 74 III. 115, § llCl. 
 V. Chiles, 3 Dana. 25, t^ ;^43. 
 V. Earl, ;57 Cal. 630. t^ 457. 
 V. Fales, 4 Mass. 245, t, 1397. 
 V. Galis' Curax'r, 4 Mont. 635, 
 
 4^141. 
 V. Hays, 4 McLean, 521, § 1404. 
 V. Johnson, etc. Co. 8 Neb. 451, 
 
 ^ 96. 
 V. Lapham, 15 Kan. 540, §§ 3, 
 
 201. 
 V. T^wis, 8 W. & S. 14, ^ 876. 
 ?'. Love, 9 Cal. 68, ^1353. 
 V. Marks, 47 Cal. 242, §§ 96, 
 
 273. 
 V. Mansker, 15 La. 51, § 851. 
 V. Marsh, 4 T. R. 464, § 640. 
 V. McNarrin, 68 Me. 334, g§351, 
 
 374 
 V. Middleton, 29 la. 188, § 738. 
 V. O'Brien, 36 Eng. L. & Eq. 
 
 283, § 987. 
 V. Roberts, 65 Me. 273, g§ 119, 
 
 143. 
 V. Smith, 1 Hare, 43, §§ 11, 34, 
 
 35, 40, 281. 282, 284, 288. 
 V. Vorhees, 10 Ohio, 145, §§ 552. 
 
 558. 
 V. Warden, 6 W. & S. 399, 
 
 § 821. 
 V. Williams, 11 M. & W. 176, 
 
 § 480/1. 
 V. Williams, 24 Beav. 47, §§ 11, 
 
 35, 47, 65«. 
 V. Witter, 13 Mass. 304, §§ 430, 
 433, 443. 
 Jordan v. Black, 3 Murph. (N. C.) 
 30, § 431. 
 V. Gillen, 44 N. H. 424, g 428. 
 V. Mead, 3 Ala. 437, § 231. 
 Jordon v. Hazard, 10 Ala. 221, 
 § 1230. 
 V. James, 5 Ohio. 98. § 464. 
 Joyce i\ Joyce, 5 Cal. 449, § 1412. 
 Judah V. Jiidd, 5 Day, 534, gg 436, 
 438. 
 V. Stephenson, 10 la. 492, 
 §g 1084, 1138. 
 Judd V. Woodruff, 2 Root. 298, 
 
 § 156. 
 Judson V. Corcoran, 17 How. 612, 
 § 440. 
 V. Dada, 79 N. Y. 373, §§ 96, 
 324. 
 Jumel V. Jumel, 7 Paige, 591, 
 
 §310. 
 Justice V. Elstob, 1 Fost. & F. 256. 
 § 1282. 
 
 K. 
 
 Kaine v. Denniston. 23 Pa. St. 203, 
 
 t?i; 316. 333. 
 Kamena v. Kuelbig, 23 N. J. Eri. 
 
 78, § 431. 
 Kamm r. Stark, 1 Sawyer, 547, 
 
 § 1333. 
 Kane v. Roberts, 40 Md. 590, § 96. 
 Kansas City, etc. Co. v. Simpson, 
 
 2 Pac. Rep. 831, S 558. 
 Kansas Citv, St. J. & C. B. R. t\ 
 
 Campbell, 62 Mo. 585, § 1316. 
 Karr v. Karr, 19 N. J. Eq. 427, 
 
 § 1148. 
 Kasson v. Smith, 8 Wend. 437, 
 
 g§ 92a, 946. 
 Kay V. Allen. 9 Pa. St. 320, § 393. 
 Kearney r. Vaughn. 50 Mo. 284, 
 
 § 316. 
 Keenan v. Mo. Ins. Co. 12 la. 126, 
 
 § 678. 
 Keenev v. Lvon, 21 la. 277, § 1188, 
 Kehler v. Jack Manf. Co. 55 Ga. 
 
 639, § 1136. 
 Kellar r. Savage, 20 Me. 199, g§ 1265, 
 
 1280. 
 Keller i'. Nutz, 5 S. & R. 246, §8 206, 
 
 210. 
 
 Kelley v. Brown. 5 Grav, 108, § 957. 
 
 V. Storey, 6 Hoisk.'202, § 1411. 
 
 Kellogg V. Corrico, 47 I\Io. 157, 
 
 § 1066. 
 
 V. Fanchcr, 23 Wis. 31, § 373. 
 
 V. McLaughlin, 8 Ohio, 114, 
 
 § 1130. 
 V. Putnam. 11 Mich. 344, S 1204. 
 V. Smith, 26 N. Y. 18, §§ 65a, 
 
 431. 
 V. Stockton, 29 Pa. St. 460, 
 §391. 
 Kellum V. Smith, 39 Pa. St. 241, 
 
 § 1336. 
 Kelly V. Mills, 41 Miss. 207, §§ 103, 
 
 233. 
 Kemble v. Wallis, 10 Wend. 374. 
 
 § 1389. 
 Kemeys v. Richards, 11 Barb. 312, 
 
 § 538. 
 Kemp V. Den-ett, 3 Camp. 510, 
 
 §§ 607, 610, 633. 
 Kendall v. Lawrence, 22 Pick. 540, 
 
 §§ 281, 288, 290, 294. 
 Kenedy r. Northrup, 15 111. 148, 
 
 § 217. 
 Kenuedv v. Green, 3 M. & K. 699, 
 '§8 31, 37, 688, 690. 
 V. Bohannon, 11 B. Mon. 118, 
 §492.
 
 TABLE OF CASES CITED, 
 
 xlix 
 
 Kennedy v. Daly-, 1 Sch. & Lef. 355, 
 §§ 50. 63. 
 V. Parke, 17 N. J. Eq. 415, 
 §436. 
 Kenney v. Alvater, 77 Pa. St. 34, 
 §500. 
 V. Browne, 3 Eidg. P. C, 512. 
 §34. 
 Kent V. Plumer, 7 Me. 464, § 305. 
 
 V. Warner. 12 Allen, 561, § 1397. 
 Kepler v. Davis, 80 Pa. St. 153, § 50. 
 Keppel's Adm'rs v. Pittsburg R. Co. 
 
 Chase's Dec. 167, § 1411. 
 Kermott v. Ayer, 11 Mich. 181, 
 
 § 1417. 
 Kern v. Hazerigg, 11 Ind. 443, 
 
 § 344. 
 Kerns v. Swope, 2 Watts, 75, §§ 13, 
 
 30, 192. 
 Kerr v. Clark. 19 Mo. 132, § 613. 
 V. Day, 14 Pa. St. 112, §§ 278, 
 
 286, 294, 303. 
 V. Hitt, 75 111. 51, § 1066. 
 V. Kitchen, 17 Pa. St. 433, 
 
 §§ 307, 308. 
 V. Lord Dungannan, 1 Dr. & 
 
 War. 509, § 660. 
 V. McGuire, 28 N. Y. 446. § 1284. 
 V. Willan, 2 Stark. 53, §§ 538, 
 544. 
 Ketchum v. Am. Ex. Co. 52 Mo. 
 390, § 558. 
 V. Clark, 6 Johns. 144, §§ 486, 
 513. 519. 
 Kessel v. Albetis, 56 Barb. 362, 
 
 § 1404. 
 Key V. Flint, 8 Taunt. 21, § 94a. 
 Keys V. Test. 33 111. 316, § "273. 
 Kidd V. Manley, 28 Miss. 156, § 1405. 
 Ividder v. Blaisdell, 45 Me. 461, 
 § 1411. 
 V. Peoria, 29 111. 77, § 1127. 
 Kiefferv. Ehler, 18 Pa. St. 388, 
 
 §372. 
 Killep V. Empire Mill Co. 2 Nev. 
 
 34, §§ 1190, 1198. 
 Killey v. Wilson, 33 Cal. 690, § 273. 
 Kilpatrick v. Commonwealth, 31 
 
 Pa. St. 198, § 1412. 
 
 Kimball v. Blaisdell, 5 N. H. 533, 
 
 §§ 214, 216. 
 
 V. Railroad, 26 Vt. 247, § 553. 
 
 Kimbro v. Lytle, 10 Yerg. 417, § 946. 
 
 Kimbrough v. Davis, 34 Ala. 583, 
 
 §434. 
 Kimpton v. Glover, 41 Vt. 283, 
 
 § 1234. 
 Kincheloe v. Holmes, 7 B. Mon. 5, 
 8 1388. 
 
 Kinderley v. Jervis, 23 Beav. 1, 
 
 §434. 
 King V. Arundel, Hob. 109, § 1404. 
 V. Bill, 28 Conn. 593, §§ 342, 
 
 347, 348. 
 V. Connolly, 44 Cal. 236, § 637. 
 V. Harrington. 14 Mich. 532, 
 
 §§ 1046, 1081. 
 V. Kent, 29 Ala. 542, § 1410. 
 V. Kerr, 5 Ohio, 154, § 480c. 
 V. Dowry, 20 Barb. 532, §§ 1272, 
 
 1291. 
 V. Luffe, 8 East, 193, § 1415. 
 V. Portis, 77 N. C. 25, § 192. 
 V. Ritchie, 18 Wis. 554, § 1243. 
 Kingsbury v. Smith, 13 N. H. 109, 
 
 § 1223. 
 Kinning v. Buchanan, 8 C. B. 371 ; 
 
 Sm. Lead Cas. 839, § 1161. 
 Kinning, Ex parte, 4 C. B. 507, 
 
 §1161. 
 Kinsley v. Robinson, 21 Pick. 327, 
 
 § 1004. 
 Kipp V. Fullerton, 4 Minn. 473, 
 
 § 1383. 
 Kirkland v. Dinsmore, 62 N. Y. 171, 
 
 § 554. 
 Kirkpatrick v. McCoUough, 3 
 
 Humph. 171, § 738. 
 Kirk wood v. Reedy, 10 Kan. 453, 
 
 § 1381. 
 Kiser V. Heuston, 38 111. 253, §§ 113, 
 
 255 
 Kitchen v. Crawford, 13 Tex. 516, 
 
 § 1082. 
 Kitsmiller v. Kitchen, 24 la. 163, 
 
 § 1149. 
 Klare v. State, 43 Ind. 483. § 1415. 
 Kleeman-y. Frisbie, 63111. 482, §431. 
 Kleinmanni'. Boerstein, 32 Mo. 311, 
 
 §860. 
 Klemm v. Dewes. 28 111. 317, § 1138. 
 Knapp V. Runalls, 37 Wis. 135, 
 
 § 960. 
 Knarr v. Conway, 37 Ind. 257, 
 
 § 1219. 
 Knell v. Building Ass'n, 34 Md. 67, 
 
 § 225. 
 Knight V. Bowyer, 2 D. & J. 450, 
 §281. 
 V. Pocock, 24 Beav, 436, § 240. 
 Knouff V. Thompson, 10 Pa. St. 57, 
 
 §230. 
 Knowles v. Gaslight & Coke Co. 19 
 Wall. 58, § 1379, 
 V. Rablin, 20 la, 101, § 344. 
 Knox V. Miller, 18 Wis. 397, § 1371. 
 V. Thompson, I Litt. 350, §§44, 
 378.
 
 1 
 
 TABLE OF CASES CITED. 
 
 Koelor v. Bernicker, 63 Mo. 368, 
 
 §349. 
 Kohl V. Lynn, 34 Mich. 360, § 77. 
 Kohn V. Packard, 3 La. 234, g^ 574, 
 
 .577a. 
 Kollman v. Ex. Co. 3 Kan. 205, 
 
 § 553. 
 Konig V. Bayard, 1 Pet. 250, § 711. 
 Koons V. Grooves, 20 la. 373, § 96. 
 Kramer v. Farm. & Mech. Bank, 15 
 Ohio, 253, § 180. 
 V. Sandford, 4 Watts & S. 328, 
 § 943. 
 Kvamph v. Hatz, 52 Pa. St. 525, 
 
 ^g 386, 421. 
 Kri.ler v. Lafferty, 1 Whart. 303, 
 
 g8 246, 280. 
 Kyle V. Green, 14 Ohio, 495, g§ 943, 
 944. 
 V. Thompson, 11 Ohio St. 610, 
 §208. 
 
 L. 
 
 La Croix v. Sarrazin, 15 Fed. Rep. 
 
 489, § 1406. 
 Lacustrine, etc. Co. v. Lake Gano, 
 
 etc. Co. 82 N. Y. 476, § 96. 
 Ladd V. Kemiey, 2 N. H. 340, §§961, 
 
 975 
 Ladle'y v. Creighton, 70 Pa. St. 490, 
 
 §123. 
 Lady Superior v. McNamai-a, 3 
 
 Barb. Ch. 375, § 143a. 
 La Farge Ins. Co. v. Bell, 22 Barb. 
 
 54, i5§ 683a, 688. 
 Lafayette Ins. Co. v. French, 18 
 
 How. 404, §§ 1302, 1303. 
 Lalitte v. Slatter, 6 Biug. 623; 4 
 
 Moore & P. 457, §§ 991, 1004, 
 
 1010. 
 La Grange v. Chapman, 11 Mich. 
 
 499, § 1411. 
 Lagrave's Case, 14 Abb. Pr. 334; 45 
 
 How. Pr. 301, § 1358. 
 Laing v. Coldar, 8 Pa. St. 479, § 541. 
 Laithe v. McDonald, 7 Kan. 254, 
 
 § 1249. 
 Lake v. Calhoun Co. 52 Ala. 115, 
 § 1417. 
 V. Reed, 29 la. 258, § 80. 
 Lake Merced Water Co. v. Cowles, 
 
 31 Cal. 215, § 1414. 
 Lally V. Holland, 1 Swan, 396, 
 
 §§ 149, 174. 
 Lamb v. Pierce, 113 Mass. 72, §§ 14, 
 244. 
 V. Rudd, 37 la. 618, § 94b. 
 
 Lamb v. Western R. Co. 7 Allen, 98, 
 
 § 566. 
 Lambert v. Ghiselin, 9 How, 552, 
 §990. 
 V. Newman, 56 Ala. 623, §§ 10, 
 
 29. 
 V. Sample, 25 Ohio St. 336, 
 § 1347. 
 Lamkin v. Phillips, 9 Port. 98, 
 
 §434. 
 Lamont v. Cheshire, 65 N. Y. 30, 
 §49. 
 V. Stimson, 5 Wis. 443, §§ 7, 11, 
 29. 
 Lamphere v. Co wen, 42 Vt. 175, 
 
 §§ 418, 1390. 
 Landers v. Boulton, 26 Cal. 393, 
 
 §98. 
 Landes v. Brant, 10 How. 348, 
 
 §i^ 44, 273. 
 Lane V. Jackson, 5 Mass. 157, § 466. 
 V. Jackson, 20 Beav. 535, § 375. 
 V. Mason, 5 Leigh, 520, § 101. 
 V. Steward, 20 Me. 98, §§ 939, 
 941. 
 Lanfier v. Mestier, 18 La. An. 497, 
 
 § 1401. 
 Langan v. Hewett, 13 Sm. & M. 
 
 122, § 525. 
 Langdale v. Trimmer, 15 East, 291, 
 
 §§716. 794, 817. 
 Langdon v. Poor, 20 Vt. 13, §§ 1107, 
 1109. 
 V. Woodfield, 2 B. Mon. 105, 
 §48. 
 Lange v. Kennedy, 20 Wis. 279, 
 
 § 499. 
 Langton v. Horton, 1 Hare, 549, 
 
 §433. 
 Lank v. Hiles. 4 Houst. (Del.) 87, 
 
 §269. 
 Lansing v. Gaine, 2 Johns. 300, 
 
 §§ 483, 513. 
 Laporte t\ Landry, 5 Mart. (La.) N. 
 
 S. 359, § 879. 
 Laporte City v. Goodfellow, 47 la. 
 
 572, § 1409. 
 Larabee v. Searsport, 42 Me. 202, 
 
 § 1400. 
 Large v. Moore, 17 la. 258, g 434. 
 Larkin, Ex parte, L. R. 14 Ch. Div. 
 
 566, § 672. 
 Larrabee v. Morrison, 15 Minn. 196, 
 
 § 1209. 
 Lassell v. Burnett, 1 Blackf. 150, §8. 
 Lathrop v. MitcheU, 47 Ga. 610, 
 
 §§ 1259, 1281. 
 Latouch V. Lord Dunsany, 1 Sch. 
 & Lef. 159, § 104.
 
 TABLE OF CASES CITED. 
 
 Lavalle v. People, 6 111. App. 157, 
 
 § 1404. 
 Laverone v. Mangianti, 41 Cal. 138, 
 
 § 480i. 
 Lawler v. Whette, 1 Handy, 29, 
 
 § 1058. 
 Lawrence v. Bowman, 1 McAllis- 
 ter C. Ct. 419, g§ 1324, 1325. 
 V. Clark, 14 M. & W. 250, 
 
 § 1287. 
 V. Ralston, 3 Bibb, 102, §§ 956, 
 
 966. 
 V. State, 30 Ark. 719, §> 1031. 
 V. Tucker, 7 Me. 195, §g 96, 674, 
 688. 
 Lawson v. Farmers' Bank, 1 Ohio 
 St. 206, §§ 11, 716, 805, 
 811. 
 V. Townes, 2 Ala. 373, § 397. 
 V. Weston, 4 Esp. 56, gS 80, 81. 
 Lawton v. Gordon, 37 Cal. 202, g§ 3, 
 
 28, 65, 66, 96, 244. 
 Layer's Case, 1 Leacli Cr. Cas. 336, 
 
 g 1261. 
 Lazier v. Westcott, 26 N. Y. 146, 
 
 § 1414. 
 Lear?. Polk Co. Copper Co. 21 How. 
 
 493, §§ 44, 273. 
 Leach v. Beattie, 33 Vt. 195, §§203, 
 208. 
 V. Hewitt, 4 Taunt. 731, § 1017. 
 Leach's App. 44 Pa. St. 140, § 147. 
 Leason v. Holt, 1 Stai-k. 186, §§ 536, 
 
 537. 
 Leathers v. Commercial Ins. Co. 2 
 
 Bush, 296, § 981. 
 Leavenworth, etc. R. v. Maris, 16 
 
 Kan. 333, § 
 Leavitt v. Peck, 3 Conn. 124, § 525. 
 V. Putnam, 3 N. Y. 494, § 738. 
 V. Simes, 3 N. H. 14, § 1281. 
 Lee V. Averell, 1 Sandf. 731, § 348. 
 V. Cato, 27 Ga. 637, § 225. 
 V. Dick, 10 Pet. 482, §§ 395, 396. 
 V. Green, 6 De G. M. & G. 155, 
 
 §§ 240, 375. 
 V. Hewlett, 2 K. & J. 531, §§ 7, 
 
 35. 
 V. Marsh, 43 Barb. 102, § 553. 
 Lee Co. v. Rogers, 7 Wall. 181, 
 
 §§ 357, 375. 
 Leeds v. Cameron, 3 Sumn, 488, 
 
 §272. 
 Leffingwell v. White, 1 Johns. Cas. 
 
 99, § 938. 
 Legge V. Thorpe, 13 East, 171, 
 
 g§ 1004, 1009. 
 Leggett V. Bullock, Busb. L. 283, 
 § 231a. 
 d 
 
 Le Grand v. Hampden Sidney Col. 
 
 5 Munf. 324, §§ 1408, 1409. 
 Leiby v. Wolf, 10 Ohio, 83, §§ 205, 
 
 223. 
 Leiraan's Estate, 32 Md. 225, §g 17, 
 
 225. 
 Leitcii V. Wells, 48 Barb. 637, § 341 ; 
 
 (48 N. Y. 585), § 371. 
 Le Marchand's Case, 1 Leach Cr. 
 
 Cas. 336, § 1261. 
 Lenike v. Railroad, 39 Wis. 449, 
 
 §570. 
 
 Le Neve v. Le Neve, 3 Atk. 646 ; 1 
 
 Ves. Sr. 64; White & T. Lead. 
 
 Cas. in Eq. 109, g§ 50, 231a, 687, 
 
 690. 
 
 Lenheim v. Fay, 27 Mich. 70, § 94rt. 
 
 Lenoir v. Broadhead, 50 Ala. 58, 
 
 g 1367. 
 Lenox v. Roberts, 2 Wheat. 373, 
 
 §§ 779, 814. 
 Lent V. Padleford, 10 Mass. 230, 
 
 § 1387. 
 Leonard v. Gary, 10 Wend. 504, 
 §956. 
 V. Shirts, 33 Ind. 214, § 416. 
 Leppoc t\ Nat'l Union Bank, 32 
 
 Ind. 136, § 225. 
 Le Roy v. Johnson, 2 Pet. 186, 
 
 §§ 483, 524. 
 Lesassier v. The Southwestern, 2 
 
 Woods, 35, § 473. 
 Lesem v. Herriford, 44 Mo. 323. 
 
 §67. 
 Lessee of Allen v. Parish, 3 Ohio, 
 
 107. § 225. 
 Lester v. Hardesty, 29 Md. 50, 
 
 §225. 
 Leverich v. Mayor of New York, 66 
 
 Barb. 623, § 657. 
 Levy V. Cohen, 4 Ga. 1, § 383. 
 V. State, 6 Ind. 281, § 1404, 
 Lewin v. Dills, 17 Mo. 64, § 1250. 
 Lewis V. Bakd. 3 McLean, 56, 
 §§ 119, 192. 
 V. Bakewell, 6 La. An. 359, 
 
 §768. 
 V. Bond, 18 Beav. 85, §§ 46, 282. 
 V. Boskins, 27 Ark. 61, § 316. 
 V. Botkin, 4 W. Va. 533, § 1375. 
 V. Bradford, 10 Watts, 67, §§ 11, 
 
 28, 278. 
 V. Dvvight, 10 Conn. 95, § 402. 
 V. Grace, 44 Ala. 307, § 1153. 
 V. Harris, 31 Ala. 689, § 1411. 
 V. Madison, 1 Munf. 303, 
 
 § 351. 
 V. McClure, 8 Oreg. 273, § 1417. 
 V. Mew, 1 Strob. Eq. 180, § 351.
 
 lii 
 
 TABLE OF CASES CITED. 
 
 Lewis V. The Success, 18 La. An. 1, 
 § 480 ». 
 V. Wintnule, 76 Ind. 13, § 1414. 
 Lewiston Falls Bauk v. Leonai-cl, 
 
 43 Mo. 144, i^ 893. 
 Libby v. Pierce, 47 N. H. 309, 
 
 Si? 740, 741. 
 Life Ins. Co. v. Poolv, 5 Jur. N. S. 
 129, § 431. 
 V. Rowana, 20 N. J. Eq. 389, 
 8142. 
 Life & Fire Ins. Co. v. Mechanics' 
 
 Life Ins. Co. 7 Wend. 31, § 1280. 
 Light V. Kingsbury, 50 Mo. 331, 
 
 §738. 
 Lightner v. Mooney, 10 Watts, 407, 
 
 i$8 196, 278, 295. 
 Likens v. McCormick, 39 Wis. 313, 
 
 §§ 1030, 1355. 
 Lilley v. Miller, 2 Nott & McC. 257, 
 
 § 1009. 
 Lilliard v. Ruckers, 9 Yerg. 64, 
 
 § 215. 
 Linie Rock Bank v. Hewitt, 52 Me. 
 51, §?5 480o, 874. 
 V. Plimpton, 17 Pick. 159, § 055. 
 Lincoln, etc. Ass'n v. Hass, 10 Neb. 
 
 583, f-oe. 
 Lindaur v. I^Iut. Safety Ins. Co. 
 
 3 Ark. 461, § 1235. 
 Lindenburger v. Beall, 6 Wheat. 
 
 104, §i^ 781, 882. 
 Linderman v. Guldiu, 34 Pa. St. 
 
 54, § 767. 
 Lindo V. Unsworth, 2 Camp. 602, 
 
 § 819. 
 Lindsay v. Attorney-General, 33 
 
 Miss. 508, § 1412. 
 Linville v. Welch, 29 Mo. 203, § 109. 
 Lisher v. Pai-melee, 1 Wend. 22, 
 
 8 1166. 
 Lisk V. Woodruff, 15 111. 15, § 480c. 
 Litchfield v. Burwell, 5 How. Pr. 
 • 346. § 1413. 
 Litt V. Cowley, 7 Taunt. 169, 
 
 §§ 463, 470. 
 Little V. Clarke, 36 Pa. St. 114, 
 § 504. 
 V. Page, 44 Mo. 412, § 72. 
 Littlefield v. Smith, 17 Me. 337, 
 
 § 436. 
 Littleton v. Giddings, 47 Tex. 109, 
 
 §^11, 36, 65a, 279. 
 Livingston v. Dean, 3 Johns. Ch. 
 
 479, § 431. 
 Livingstone v. Taimer, 14 N. Y. 64, 
 
 § 597. 
 Lloyd V. Atwood, 3 De G. & J. 614, 
 §§ 674, 688. 
 
 Lloyd V. Banks. L. R. 3 Ch. 488, 
 
 g§ 3, 8, 433. 
 
 V. Hooper, 7 East, 634, § 1181. 
 
 V. Wattnford & Limerick R. Co. 
 
 9 Liaw T. (N. S.) 89, 8 560. 
 
 Loan & Trust Co. v. Maltby, 8 
 
 Paige, 361, ^5 214. 
 Lockwood V. Crawford, 18 Conn. 
 
 361, g 738. 
 Lodge V. Simonton, 3 Pa. 439, 
 
 §S 321, 324. 
 
 Logan V. Herron, 8 S. & R. 459, 
 
 tjij 581, 608. 
 
 V. Williams, 76 111. 175, § 127. 
 
 Lohman v. State, 81 Ind. 15. §1417. 
 
 Lollar V. Jauvrin, 47 N. H. 334, 
 
 § 480o. 
 
 London & N. W. R. Co. v. Bart- 
 
 lett, 7 H. & N. 400, §§ 462, 
 
 464. 
 
 V. Dunham, 18 C. B. 826, §561. 
 
 Lonergan v. Stewart, 55 III. 44, 
 
 § 480o. 
 Long V. Dollarhide, 24 Cal. 218, 
 §§ 205, 210. 
 V. Railroad, 50 N. Y. 76, § 554. 
 V. Stapp, 49 Mo. 508, § 280. 
 V. \v ellcr, 29 Gratt. 347, § 307. 
 Loomis V. Eagle Bank, 2 Disney 
 (Ohio), 285, g 683a. 
 V. Loomis, v26 Vt. 198, § 436. 
 V. Mimrv, 15 N. Y. 312, § 94a. 
 V. Rilev^! 24 111. 307, § 344. 
 Loose V. Loose, 36 Pa. St. 538. § 972. 
 Lord V. Ocean Bank, 20 Pa. St. 
 
 384, § 94a. 
 Losev V. Simpson. 11 N. J. Eq. 246, 
 
 §§205, 207.210, G80. 
 Ltxid V. Merrill, 45 Me. 516, § 821. 
 Loudon V. Tiifuny, 5 Watts & S. 
 
 367, § 431. 
 Lough ridge v. Bowland, 53 Miss. 
 
 546, §§ 29, 373, 303. 
 Louisiana State Bank v. Buhler, 
 23 La. An. 83, § 1004. 
 V. EUery, 4 Mart. N. S. (La.) 
 
 87, § 749. 
 V. Rowel, 6 Mart. N. S. (La.) 
 
 506, § 880. 
 V. Senecal, 13 La. 525, §§ 083, 
 683«. 
 Louis^■ille Manf. Co. v. AVelch, 10 
 
 How. 461, §?; 406, 411. 420. 
 Loveland v. Burk, 120- Mass. 139, 
 
 ^; 576. 
 Lovejoy v. Lunt, 48 Me. 377, 
 ■ §^ 1031, 1119. 
 V. Spafford, 4 Cent. L. J. 80; 
 93 U. S. 430, § 519.
 
 TABLE OF CASES CITED. 
 
 liii 
 
 Loveridge v. Cooper, 3 Russ. 31, 
 
 §433. 
 Low V. Blinco, 10 Bush, 331, §§ 232, 
 266. 
 V. Howard, 10 Cush. 159, § 958. 
 V. Pratt, 53 111. 438, § 351. 
 Lowe V. Beckwitb, 14 B. Mon. 184, 
 
 §§ 390, 407. 409. 
 Lowery v. Scott, 24 Wend. 358. 
 
 § 918. 
 Lowry v. Bi'own, 1 Cold. 456, § 13. 
 
 V. Steele, 27 Ind. 168, § 936. 
 
 Lowther v. Carlton, 2 Atk. 242, 
 
 §§ 29, 62. 348. 
 
 V. Commonwealth, 1 Hen. & 
 
 Munf. 202, § 480c. 
 
 Loyd t'. Anglin, 7 Yerg. (Tenn.) 
 
 428, § 1097. 
 Luckin v. Commonwealth, 4 Bush, 
 
 440, § 1409. 
 Ludlow V. Kidd, 3 Ohio, 541, § 358. 
 r. Van Ness, 8 Bosw. 178, g§ 97, 
 103. 
 Lufkms t\ Collins, 6 W. Coast Rep. 
 
 594, § 440. 
 Lumbert v. Palmer, 29- la. 104, 
 
 § 1397. 
 Lundie v. Robertson, 7 East, 231, 
 
 §975. 
 Lutlier V. McMichael, 16 Humph. 
 
 298, § 1093. 
 Lyendecker v. Martin, 38 Tex. 287, 
 
 § 1151. 
 Lyle V. Bradford, 7 Mon. Ill, § 348. 
 Lyon V. Johnson, 28 Conn. 1, §§505, 
 
 512. 
 Lysaght v. Bryant, 2 Carr. & Kir. 
 
 1016, § 722. 
 Lyttle V. Pope, 11 B. Mon. 297, 
 §348. 
 
 M. 
 
 Mac V. Titcomb, 19 Ind. 135, § 1404. 
 Macev v. Fenwick, 9 Dana, 198, 
 
 §§ 355, 373. 
 Macklin v. Waterhouse, 5 Bing. 
 
 212, § 544. 
 Mackreth v. Symmons, 15 Ves. 350, 
 
 §50. 
 Mackubin v. Smith, 5 Minn. 376, 
 
 §§ 1041, 1042. 
 Macon v. Slieppard, 2 Humph. 335, 
 
 §§ 273, 278, 289, 305. 
 Mactier v. Fi-ith, 6 Wend. 103, § 383. 
 Madden v. Fielding, 9 La. An. 505, 
 
 § 1138. 
 Maddox v. Humphries, 30 Tex. 494, 
 
 §348. 
 
 Madison Co. Com'rs v. Burford, 93 
 
 Ind. 383, § 1404. 
 Magee v. Badger, 34 N. Y. 247, 
 §80. 
 V. Railroad, 45 N. Y. 514, § 554. 
 Magill V. Merrie, 5 B. Mon. 168, 
 
 §494. 
 Mahew v. Eames, 3 B. & C. 601. 
 
 §551. 
 Mahoney v. Middleton, 41 Cal. 41, 
 
 §§ 96, 203, 231a. 
 Maignan v. Raikoad, 24 La. An. 
 
 333, § 570. 
 Maitland v. Backhouse, 17 L. J, 
 
 Ch. 121, § 10. 
 
 Major V. Bukley, 51 Mo. 227, §§ 65a, 
 
 307. 
 
 V. State, 2 Sneed. 11, § 1413. 
 
 Majors v. Cowell, 51 Cal. 478, J 374. 
 
 Malick V. Tower Grove, etc. R. Co. 
 
 57 Mo. 17, §§ 480fc, 695. 
 Mallory v. Stoddard, 6 Ala. 801, 
 
 § 143a. 
 Malpas V. Ackland, 3 Russ. 273, 
 
 §§ 15, 307. 
 Mammon v. Hartman, 51 Mo. 168, 
 
 § 87. • 
 Manchester Bank v. Fellows, 28 N. 
 H. 802, §§ 794, 797. 
 V. Oliver, 10 Cush. 557, § 924. 
 Mangles v. Dixon, 3 H. L. Cas. 702, 
 
 §§ 10, 431. 
 Mann v. Best, 62 Mo. 491, § 239. 
 V. Moors, Ry. & Mood. 249, 
 §926. 
 Manning v. Gasharie, 27 Ind. 399, 
 
 §§ 1236, 1417. 
 Mansfie-ld v. Gregory, 8 Neb. 435, 
 
 §96. 
 Manufacturers' Bank v. Bank of 
 Pa. 7 W. & S. 335, § 186. 
 V. Hazard, 30 N. Y. 226, § 925. 
 Manufacturers' Nat. Bank v. 
 
 Barnes, 65 111. 69; 16 Am. Rep. 
 
 576, § 671a. 
 Manwan-ing v. Sands, 1 Str. 706, 
 
 §671. 
 Mara v. Pierce, 9 Gray, 306, § 274. 
 Marberger v. Pott, 16 Pa. St. 9, § 422. 
 March v. Putney, 56 N. H. 34, 
 
 §§ 402, 426. 
 Market Bank v. Pacific Bank, 27 
 
 Hun, 465, § 1417. 
 Markward v. Doriat, 21 Ohio St. 
 
 637, § 1190. 
 Marlett v. Jackman, 3 Allen, 287, 
 
 §498. 
 Marlin v. Maynard, 16 N. H. 165, 
 
 §480w.
 
 liv 
 
 TABLE OF CASES CITED. 
 
 Marlow v. Jklarlow, 77 111. 633, 
 
 §§ 1257, 1291. 
 Marseilles, etc. Co, In re, L. R. 7 
 
 Ch. 161, § 674. 
 
 Mai-sh V. Austin, 1 Allen, 232, 
 
 § 143o. 
 
 V. Cohen, 68 N. C. 283. § 1216. 
 
 V. Maxwell, 2 Camp. 210, § 799. 
 
 Marsh's Adni'rs v. Bast, 41 Mo. 493, 
 
 § 1358. 
 Maishall r. Baker,- 3 Minn. 320, 
 §821. 
 V. Columbia Ins. Co. 27 N. H. 
 
 157, § 683a. 
 V. Fisk, 6 Mass. 24, § 96. 
 V. Mitchell, 34 Me. 227 ; 35 Me. 
 
 221, g§ 941, 946. 
 V. Roberts, 18 Minn. 405; 10 
 Am. Rep. 201, § 203. 
 Marston v. Hobbs, 2 Mass. 433, 
 
 § 480c. 
 Martalet r. Clary, 20 Ark. 251, § 480Z. 
 Mai-tin v. Boyd, 11 N. H. 385, § 87. 
 V. Cotter, 3 Jones & L. 496, 
 
 § 321. 
 V. Hall, 26 Mo. 386,^^ 480n. 
 V. Jackson, 3 Casey, 504, §§ 288, 
 
 290. 
 V. Martin, 51 Me. 366, § 1411. 
 V, Nash, 31 Miss. 324, § 326. 
 V. Richardson, 68 N. C. 255, 
 
 § 431. 
 V. Sale, 1 Bailey's Eq. 1, § 226. 
 V. Sedgwick, 9 Beav. 333, § 433. 
 V. Stiles, 11 Ves. Ch. 194. ^ 344. 
 V. Winslow, 2 Mason, 241, g 957. 
 Martindale v. Price, 14 Ind. 115, 
 
 §§ 116, 175. 
 Marvin v. Adamson, 11 la. 371, 
 
 §§ 420, 422. 
 Maiy Washington, The, Chase's 
 
 Dec. 125, g§ 571, 573, 576. 
 Mason v. Martin, 4 Md. 124, § 97. 
 V. Paine. Walk. Ch. 453, §§ 15, 
 
 308. 
 V. Pritchard, 2 Camp. 436, §410. 
 Maspero v. Pedesclaux, 22 La. An. 
 
 227, § 765. 
 Massachusetts Bank v. Oliver, 10 
 
 Cush. 557, § 763. 
 Massey v. McHwain, 2 Hill's Ch. 
 421, § 305. 
 V. Thompson, 2 Nott & McC. 
 
 105, § 101. 
 V. Tm-ner, 2 Houst. 79, § 87. 
 Massie v. Greenhow, 2 Pat. & H. 
 
 255, §§ 8, 29. 
 Masters v. Warren, 27 Conn. 293, 
 § 1239. 
 
 Masterson v. EHIington, 10 Mo. 713, 
 § 1211. 
 V. Hemdon, 10 Wall. 416, 
 
 §§ 1209, 1219. 
 V. Le Claire, 4 Minn, 163, 
 § 1413. 
 Mathews v. AUen, 16 Gray, 594, 
 
 g 956. 
 Matteson v. Smith, 37 Wis. 333, 
 
 §§ 1346, 1371. 
 Matthew v. Dare, 20 Md, 248, 
 
 § 1225, 
 Matthews v. Demerritt, 22 Me, 312, 
 §§ 281, 294. 
 V. Hougliton, 10 Me. 420, § 442. 
 Maul V. Rider, 59 Pa, St. 167, g§ 29, 
 
 210, 279. 
 Maupin v. Emmons, 47 Mo, 304, 
 
 §g 12, 10, 17, 244, 673a, 
 Maundrell v. Maundrell, 10 Ves, 
 
 260, § 57. 
 Maving v. Todd, 1 Stark, 72, § 536, 
 Maxfield v. Burton, L. R, 17 Eq, 
 
 15, §^ 56, 65a, 
 May V. Boisseau, 8 Leigh, 164, § 953, 
 V. Borel, 12 Cal, 91, § 689, 
 V. Burdett, 9 Q. B. 101 ; 1 Halo 
 
 P, C. 430, § 480i. 
 V. Coffin, 4 Mass. 341, § 991, 
 V. Le Claire, 11 Wall. 217, § 316, 
 V. McKeenon, 6 Humph. 209, 
 §96. 
 LlaybeiTy v. Morris, 62 Ala. 113, 
 
 § 372. 
 Maybin v. Kirby. 4 Rich. Eq. 105, 
 
 § 10. 
 Mavlield v. Wheeler, 37 Tex. 256, 
 
 §' 390. 
 Mavham v. Coombs, 14 Ohio, 428, 
 
 §■§ 225, 231a, 245, 248. 
 Mayo V. Cartwright, 30 Ark, 407, 
 
 §97, 
 Mayor, etc, v. Mun-ay, 7 De G, M, 
 & G, 497, § 11, 
 V. Williams, 6 Md, 235, §§ 17, 
 40, 118, 226, 
 McAndrew v. Whitlock, 53 N. Y. 
 
 40, § 564. 
 McAnnelly v. Chapman, 18 Tex. 
 
 198, § 67. 
 McArthur v. Dudgeon, 15 Eq. Cas. 
 
 102, § 1207. 
 McAteer v. McMullen, 2 Pa. St, 32, 
 
 §§ 319, 324. 
 McCabe v. Grey, 20 Cal. 509, §§ 97, 
 208. 
 V. Le Compt, 15 Mo. 78, § 1211, 
 McCamant v. Patterson, 39 Mo. 100, 
 §§ 219, 223.
 
 TABLE OF CASES CITED. 
 
 Iv 
 
 McCann v. Railroad, 20 Md. 202, 
 §553. 
 
 McCarthy v. Railroad, 30 Pa. St. 
 
 247, § 5G6. 
 McClane v. Fitch, 4 B, Mon. 599, 
 
 §781. 
 McClean v. Hertzog, 6 S. «& R. 154, 
 
 § 1263. 
 McCloskv V. Cobb, 2 Bond, 16, 
 
 § 1356." 
 McClure v. Thistle, 2 Gratt. 182, 
 §101. 
 V. Wells, 46 Mo. 311, § 1381. 
 McClurg V. PliilUps, 57 Mo. 214, 
 
 §§ 140, 211. 
 McCollum V. Gushing, 22 Ark. 540, 
 
 § 1388. 
 McComb V. Thompson, 2 Minn. 
 
 139, § 87. 
 McGonneU v. Downs, 48 111. 271, 
 § 480e. 
 V. Reed, 5 111. 117, § 307. 
 V. Slettinius, 7 111. 707, § 1245. 
 McCord V. Beattj^ 12 la. 299, § 434. 
 McCormac v. Irwin. 35 Pa. St. Ill, 
 § 1253. 
 V. Wlieeler, 36 lU. 114, §§ 674, 
 688, 692. 
 McCoy V. Trustees, 5 S. & R. 254, 
 
 §§ 205, 223. 
 McGrummen v. McCrummen, 5 
 
 Mart. (La.) N. S. 158, § 879. 
 McCulloch V. Gowher, 5 Watts & 
 S. 427, § 273. 
 V. Eagle Ins. Go. 1 Pick. 278, 
 
 § 384. 
 V, Eudalay, 3 Yerg. 346, § 217. 
 V. Gregory, 1 Kay& J. 286, §35. 
 McCutchen v. McGahay, 11 Jolins. 
 281. § 671. 
 V. Miller, 31 Miss. 65, §§ 342a, 
 353 
 McDaniel v. Cai-rell, 19 lU. 226, 
 
 § 1354. 
 McDaniels v. Flower Brook Man. 
 
 Co. 22 Vt. 274, § 10. 
 McDermott v. Board of Police, 25 
 Barb. 635, §§ 1139, 1334. 
 V. Strong, 4 Johns. Gh. 687, 
 §§ 342a, 353. 
 McDonald v. Bailey, 14 Me. 101, 
 §937. 
 V. Gaunt, 2 Pac. Rep. 871, § 10. 
 V. Leach, Kingsley (Conn.), 72, 
 
 § 155. 
 V. Western R. Corp. 34 N. Y. 
 497, § 570. 
 McDugald V. Smith, 11 Ired. (N. C.) 
 576, § 1227. 
 
 McElroy v. English, 2 Cranch C. C. 
 
 528, § 820. 
 McFall V. Sherrard, Harper, 295, 
 
 § 101. 
 McFetridge v. Piper, 40 la. 627, 
 
 § 464. 
 McGehee v. Gindrat, 20 Ala. 95, 
 
 §§ 10, 35. 
 McGinnis v. State, 24 Ind. 500, 
 §§ 1262, 1414. 
 V. Washington Hall Ass'n, 12 
 Gratt. 602, § 1239. 
 lilcGregor v. McGregor, 21 la. 441, 
 §357. 
 V. Hall, 3 Stew. & P. 397, § 154. 
 Mcllvaine v. Legare, 34 La. An. 
 
 923, § 1405. 
 Mcintosh V. See, 57 la. 156, § 1415. 
 Mclver v. Richardson, 1 Maul. & S. 
 
 557, § 393. 
 McKeckine v. Hoskins, 23 Me. 230, 
 
 §§ 294, 299. 
 McKenzie v. Perril, 15 Ohio St. 168, 
 
 §273. 
 McKeon v. Lee, 4 Rob. (N. Y.) 449, 
 
 § 577a. 
 McKewer v. Eartland, 33 la. 348, 
 
 § 738. 
 McKilhp V. Mcllhenny, 4 Watts, 
 
 317. § 1257. 
 McKinney v. Brights, 16 Pa. St, 
 399, § 3. 
 V. Crawford, 8 S. & R. 351, 
 
 § 739. 
 V. Rutherford, 1 Dev. & Bat. 
 Eq. 14, § 431. 
 McKinnon v. Bliss, 21 N. Y. 206, 
 
 § 1411. 
 McLanahan v. Reeside, 9 Watts, 
 
 508, § 188. 
 McLaren v. Thurman, 8 Ark. 813, 
 
 § 348. 
 McLaughlin v. Shepherd, 32 Me. 
 
 143, §§ 65a, 273, 277. 
 McLeod V. Fu-st Nat'l Bank, 42 
 
 Miss. 99, §§ 30, 65. 
 McLourine v. Monroe, 30 Mo. 462, 
 
 § 369. 
 McManus v. Lancashire, etc, R'y, 
 
 4 H. & N. 327, § 560. 
 McMechan v. Griffing, 3 Pick, 149, 
 
 §§ 244. 281. 288, 291, 294. 
 McMillan v. M. S. & N. I. R. Co. IG 
 
 Mich. 79, §§ 553, 555, 565, 570. 
 McMurtrie v. Jones, 3 Wash, 206, 
 
 § 843. 
 McNary v. Southworth, 58 111. 473, 
 
 § 316. 
 McNatt V. Jones, 52 Ga. 478, § 871.
 
 Ivi 
 
 TABLE or CASES CITED. 
 
 McNeilage i\ Halloway, 1 B. & 
 
 Aid. 218, g 728. 
 McNeill V. Tenth National Bank, 
 55 Barb. 59. f? 73. 
 V. Wvatt, 3 Humph. 125, §§ 717, 
 735. 
 McNeilly v. Cont. Life Ins. Co. 66 
 
 N. Y. 23, § 671. 
 McNichol V. Pad tic Ex. Co. 12 Mo. 
 
 App. 401, g 1417. 
 McPherson v. Housel, 2 Beasley, 
 
 299, g 339. 
 McQueen v. Farquhar, 11 Ves. 482, 
 
 §34. 
 McRae v. Rhodes. 22 Ark. 315, 
 
 § 1004. 
 McWilliams v. Webb, 32 la. 577, 
 
 § 436. 
 Mead v. Engs. 5 Cow. 303, § 714. 
 V. Lord On-ery, 3 Atk. 235, 
 § 350. 
 Mechanics' Bank v. Griswold, 7 
 Wend. 165, §§ 732, 943. 
 V. Livingston, 33 Barb. 458, 
 
 4^510. 
 V. Seaton, 1 Pet. 309, § 672. 
 V. Schaumburg, 38 Mo. 228, 
 §§ 674, 688. 
 Mechanics' & Traders' Bank v. 
 Gordon, 5 La. An. 604, §§ 480a, 
 542. 
 Mechanics' & Traders' Bank of N. 
 O. V. Compton, 3 Rob. (La.) 4, 
 § 896. 
 Meehan v. Williams, 48 Pa. St. 338, 
 
 §§ 29, 44, 288, 294, 688. 
 Meeker v. Van Renssalaer, 15 
 
 Wend. 397, § 4807i. 
 Mellon's Appeal, 32 Pa. St. 121, 
 
 §227. 
 Melvin v. Clark, 45 Ala. 285, § 1374. 
 Mendioca v. Ovr, 16 Cal. 368, J^ 1363. 
 Mentross v. Clark, 2 Sandf. 115, 
 
 §94a. 
 Mercantile Ins. Co. v. Corcoran, 1 
 
 Gray, 75, § 440. 
 Merch v. Smith, 7 Wend. 315, 
 
 § 480o. 
 Merchants' Bankr. Birch, 17 Johns. 
 25, i^ 766. 
 V. Easley, 44 Mo. 286, § 1017. 
 Merchants' Disp. Tr. Co. v. Hallock, 
 
 64 ni. 284, § 566. 
 Merchants' National Bank v. Com- 
 
 stock, 55 N. Y. 24, § 94&. 
 Meredith v. Santa Clara, etc. Min. 
 
 Ass'n, 60 Cal. 617, § 1186. 
 Merriam v. H. & N. H. R. Co. 20 
 Conn. 354, §§ 455, 456, 532. 
 
 Merrick v. Phillips, 58 Mo. 4CG, 
 ^§ 80, 87. 
 V. Wallace, 19 111. 486, §§ 152, 
 307. 
 Merril v. Dawson, 1 Hemp. 563, 
 
 §§ 1246, 1404. 
 Merrill v. Ireland, 40 Me. 569, § 96. 
 V. Montgomery, 25 ^Mich. 73, 
 § 1032. 
 Merrills v. Swift, 18 Conn. 257, 
 
 §§ 180, 181. 
 Merriman v. Hyde, 2 Neb. 120, 
 
 §118. 
 Merritt v. White, 37 Miss. 438, 
 
 § 1367. 
 Mersey, The, Blatch. Prize Cas. 
 
 187,"§ 1417. 
 Mertins v. Joliffe, Amb. 811, 
 
 § 313. 
 Merwin v. Smith, 2 N. J. Eq. 182, 
 
 § 1088. 
 Merz V. Kaiser, 2 La. An. 577, 
 
 § 855. 
 Meshke v. Van Doren, 16 Wis. 319, 
 
 § 1414. 
 Mesick v. Sunderland, 6 Cal. 297, 
 
 §g 122, 191. 
 Messenger v. Armstrong, 1 T. R. 
 43, § 649. 
 V. Penn. R. R. Co. 37 N. J. L. 
 531, § 555. 
 Metcalf V. Pulvertoft, 2 Ves. & 
 Beam. 200, § 348. 
 V. Richardson, 2 Eng. L. & Eq. 
 
 301, § 831. 
 V. Smith, 40 Mo. 572, § 348. 
 Metropolitan Bank v. Godfrey, 23 
 
 111. 579. §§ 284, 299. 
 Metz V. Osborne, 5 Mo. 546, § 975. 
 V. State Bank, etc. 7 Neb. 171, 
 §96. 
 Meux V. Anthony, 11 Ark. 411, 
 §348. 
 V. Bell, 1 Hare, 73, § 433. 
 V. Maltby, 2 Sw. 281, § 282. 
 Meyrick v. Woods, Carr. & Marsh. 
 
 452, ^§ 128G, 1292. 
 
 Mich. Cent. R. Co. v. Dolan, 32 
 
 Mich. 510, § 674. 
 
 V. Hale, 6 Mich. 243, § 555. 
 
 V. Ward, 2 Mich. 538, § 574. 
 
 Michigan, etc. R. v. Heaton, 3 Ind. 
 
 448, § 553. 
 Michigan Ins. Co. v. Whittimore, 
 
 12 Mich. 427, § 1204. 
 Micliigan State Bank v. Peck, 28 
 
 Vt. 200, 4; 402. 
 Middlebury College v. Cheney, 1 
 Vt. 348, § 1405.
 
 TABLE OF CASES CITED. 
 
 Ivii 
 
 Milam v. Strickland, 45 ]\Iiss. 721, 
 
 § 1368. 
 llilbourn v. Fouts, 4 Green (Ik.), 
 
 346, § 13G5. 
 Miles V. Goffinet, 16 Mich. 280, 
 § 1170. 
 V. Hall, 12 Sm. & M. 332, § 893. 
 V. Langley, 1 Rus?, & My. 39, 
 §^ ma, 288, 303. 
 Mill V. HiU, 12 Jones & L. 107, 
 
 §104. 
 Miller v. Bradford, 12 la. 14, §§ 148, 
 149, 167. 
 V. Cresson, 5 W. & S. 284, 
 
 §>J 7, 29. 
 V. Finley, 26 Mich. 255. § 94a. 
 V. Florer. 15 Ohio St. 148, § 431. 
 V. Graham, 17 Ohio St. 1, § 1109. 
 V. Hackley, 5 Jolms. 375, 
 
 g.^ 975, 1021. 
 V. ni. etc. R. Co. 24 Bai-b. 313, 
 
 §683. 
 V. Kershaw', 1 Bailey's Eq. 479, 
 
 §349. 
 V. Myles. 46 Cal. 535. § 280. 
 V. Perrine, 1 Hun (N. Y.), 620, 
 
 § 1314. 
 V. Race, 1 Burr. 452. § 81, 
 V. Sherry, 2 Wall. 237, §§ 351, 
 353. 
 
 Stocking, 22 Wend. 623, 
 § 1170. 
 Milliken v. Barr, 7 Pa. St. 23, 
 
 §§ 1258, 1261. 
 Mills V. Beard, 19 Cal. 158, § 936. 
 V. Bliss, 55 N. Y. 139, §'374. 
 V. U. S. Bank, 11 \Vheat. 431, 
 §§ 480o, 836. 
 ]ymton V. Rowland, 11 Ala. 732, 
 §§ 1222, 1254. 
 V. Turner, 38 Tex. 81, § 195. 
 JMims V. Mims. 35 Ala. 23, § 152. 
 V. Swai-tz, 37 Tex. 13, § 1404. 
 Miner -y. Clark, 15 Wend. 42o, §480c. 
 V. Natchez, 4 S. & M. 602, 
 §§ 1086, 1095. 
 Mines v. West, 38 Ga. 18, § 372. 
 Minna, The, Blatch. Prize Cas. 333, 
 
 § 1417. 
 Mmturn v. Fisher, 7 Cal. 573, § 938. 
 Miser v. Trovinger, 7 Ohio St. 281, 
 
 §§ 732, 758, 1004. 
 Missouri, Kan. & Tex. R. Co. v. 
 
 Crowe, 9 Kan. 496, § 1310. 
 Missouri Pac. R. Co. v. Nevin, 2 
 
 Pac. Rep. 795, § 4S0a. 
 Mitchell V. Cross, 2 R. I. 437, § 805. 
 V. Gray, 18 Ind. 123, g§ 1084, 
 1138. 
 
 IMitchell V. Greenwald, 43 Miss. 167, 
 § 1375. 
 V. Lipe, 8 Yerg. 179, §§ 1097, 
 
 1098. 
 V. Runkle, 25 Tex. Supp. 132, 
 
 §§ 1138, 114.3. 
 V. Smith, 53 N. Y. 413, § 374. 
 V. Stewai-d, 35 L. J. Ch. 398, 
 
 §30. 
 V. Woodson, 37 Miss. 567, 
 § 1070. 
 Mobile, etc. R. Co. v. Hopkins, 41 
 Ala. 486, § 558. 
 V. Prewitt, 46 Ala. 63, § 566. 
 V. Weiner. 49 Miss. 725. § 553. 
 V. Whitney, 39 Ala. 4C8, §1405. 
 Moblev V. Clark, 28 Bai-b. 390, 
 § 1019. 
 V. Leophart, 47 Ala. 257, § 1065. 
 Mocatta v. Murgati'oyd, 1 P. Wms. 
 
 393, § 813. 
 Mochler v. Towa of Shaf tsbury, 46 
 Vt. 580; 14 Am. Rep. 634. § 480g. 
 Modavvell r. Hoim-s, 40 Ala. 391, 
 
 § 1417. 
 Mohawk B.uik r. Broderick, 13 
 Wend. 133. § 4S0o. 
 V. Corey, 1 HiU, 513, § C46. 
 Mohr V. Bost. & Alb. R. Co. 106 
 Mass. 67, § 1019. 
 V. Chic. & N. W. R. Co. 40 la. 
 579, § 566. 
 Moline, Ex parte, 19 Ves. Ch. 316, 
 
 §§ 769, 770, 781, 782. 
 Mollett V. Brayne, 2 Camp. 103, 
 
 §646. 
 Molony v. Kernon, 2 Dr. & War. 
 
 40, § 660. 
 
 Monell V. Smith, 5 Cow. 441, § 180. 
 
 Monroe v. Conner, 15 Me. 178, § 525. 
 
 V. Eastman, 31 Mch. 283. § 64. 
 
 Monroe County Com'rs v. May, 67- 
 
 Ind. 562, § 1411. 
 Montefiore v. Brown, 7 H. L. Cas. 
 
 241, §§ 11, 208, 230. 
 Montelius v. Chai'les, 76 El. 303, 
 
 § 816. 
 Montgomery v. Birge, 31 Ark. 491, 
 § 346. 
 V. Byers, 21 Cal. 107. § 374. 
 V. Deeley, 3 Wis. 709, § 1406. 
 Montgomery County Bank v. 
 
 Marsh, 7 N. Y. 481, § 895. 
 Montgomery, etc, R. Co. v. Trebles, 
 
 44 Ala. 255, § 740. 
 Moody V. Mack, 43 Mo. 210, §§ 789, 
 1009. 
 V. Setton, 2 Ired. Eq. 382, § 431. 
 V. State. 48 Ala. 115, § 1404.
 
 Iviii 
 
 TABLE OF CASES CITED. 
 
 Mooney v. Kennett, 19 Mo. 551, 
 
 § 1409. 
 Moore v. Bennett, 2 Ch. Cas. 246, 
 §g !•"), 313. 
 V. Coats, 43 Miss. 225, § 1375. 
 V. Gammel. 13 Tex. 120, g 1251. 
 V. Rvder, 65 N. Y. 440, § 946. 
 Moore, the John T., 4 Am. L. T. 
 
 406, ^ 231. 
 More V. Massini, 32 Cal. 590, § 428. 
 Moreau v. Branham, 27 Mo. 351, 
 §211. 
 V. Detchemendy, 18 Mo. 522, 
 §g 119, 211. 
 !^^o^ecock v. Dickens, Amb. 678, 
 
 § 104. 
 3Iorehead v. Gilmore, 77 Pa. St. 
 
 118, t^ 80. 
 Moreland v. Le Master, 4 Blackf. 
 aS3. g;i 44, 48. 
 V. Richaidson, 22 Beav. 596; 
 24 Beav. 33, §^ 282, 303. 
 Morgan v. Bank of Louisville, 4 
 Bush, 82, § 988. 
 V. Dibble, 29 Tex. 107, g 570. 
 V. Jones, 24 Ga. 155, g 1272. 
 V. State, 12 Ind. 448, § 1414. 
 V. Stell, 5 Binn. 305, ^ 671. 
 V. Woods, 33 Ind. 23, § 1318. 
 Morland v. Cook, L. R. 6 Eq. 252, 
 
 §65a. 
 Morrill v. Moulton, 40 Vt. 242, 
 
 §§ 2, 72, 1238. 
 Morris v. Bailey, 15 La. An. 2, 
 § 1140. 
 V. Hauser, 2 Mood. & R. 392, 
 
 § 1282. 
 V. Ho-le, 37 ni. 150, §§ 307, 
 
 1075. 
 V. Mai-tin, 1 Str. 647, § 671. 
 V. Rexford, 18 N. Y. 552, § 72. 
 V. Shrvock, 50 Mss. 590, §g 465, 
 
 474. 
 V. Wadsworth, 17 "Wend. 103, 
 §208. 
 Moi-ris & Essex R. Co. v. Ayers, 29 
 
 N. J. L. 393, §§ 568, 570. 
 Morrison v. Kellev, 22 111. 610, § 307. 
 V. March, 4 Minn. 422, § 278. 
 V. McCartney, 30 Me. 183, 
 § 1009. 
 Morrow v. Commonwealth, 48 Pa. 
 St. 305, § 1281. 
 V. Weed, 4 la. 77, §§ 1160, 1161, 
 1370. 
 Morrow's Assignees v. Bright, 20 
 
 Mo. 298, § 431. 
 Morse v. Hewett, 28 Mich. 481, 
 S 1405. 
 
 Morton v. Robar(\s, 4 Dana, 258, 
 §§ 232. 266, 273. 
 V. Westcott, 8 Cush. 425, §§ 888, 
 902. 
 Moseley v. Mastin, 37 Ala, 216, 
 
 § 1417. 
 Moses V. Bost. & Me. R. Co. 24 N. 
 H. 71 : 32 N. H. 523, §§ 532, 
 533, 509, 577. 
 V. Ela, 43 N. H. 557, § 946. 
 Moshier v. Reding, 12 Me. 478, 
 
 i;§ 581. 583. 
 Mosley v. Hatch,108 Mass. 517,§ 677. 
 V. Vermont, etc. Ins. Co. 55 
 Vt. 142, § 1416. 
 Moss V. Atkinson, 44 Cal. 3, §§ 65a, 
 
 273, 279. 
 Mossman v. Foirest, 27 Ind. 233, 
 
 § 1410. 
 Mottr. Clark, 9 Pa. St. 399, §§ 119, 
 2G2. 
 V. Lansing. 5 Lans. 516, § 1214. 
 Mottram v. Hever, 5 Den. 629, 
 
 §§ 459, 469. 
 Moulton V. de ma Carty, 6 Rob. (N. 
 Y.) 470, § 1319. 
 t'. Mason. 21 Mich. 364, § 1275. 
 Mountford v. Scott, T. & R. 274, 
 
 § 689. 
 Mount Pleasant Bank v. McLeran, 
 
 26 la. 300, g§ 697. 712. 
 Mount Vernon Bank v. Holden, 2 
 
 R. I. 467, § 821. 
 Mowatt V. Howland, 3 Day, 353, 
 
 i^513. 
 Mower v. Leicester, 9 Mass. 247, 
 
 § 480fir. 
 Movnaiian v. Hanford, 42 Mich. 
 
 330, § 87. 
 Mueller v. Bates, 2 Disney (Ohio), 
 318, § 1378. 
 V. Eugeln. 12 Bush, 441, §§ 77, 
 307, 322, 336. 
 Muu- V. JoUv, 26 Beav. 143, §§ 297, 
 299." 
 V. Schenck, 3 Hill, 228, § 436. 
 Mulford V. Griffin, 1 Fost. & F. 145, 
 
 § 486. 
 MuUen v. Higgins, 13 Abb. Pr. (N. 
 
 S.) 297, § 1161. 
 MuUer v. Hoyt, 14 Tex. 49, § 1259. 
 MuUigan v. Railroad, 36 la. 181, 
 
 S 554. 
 MuUiken v. Graham, 72 Pa. St. 484, 
 
 §g 7, 28, 36. 
 MuHins V. Sparks, 43 IMiss. 129, 
 § 1345. 
 V. Wimberly, 50 Tex. 457, 
 §§ 65a, 273, 279.
 
 TABLE OF CASES CITED. 
 
 lix 
 
 MuUison's Estate, 68 Pa. St. 312, 
 
 §65a. 
 Mulvey v. Carpenter, 78 ni. 580, 
 
 § 1205. 
 Miimma v. McKee,10 la. 107, § 1327. 
 Munday v. Vawter, 3 Gratt. 518, 
 
 § 176. 
 Mundorf v. Wickersham, 63 Pa. St. 
 
 87: 3 Am. Rep. 531, § 671a. 
 Mimn V. Baker, 3 Stark. 255, §g 539, 
 550. 
 V. Baldwin, 6 Mass. 816, § 882. 
 V. Best, 63 Mo. 491, § 316. 
 V. Burch, 25 111. 35, § 1417. 
 V. Commission Co. 15 Jolms. 
 44, ij '663. 
 Munroe v. Eastman, 31 Mich. 283, 
 
 sio. 
 
 Munson v. Town of Derby, 37 Conn. 
 
 298 ; 9 Am. Rep. 332, y? 480g. 
 Murcliison v. McLeod, 2 Jones (N. 
 
 C.) L. 239. 8 1260. 
 Murdock v. Finney, 21 Mo. 138, § 436. 
 Murphy r. Hendricks, 57 Ind. 593, 
 § 176. 
 V. Keves, 39 N. Y. Sup. Ct. 18, 
 §"94a. 
 Murray v. Arnisti'ong, 11 Mo. 209, 
 § 586. 
 V. Ballou, 1 Johns. Ch. 506, 
 
 ^ 341. 
 V. Barney, 34 Barb. 336, § 1417. 
 V. Blatcliiord, 1 Wend. 583, 
 
 ^ 366. 
 V. Finster, 3 Johns. Cla. 155, 
 
 S 341. 
 V. King, 5B. & Aid. 165, § 1397. 
 V. Lardner, 2 Wall. 110, g 80. 
 V. Lylburn, 2 Johns. Ch. 441, 
 
 § 431. 
 V. Mumford, 6 Cow. 441. § 496. 
 Mun-ell V. AVatson, 1 Tenn. Ch. 
 
 342. § 307. 
 Musgrove v. Bonser, 5 Oreg. 313, 
 
 g§'4, 7, 13, 136, 246. 250, 673a. 
 Musick V. Barney, 49 Mo. 458, §§ 12, 
 
 133. 
 Mussey v. Raynor, 23 Pick. 323. 
 
 §i^ 388, 397. 
 Mussina v. Moore, 13 Tex. 7, § 1082. 
 Mut. Life Ins. Co. v. Dake, 1 Abb. 
 
 (N. Cas.) 381, § 165. 
 Myers v. Davis, 23 N. Y. 489, § 431. 
 V. Overton, 4 E. D. Smith (N. 
 
 Y.), 428, § 1160. 
 V. Ross, 3 Head (Tenn.), 59, 
 K^ 676, 694. 
 Mysoner v. French, 73 N. C. 609, 
 § 143a. 
 
 Nalle V. Fenwick, 4 Rand. 585, 
 
 § 1101. 
 Naron v. Gwin, 43 ]\Iiss. 346, 
 
 § 1375. 
 Nash V. Gilkeson, 5 S. & R. 352, 
 § 1321. 
 V. Harrington, 1 Aik. 49; 2 
 Aik. 9, §§ 973, 991. 
 Nashville Bank v. Bennett, 1 Yerg. 
 
 166, g§ 884, 885. 
 Nashville R. Co. v. Elliott, 1 Cold. 
 
 (Tenn.) 611. § 674. 
 Nathan v. Sloan, 34 Ai'k. 534, § 87. 
 National Bank v. Burkhardt, 100 
 U. S. 686, § 480n. 
 V. Marr, 6 Bush (Ky.), 614, 
 
 S Qftfi 
 V. Norton* 1 HiU,-572, § 683. 
 National Exch. Co. v. Drew, C3 
 
 Eng. L. & Eq. 1, § 654. 
 National Ins. Co. v. Chamber of 
 
 Com. 69 111. 33, § 1381. 
 National Pemberton Bank v. Loii- 
 
 gee, 108 Mass. 371, § 87. 
 
 National Security Bank v. Cush- 
 
 man, 131 Mass. 490, ^§ 683, G83a. 
 
 Neal V. Railroad, 8 Jones L. 483, 
 
 § 566. 
 
 V. Taylor, 9 Bush, 380, §§ 794, 
 
 846. 
 V. Wood, 33 Ind. 533, § 933. 
 Neale v. Ha.gthrop, 3 Bland, 551. 
 
 g§ 15, 310, 313. 
 Nealley v. Greenough, 25 N. H. 
 
 335, § 1363. 
 Neardhouser v. State, 28 Ind. 257, 
 
 § 1410. 
 Neese v. Farmers' Ins. Co. 55 la. 
 
 604, § 1405. 
 Neesome v. Clarkson, 2 Hare, 163, 
 
 §690. 
 Nelson v. Allen, 1 Yerg. (Tenn.) 
 360, § 327. 
 V. Bridgeport, 8 Beav. 527, 
 
 § 1405. 
 V. Hageistown Bank, 27 Md. 
 
 51, § 96. 
 V. Pierce, 6 N. H. 194, § 1119. 
 V. Sims, 1 Cush. (Miss.) 383, 
 
 §§ 17. 30. 
 V. Wade, 21 la. 49, §§ 176, 286. 
 Neltharpe v. Holgate, 1 Coll. 203, 
 
 §303. 
 Nesbit, In re, 2 D. & L. 529, § 1404. 
 Nevan v. Roup, 8 la. 207, § 1253. 
 Nevins r. Bank, 10 Mich. 547, 
 §§ 831, 829, 846.
 
 Ix 
 
 TABLE OF CASES CITED. 
 
 Ne%v England Car Spring Co. v. 
 Union Rubber Co. 4 Blatchf. 1, 
 tj 1309. 
 New Haven Co Bank v. Mitchell, 
 
 15 Conn. 20G. ij 101. 
 New Hope Bridge Co. v. Phoenix 
 
 Bank, 3 N. Y. loG, ^ 683. 
 New Jersey St. Nav. Co. v. Mer- 
 chants' Bank, 6 How. 344, §§ 553, 
 559. 
 New Orleans v. Labott, 33 La. An. 
 
 107, 45 1409. 
 New Orleans, etc. Canal Co. v. 
 Templeton, 20 La. An. 141, § 1404. 
 New Orleans Savings Bank v. Har- 
 per, 12 Rob. (La.) 231. § 997. 
 New York Cent. Ins. Co. r. Kelsey, 
 13 How. Pr. 535, g 1178. 
 V. National Prot. Ins. Co. 20 
 Barb. 408. § 688. 
 New York, etc. Co. v. Schuyler, 34 
 
 N. Y. 30, g G83«. 
 
 New York Life Ins. Co. v. Cutler, 
 
 3 Sandf. Ch. 170, g;< 294. 299. 
 
 V. Smith. 2 Barb. Ch. 82, S 431. 
 
 Newborn v. Just, 2 Carr. & P. 76, 
 
 § 558. 
 Newconiet i'. Brotzman, 69 Pa. St. 
 
 185, § 521. 
 Newhall v. Cent. Pac. R. Co. 51 
 Cal. 345, § 472. 
 V. Pierce, 5 Pick. 450, §§ 297, 
 
 299, 305. 
 V. Vargas. 13 Me. 93, §§ 457, 
 464, 477. 
 Newlin v. Newlin, 8 S. & R. 41, 
 
 § 1321. 
 Newman r\ Chapman, 2 Rand. 93, 
 §§ 338. 357. 
 V. Cincinnati, 18 Ohio, 331, 
 § 1055. 
 Newmarch v. Clay, 14 East, 239, 
 
 §§ 486, 490, 492. 
 Newsom v. Clarkson, 2 Ha. 163, 
 
 § 308. 
 Newsome r. Coles, 2 Camp. 617, 
 §g 483. 487, 513. 
 V. Collins, 43 Ala. 656, §§ 307, 
 828. 
 Newstead v. Seai'les, 1 Atk. 265, 
 
 §672. 
 Newton v. McLean, 41 Barb. 285, 
 4? 96. 
 V. State Bank, 14 Ark. 9, § 1094. 
 Newton's Heirs v. State Bank, 22 
 
 Ark. 19, §1091. 
 Nice's Appeal, 54 Pa. St. 200, § 96. 
 Nichols I'. Boston, 98 Mass. 39, 
 g 1313. 
 
 Nicholson v. Gouthit, 2 H. Bl. 609, 
 ^g 952, 991. 
 V. Marders, 3 Rob. (La.) 242, 
 §897. 
 Niles V. Martin, 4 Mich. 557, § 4S0g. 
 Nixon V. Hamilton, 2 Dr. & Wail. 
 364. g 689. 
 V. Palmer, 8 N. Y. 398, §§ 663, 
 667. 
 Noble V. Thompson Oil Co. 79 Pa. 
 
 St. 354, g 432. 
 Noel V. McCoory, 7 Coldw. 623, 
 
 §602. 
 Norcross v. Widgery, 2 Mass. 505, 
 
 §§ 244, 278. 
 Normanvdle v. Pope, 2 Cro. 137, 
 
 § 1390. 
 Norris v. Despard, 38 Md. 491. § 87. 
 
 r. Le Neve, 3 Atk. 26, § 688. 
 North r. Turner, 9 S. & R. 244. 
 
 §428. 
 North Bank v. Abbott, 13 Pick. 
 
 465. g 1397. 
 North River Bank v. Aymar, 3 Hill 
 (N. Y.), 262, §g 660, 681, 683, 683«. 
 North Whitehall, In re, 47 Pa. St. 
 
 156, § 1132. 
 Northern v. Williams, 6 La. An. 
 
 578, § 563. 
 
 Northriip v. Shephard, 23 Wis. 513, 
 
 § 1371. 
 
 V. Svracuse, B. & N. Y. R. Co. 
 
 3 Abb. App. Dec. 386, § 57(>. 
 
 Northrup's Lessee v. Brehmer, '■'- 
 
 Ohi(i, 392, g 225. 
 Noi-thy V. Field, 2 Esp. 613, § 469. 
 Norton v. Birge, 35 Conn. 25.). 
 §347. 
 V. Eastman, 4 Me. 521, §§ 383, 
 391. 
 • V. Foster, 12 Kan. 44. § 431. 
 V. Hevwood, 20 Me. 359. g 1272. 
 V. Lewis, 2 Conn. 478, § 1397. 
 V. Pickering, 8 B. & C. 610, 
 
 § 1004. 
 V. Rose, 2 Wash. (Va.) 23o. 
 §436. 
 Norvell v. Hudgins, 4 Munf. 490, 
 
 §92a. 
 Norway v. Rowe, 19 Ves. 144, 
 
 § 65a. 
 Norway Plains Co. v. Boston & M. 
 
 R. Co. 1 Gray, 263, §g 564, 566. 
 Noyes v. Hall, 97 U. S. 34. §§ 65a, 
 244. 246, 273, 276, 288. 
 r. Harr, 13 la. 570. § 167. 
 Nugent V. Opdike, 9 Hob. '(La.) 453, 
 
 §434. 
 Nute V. Nute, 41 N. H. 60, § 17.
 
 TABLE OF CASES CITED. 
 
 Ixi 
 
 O. 
 
 O'Brien v. Norris, 16 Md. 122, § 457. 
 O'Comier v. Koch, 56 Mo. 259, 
 
 § 1414. 
 O'Neil V. Garrett, 6 la. 480. § 463. 
 O'Neill V. N. Y. & Hud. E. E. Co. 
 
 60 N. Y. 138, § 532. 
 O'EeillY V. Nicholson, 45 Mo. 160, 
 
 §339. 
 O'Eourke v. O'Connor, 39 Cal. 442, 
 
 §§ 6oa, 279, 286. 
 Oakes v. Munroe, 8 Cush. 282, §631. 
 Oats V. Walls, 28 Ark. 244, § 1'53. 
 Occuni Co. V. Sprague Co. 34 Conn. 
 
 529, § 480/1. 
 Odd Fell. S. Bank v. Banton, 46 
 
 Cal. 604, § 96. 
 Oeh-icks v. Ford, 23 How. 49, 
 
 § 480». 
 Ogden r. Cowley, 2 Johns. 274, 
 § 1397. 
 V. Dobbin, 2 Hall, 112, § 717. 
 V. Haven, 24 111. 57, § 264. 
 V. Walters, 12 Kan. 282, § 1048. 
 Oglesby v. Steamboat, 10 La. An. 
 
 117, § 956. 
 Ohio, etc. Co. v. Ledyard, 8 Ala. 
 866, § 96. 
 V. Selbv, 47 Ind. 471, § 558. 
 Olcott V. Eobinson, 21 N. Y. 150, 
 
 §1101. 
 Olendorf v. Swartz, 5 Cal. 480, 
 
 §964. 
 Oliver v. Bank of Tenn. 11 Humph. 
 74, §§ 1004, 1005. 
 V. Harvev, 5 Oreg. 360, § 1220. 
 V. Piatt, 3 How. 333, §§ 11, 15, 
 308, 312. 
 Oppenheimer v. U. S. Ex. Co. 69 
 
 111. 62, § 554. 
 Orange County Bank v. Brown, 9 
 
 Wend. 85. Ji 542. 
 Orear v. McDonald, 9 GUI, 350, 
 
 § 1011. 
 Oriental Bank v. Blake, 22 Pick. 
 
 206, § 763. 
 Ormsby v. Town of Granby, 48 Vt. 
 
 44, § 1222. 
 Orndorf v. Adams Ex. Co. 3 Bush, 
 
 194, §§ 553, 558. 
 Orr V. McGiuness, 7 East, 359, 
 
 § 1009. 
 Orrick v. Colston, 7 Gratt. 189, 
 
 § 87. 
 Orr Water Ditch Co. v. Reno W. 
 
 Co. 5 W. Coast Rep. 666, § 6836. 
 OrvLs V. Newell, 17 Conn. 97, 
 
 §§ 191, 208. 
 
 Osborn r. Cloud, 21 la. 238, § 1188. 
 Osborne v. Moncure, 3 Wend. 170, 
 
 § 780. 
 Ostrander v. Brown, 15 Johns. 89, 
 
 §§ 574, 576. 
 Oswald v. Grew, 29 Eng. L. & Eq. 
 
 85. § 1138. 
 Oswego Bank v. Knower, HiU & 
 
 Den. 122. § 946. 
 Otis V. Dargan, 53 Ala. 178, § 1084. 
 Ottuniwa V. Parks, 4U la. 119, 
 
 § 480«i. 
 Ouimet v. Henshaw, 35 Vt. 604, 
 
 §570. 
 Overman v. Hoboken City Bank, 
 
 30 N. J. L. 61, § 480o. 
 Owen V. Homan, 4 H. L. 997, 
 
 §§ 10, 11. 
 Owens V. Kinsey, 6 Jones' L. (N. C.) 
 38, § 1224. 
 V. Miller, 29 Md. 144, § 225. 
 V. Roberts, 36 Wis. 258, §§ 672, 
 690. 
 Owings V. Hull, 9 Pet. 607, § 1404. 
 Oxford Bank v. Haynes, 8 Pick. 
 
 423, § 418. 
 Oxford Rate, 8 El. & Bl. 184, i; 1407. 
 Oxwith V. Plummer, 2 Vern. 636, 
 
 §§ 65a, 281, 294, 303. 
 
 Packard v. Getman, 6 Cow. 757, 
 § 453. 
 V. Johnson, 51 Cal. 545, § 96. 
 Packwood v. Gridley, 39 111. 388, 
 
 §88. 
 Page V. Thompson, 43 N. H. 378, 
 § 434. 
 V. Waring, 76 N. Y. 463, g§ 96, 
 206, 357, 375. 
 Pagett V. Curtis, 15 La. An. 451, 
 
 § 1136. 
 Paine i\ Mooreland, 15 Ohio, 435, 
 
 §S 1057, 1160. 
 Palfrey v. Portland, etc. R. Co. 4 
 
 Allen, 55, § 1405. 
 Palgi-ave v. Windliam, 1 Str. 212, 
 
 § 1387. 
 Fallen v. Hollidaysburg, 40 Pa. St. 
 
 206, § 44. 
 Palmer v. Bates, 22 Minn. 532, § 297. 
 V. Wheeler, 2 Ba. & B. 18, 
 g§ 15, 313. 
 Palomeres, Estate of, 63 Cal. 403, 
 
 § 1136. 
 Papin V. Buckingham, 38 Mo. 454, 
 § 1191- " 
 V. Ryan, 32 Mo. 21, § 1404.
 
 Ixii 
 
 TABLE OF CASES CITED. 
 
 Parent v. Walmslcy, 20 Ind. 82, 
 
 § 1404. 
 Parish v. Brooks, 4 Brews. 154, 
 
 §§ 30, 65. 
 Park V. Bates, 12 Vt. 387, § 280e. 
 Parke v. Chadwick, 8 W. & S. 96, 
 
 §§ 10, 10. 
 Pai-ker v. Fay, 43 Miss. 2G0, § 29. 
 V. Hill, 8 Mete. 447, §§ 119, 141, 
 
 142, 143. 
 V. Kane. 4 Wis. 1, §^ 10, 16. 
 V. Header, 32 Vt. 300, § 1300. 
 V. Middlebrook, 24 Conn. 207, 
 
 <^G7. 
 V. Osgood. 3 Allen, 487, § 14. 
 V. Sedwick. 5 Md. 281, § 1300. 
 V. Whyte, i H. & M. 167, § 286. 
 Parkin v. Carruthers, 3 Esp. 246, 
 
 g§ 483, 517. 
 Parkist v. Alexander, 1 Jolms. Ch. 
 
 394, gj5 112, 113. 
 Parks tJ. Jackson, 11 Wend. 442, 
 
 §§ 363, 368. 
 Parman v. Brewster, 15 Gray, 271, 
 
 §423. 
 Parnilee v. Gather wood, 36 Mo. 
 
 479, § 76. 
 Parret v. Shaubhut, 5 Minn. 323, 
 
 §§ 119, 137. 
 Parry v. May, 1 IMood. & Eob. 279, 
 
 V. Woodson, 33 Mo. 347, g 1318. 
 Parsons v. Hoyt, 24 la, 154, §§ 360, 
 368, 
 V. Loyd, 3 Wilson, K, B. 341, 
 
 § 1159. 
 V. Monteath, 13 Barb, 353, 
 §553, 
 Partridge v. Davis, 20 Vt. 499, 
 §§ 420, 422. 
 V. Smith, 2 Biss, 183, §§ 12, 
 161. 183. 
 Pate V. McClm-e, 4 Poind, 164, § 956, 
 Path V. Anstatt, 4 W. & S. 307, 
 
 §96. 
 Patience i\ Townley, 2 J. P, Smith, 
 
 223, § 982. 
 Patrick v. Davis, 15 Ark, 363, 
 § 1109, 
 V. Morse. 64 Cal. 462, § 1201, 
 Patten v. iloore, 32 N. H. 382, 
 
 §§ 113, 288, 290. 
 Patterson v. Dormer, 48 Cal. 369, 
 §96. 
 V. Franklin Ins. Co. 22 Pittsb. 
 
 L. J. 201, § 488*1. 
 V. Hubbard, 30 Bl. 201, § 1226. 
 V. McCausland, 3 Bland, 69, 
 § 1415. 
 
 Patterson v. AVynn, 5 Wheat. 232, 
 
 § 1413, 
 Patton V. Caldwell, 1 Dall. 419, 
 § 480/, 
 V. Gleason, 106 Mass, 439, 
 
 §94a. 
 V. Ins. Co, 40 N. H, 375, §§ 687, 
 689. 
 Paul V. Clu-istie, 4 Harr, & McH. 
 161, § 748. 
 V. Connersville, etc. R, Co. 51 
 
 Ind. 527, §§ 16, 25. 
 
 V. Witmau, 3 W, & S, 409, 
 
 g?$ 480o, 480d, 
 
 Payne v. Cave, 3 T. R. 148, § 381. 
 
 V. Floiu-uoy, 29 Ai'k. 500, § 87, 
 
 V. Patrick, 21 Tex, 680, § 714. 
 
 Pavne v. TreadweU, 16 Cal. 220, 
 
 g;5 1404, 1405. 
 Paytona, The, 2 Curtis, 21, § 573. 
 Peabody r. Fenton, 3 Barb, Ch, 451, 
 ^24. 
 r. Hamilton, 106 Mass. 217, 
 
 ^ 1357. 
 r, Phelps, 9 Cal. 213, § 1146. 
 Peacock v. Purcel, 14 C. B. (N. S.) 
 
 V. Rhodes, 2 Doug. 611, g 80. 
 Peak V. North Staffordshire R, Co. 
 
 10 H. L. Cas. 478, § 560. 
 Pearce v. Hooper, 3 Taunt. 60, 
 § 1278. 
 V. Longfit, 101 Pa. St. 507, 
 § 1410, 
 Pearson v. Bradley, 48 111. 250, 
 g 1102. 
 V. Crallan, 2 Smith, 404, § 823. 
 V. Daniel, 2 Dev. & Bat. 366, 
 
 §7. 
 V. Dai-rington, 32 Ala. 227, 
 
 § 1417. 
 
 V. Lovejoy, 53 Barb, 407, § 1198, 
 
 V. Morgan, 2 Bro. Ch. 353, §§ 7, 
 
 35, 
 
 Peay v. Capps, 27 Ark, 160, § 316. 
 
 Peck V. Mallams, 10 N, Y, 509, 
 
 §§ 149, 158. 
 Peckham v. Oilman, 7 Minn. 449, 
 
 §87. 
 Peebles v. Reading, 8 S. «fe R. 484, 
 
 J5 29. . 
 Peet V. Zanders, 6 La. An. 364, 
 
 § 990. 
 Pell V. McEh-oy, 36 Cal, 268, §§ 65a. 
 
 273, 280, 299. 
 Pelton V. Renssalaer, etc. R. Co. 54 
 
 N. Y. 214, g 576. 
 Pendleton v. Commonwealth, 4 
 Leigh, 694, § 1262.
 
 TABLE OF CASES CITED. 
 
 Ixiii 
 
 Pendleton v. Fay, 2 Paige, 202, 
 
 §§ 10, 22. 
 Pennell v. Monroe, 30 Ai-k. 661, 
 
 § 1115. 
 Pennoyer v. Neff, Q5 U. S. 714, 
 
 § 1057. 
 Pennsylvania Co. v. Frana, 13 111. 
 
 App. 91, i5 1410. 
 Pennsylvania R. Co. v. Henderson, 
 51 Pa. St. 315, § 558, 
 V. McClosky, 23 Pa. St. 526, 
 § 558. 
 Penny v. Crane Bros. M. Co. 80 111. 
 244, § 394. 
 V. Watts, 1 Macn. & G. 150, 
 §S 30, 56. 
 Penobscot R. Co. v. Weeks, 52 Me, 
 
 456, § 1138. 
 People V. Bacon, 18 Mich. 247, 
 § 1143. 
 V. Bernard, 43 Cal. 385, § 1351. 
 V. Buchanan, 1 Idaho (N. S.), 
 
 681, § 1409. 
 V. Burton, 65 N. Y. 452, g 1358. 
 V. Callahan, 60 How. Pr. 372 : 
 
 23 Hun, 581, i^ 1410. 
 
 V. Centre, 6 W. Coast Rep. 150 ; 
 
 61 Cal. 191, ^§ 1202, 1209, 
 
 1216. 
 
 V. Chee Kee, 61 Cal. 404, § 1415. 
 
 V. De La Guerra, 24 Cal. 73, 
 
 § 1414. 
 V. Fennell (Utah), 6 West Coast 
 
 Rep. 837, ^1210. 
 V. Grio-sby, 62 Cal. 482, § 1220. 
 V. Herman. 45 Cal. 689, § 1145. 
 V. Highway Com'rs, 14 Mich. 
 
 528, § 1119. 
 V. Holbrook,- 13 Johns. 90, 
 
 , g 1202. 
 V. Huber, 20 Cal. 81, § 1031. 
 V. Join-, 22 Mich. 461, § 1413. 
 V. Lyman, 2 Utah, 30, § 1412. 
 V. Mahaney, 13 Mich. 481, 
 
 S 1404. 
 V. Robinson, 17 Cal. 363, § 1411. 
 V. Tallman, 36 Bai-b. 222, 
 
 § 1139. 
 V. Whyler, 41 Cnl. 351, § 1123. 
 People's Bank v. Keech, 26 Md. 
 
 521, §§ 751, 759, 
 Pepper v. George, 51 Ala. 190, § 689. 
 Pepper's Appeal, 77 Pa. St. 373, 
 
 §117. 
 Perkins v. Barstow, 9 R, I. 507, 
 §87. 
 V. Bradley, 1 Hare, 219, § 689. 
 v.- Jordon, 35 Me. 23, § 480?i. 
 V. Swank, 43 Miss. 349, § 273. 
 
 Perkins v. Wash. Ins. Co. 4 Cow, 
 
 645, § 653. 
 Perrin v. Reed, 35 Vt. 2, § 192. 
 PeiTine v. Miller, 4 Thomp. & C, 
 
 36, § 1314. 
 Peny v. Fitzhowe, 8 Q, B, 757, 
 § 480/i. 
 V. Green. 19 N. J. L, 61, § 943. 
 V. HoU, 2 De G. F. & J. 38, 
 
 g§ 10, 34, 56, 674. 
 
 V. John, 79 Pa. St. 411, § iSOg. 
 
 V. Siter, 37 Mo. 273. § 1221. 
 
 V. Thompson, 98 Mo. 249, § 553, 
 
 Peru V. French, 55 111. 317, § 480g. 
 
 Peterhoff, The, Blatch. Prize Cas. 
 
 463, §g 1410, 1417. 
 Peters v. Goodrich, 3 Conn. 146, 
 §§ 10, 208. 
 r. Hobbs, 25 Ark. 67, §§ 928, 
 
 985. 
 V. Newku-k, 6 Cow. 103, §1138, 
 V. St. Louis, etc. R. Co, 59 Mo. 
 406, § 1161, 
 Peterson, Ex parte, 33 Ala. 74, 
 
 g 1412. 
 Peto V. Hammond, 30 Beav, 495, 
 
 §46. 
 Peti-ee v. Bell. 2 Bush, 58, § 357. 
 Petrie v. NuttaU, 11 Exch. 569, 
 
 § 480/. 
 Pettibone v. Griswold, 4 Conn. 158, 
 
 §g 47, 149, 179. 
 Peychard v. Citizens' Bank, 21 La. 
 
 An. 262, g 97. 
 Phelan v. Moss, 67 Pa. St. 59, § 80. 
 Phelps V. Hunt. 40 Conn. 97, g 1234. 
 Philadelpliia, etc. R. Co. v. Lehman, 
 
 56 Md. 209, § 1415. 
 Philipe V. Harberlee, 45 Ala. 597, 
 
 § 913. 
 Philips V. Reitz, 16 Kan. 396, § 10. 
 Pliillips V. Alderson, 5 Humph, 403, 
 § 862, 
 V. Bank of Lewiston, 18 Pa. 
 
 St. 394, §§ 25, 117. 
 V. Bowen, 2 Pa. St. 20, § 1230. 
 V. Costley, 40 Ala. 486, g§ 65a, 
 273. 
 Philliskirk v. Pluckwell, 2 M, & S, 
 
 393, § 728. 
 Pliipson V. KJieUer, 1 Stark. 116, 
 
 §939. 
 Phoenix Ins, Co. v. Church, 59 
 
 How. Pi-. 293, § 1405. 
 Pickard v. Perley, 45 N. H, 188, 
 g§ 616, 619. 
 V. Polhiraus. 3 Mich, 185, § 1247. 
 Pickering v. Busk, 15 East, 38, 
 §§ 70, 652, 653,
 
 Ixiv 
 
 TABLE OF CASES CITED. 
 
 Pickering v. nfracome R'y, L. R. 
 
 3 C. P. 23"). i^ 434. 
 Pier V. Carr, 6'J P;i. St. 326, ^ G44. 
 V. Ileinrichoffen, 52 Mo. 333, 
 § 1397. 
 Pierce v. Indscth, lOG U. S. 546, 
 § 1413. 
 V. Pendar, 5 Mete. 852, §§ 844, 
 
 846. 854. 
 V. Ricliardson, 87 N. H. 306, 
 
 45 not). 
 
 V. Tavlor, 23 Me. 246, § 207. 
 V. AViiitney. 29 Uc. 188. 5< 480». 
 Pigott V. Snt'll, 59 111. 106, j^g 1349, 
 
 1372. 
 Pike V. Arinstead, 1 Dev. Eq. 110. 
 ^ 253. 
 V. Galvin, 29 Me. 183, §§ 214, 
 
 216. 
 V. GoodnoVv, 12 Conn. 472, 
 *? 310. 
 Pilcher r. Rawlins. L. R. 11 Eq. 53 ; 
 
 7 Ch. 259, i; 807. 
 Pillow r. Hardeman, 3 Humph. 
 
 (Tenn.)538, §926. 
 Pilmer v. Branch of State Bank, 
 
 16 la. 312, t? 1227. 
 Pindall v. Trevor, 30 Ai'k. 249, 
 
 § 377. 
 Pindell v. MaydwcU, 7 B. Mon. 314, 
 
 §348. 
 Pinkerton ■?'. Manchester, etc. R. 
 
 Co. 43 N. H. 424, § 440. 
 Pitcher v. Barrows, 17 Pick. 361, 
 g§ 119, 515. 
 V. Livingston. 4 Johns. 1, §480e. 
 V. Rawlins, L. R. 11 Eq. 53, 
 g 65a. 
 Pitkin V. Leavitt, 13 Vt. 379, 
 
 §§ 480c, 480;;i. 
 Pitman v. Gaty, 10 111. 186, § 284. 
 
 V. Sofley, 04 III. 155, g 29. 
 Pitney v. Leonard, 1 Paige, 461, § 8. 
 Pitre V. Offut. 21 La. An. 679, 
 
 ^ 480». 
 Pitts V. Mower, 18 Mc. 361, § 434. 
 Pittsburgh, etc. R. Co. v. Elliott, 38 
 
 Ind. 153, g 1219. 
 Piatt V. Robhison, 10 Wis. 128, 
 
 § 1196. 
 Pleasant v. Benson, 14 East, 234, 
 
 !^624. 
 Ploughboy, The, 1 GaU. 41, § 67. 
 Plumb V. Fluitt, 2 Anstr. 432, §§ 8, 
 
 37. 
 Plumer v. Robertson, 6 S. & R. 179, 
 
 §297. 
 Polk V. Spinks, 5 Coldw. 431, 
 § 983. 
 
 Pollard V. Somerset Mut. Fire Ins. 
 Co. 42 Me. 221, § 432. 
 V. Wegener, 13 Wis. 569, 
 §§ 1160, 1345, 1371, 1372. 
 Pomeroy v. Betts, 31 Mo. 419, 
 §.§ 1031. 1054, 1059, 1060, 
 1084, 1136. 
 V. N. Y. & N. H. R. Co. 4 
 Blatch. 120, § 1306. 
 Pomroy i\ Stevens, 11 Met. 244, 
 
 §§ 14, 96, 244, 274. 
 Ponder v. Scott, 44 Ala. 241, § 84. 
 Pons V. Kellev, 2 Havw. 45, § 991. 
 Pope V. Garland, 4 Y. & C. Ex. 
 394, ij§ 65a, 321. 
 V. Headen, 5 Ala. 433, § 1108. 
 Porter v. Bank of Rutland, 19 Vt. 
 410, §§ 673a, 6836, 689. 
 V. Chicago & R. I. R. Co. 20 
 
 111. 407. § 566. 
 V. Cole, 4 Me. 20, §§ 246, 251. 
 V. Kimball, 53 Barb. 467, § 935. 
 V. Pillsbury, 36 Me. 278, § 1235. 
 V. Rayworth. 13 East, 417, 
 
 §975. 
 V. Sevy, 43 Me. 519, § 245. 
 Porthouse v. Parker, 1 Camp. 82, 
 
 §751. 
 Portis V. Hill, 3 Tex. 278, § 280. 
 Portwood V. Wilburn, 33 Tex. 713, 
 
 § 1152. 
 Potier V. Barclay, 15 Ala. 439, 
 
 § 1257. 
 Potter V. Sanders, 6 Hare. 1, §§ 55, 
 
 383. 
 Potts V. Bell. 8 T. R. 548, § 980. 
 Powell V. Dillon, 2 Ba. & B. 416, 
 §§281, 282, 303. 
 V. Myers, 26 Wend. 591, § 552. 
 V. Peun. R. Co. 32 Pa. St. 414, 
 
 §558. 
 V. Waters, 17 Johns. 176, §§ 94a, 
 946. 
 Power V. Kane, 5 Wis. 265, § 480n. 
 Powers V. McFerran, 3 S. & R. 44, 
 
 §217. 
 Powles V. Page, 3 M. G. & S. 16, 
 
 § 683a. 
 Prather v. Pritchard, 26 Ind. 65, 
 
 § 1246. 
 
 Pratt V. Hoag, 5 Duer, 631, § 341. 
 
 V. Page, 32 Vt. 13, §§ 489, 519. 
 
 V. Richards, 69 Pa. St. 53, § 643. 
 
 V. Tinkom, 21 Mimi. 142. 
 
 §§ 1103, 1133. 
 
 Prell V. McDonald, 7 Kan. 426, 
 
 § 1404. 
 Prentiss v. Danielson, 5 Conn. 175, 
 §§ 943, 963.
 
 TABLE OF CASES CITED. 
 
 Ixv 
 
 Prentiss v. Garland, 64 Me. 155, 
 
 §§ 420, 423. 
 V. Sinclaii-, 5 Vt. 149, §§ 485, 
 515. 
 Prescott V. Heard, 10 Mass. 60, 
 ^278. 
 V. Hull. 17 Johns. 284, § 434. 
 ■y..Nevens, 4 Mason, 330, § 280. 
 President, etc. of Conners^dlle v. 
 Woodleigh, 7 Blackf. 102, § 1254. 
 Presley v. Anderson, 42 Miss. 274, 
 
 § 1375. 
 Preston v. Tubbin, 1 Vern. 286, 
 
 §344. 
 Price V. Jones, 3 Head, 84. § 72. 
 V. McDonald, 1 Md. 403, §§ 17, 
 
 36, 357. 
 V. Methodist Epis. Ch. 4 Ohio, 
 
 515, t< 225. 
 V. Page, 24 Mo. 65, § 1410. 
 V. Powell, 3 N. y. 332, §§ 571, 
 
 573. 
 V. Young, 1 McCord, 389, § 991. 
 Prickett v. Ritter, 16 111. 96, g 611. 
 Prideaux v. Collier, 2 Stark. 57, 
 ■ § 1014. 
 
 Priest V. Rice, 1 Pick. 104, § 235. 
 Priezer i\ Exchange, etc. Ins. Co. 
 
 6 Wis. 89, § 1404. 
 Prindle v. Anderson, 19 Wend. 391, 
 
 §§ 585, 648. 
 
 Pringle v. Dunn, 37 Wis. 449, §g 11, 
 
 12, 124, 137, 149, 307, 674, 
 
 679, 680. 
 
 V. Phillips, 5 Sandf . 157, § 87. 
 
 Pritchett v. Sessions, 10 Rich. L. 
 
 293, §§ 687, 689. 
 Proctor V. Cooper, 3 Drew, 1 ; 1 
 
 Jur. (N. S.) 149, §§ 240, 375. 
 Pruitt V. Railroad, 63 Mo. 537, 
 
 § 557. 
 Pugh V. State, 2 Head, 327, § 1414. 
 Pugsley V. Aiken, 11 N. Y. 494, 
 
 § 583. 
 Pullman Pal. C. Co. v. Baker, 4 
 
 Colo. 344, g 480a. 
 Purchase v. Mattison, 6 Duer, 587, 
 
 §g 94&, 1009. 
 Pursell V. Long, 7 Jones L. (N. C.) 
 
 102 S 1225. 
 Pursley ^r Hays, 23 la. 11, §§ 1160, 
 
 1341. 
 Pyer v. Carter, 1 H. & N. 916, 
 § 65a. 
 
 Q. 
 
 Queen, The, v. El worthy, 1 Ci". 
 Cas. 103, § 1361. 
 
 Quiggin V. Duff, 1 M. & W. 174, 
 
 § 574. 
 Quinn v. Hard, 43 Vt. 375, § 94b. 
 Quirk V. Thomas, 6 JMich. 76, § 307. 
 
 R. 
 
 Racldeff v. Norton, 19 Me. 874, § 96. 
 Raffcrty v. Mallory, 8 Biss. 363, 
 
 §i^ 307, 323. 
 Raggsdalev. Hogg, 9 Gratt. 409, 
 
 § 431. 
 Ragland v. Wynn, 37 Ala. 33, 
 
 §1413. 
 Railroad Co. v. Brown, 17 Wall. 
 445. § 1383. 
 V. Harris, 13 Wall. 65, § 1307. 
 V. Mauuf» Co. 16 Wall. 318, 
 § 533. 
 Railroad Tax Case, 8 Saw. 338, 
 
 § 1139. 
 Railway Co. v. Whitton, 13 Wall, 
 
 384, § 1307. 
 Ralls V. Graham. 4 Mon. 120, § 219. 
 Ralston v. BuUitts, 3 Bibb, 361, 
 
 § 1017. 
 Ramdulollday x\ Darieux, 4 Wash. 
 
 C. C. 61, § 1017. 
 Ramsey v. Strobach, 53 Ala. 513, 
 
 § 6oi. 
 Rancliffe v. Parkyns, 6 Dow. 149, 
 
 §§ 8, 13. 
 Rand v. Dodge, 17 N. H. 343, § 1231. 
 
 V. State, 77 N. C. 175, § 94a. 
 Randall v. Falkner, 41 Cal. 343, 
 §1161. 
 V. Silverthorne, 4 Pa. St. 173, 
 
 §§ 10, 16, 300. 
 V. Smith, 34 Barb. 453, § 916. 
 Randolph v. N. J. West L. R. Co. 
 
 38 N. J. Eq. 49, § 97. 
 Rankin v. Childs, 9 Mo. 673, §§ 395, 
 399. 
 V. Dulanev, 43 Miss. 197, 
 §§ 1374", 1375. 
 Ransom v. Loyless, 49 Ga. 471, § 499. 
 Ransome v. Mack, 3 Hill, 587, 
 
 §§ 810. 841, 850. 904, 931. 
 Rape V. Heaton, 9 Wis. 388, §§ 1371, 
 
 1373, 1405. 
 Rapelye v. Bailey, 3 Conn. 438, 
 §§ 389, 401. 
 V. Prince, 4 Hill, 119, § 480/. 
 Raritan Water Power Co. v. 
 Veghte, 31 N. J. Eq. 463, §§ 10, 
 16, 30. 
 Ratcliff e v. Barnard, L. R. 6 Ch. 653, 
 §§ 56, 65a.
 
 IX vl 
 
 TABLE OF CASES CITED. 
 
 Rathbiirn v. Acker, 18 Barb. 393, 
 
 § 1334. 
 Rawson v. Holland, 47 How. Pr. 
 
 293, § 573. 
 Rav V. Birclseve, 5 Den, 626, § 273. 
 Ray r. Bush, 1 Root, 81, § 113. 
 r. Roe. 2 Blackf. 258, gg 347, 
 
 351. 
 r. Smith, 17 Wall. 411, §§ 946, 
 948. 
 Raymond v. Squire, 11 Johns. 47, 
 
 §432. 
 Reab y. Moor, 19 Johns. 337, g 1285. 
 Read v. French, 28 N. Y. 285, 
 § 1338. 
 V. St. Louis R. Co. 60 Mo. 199, 
 § 558. 
 Reading v. Ford, 1 Bibb, 338, § 1161. 
 Real Estate Sav. Inst. v. Collonius, 
 
 63 Mo. 290, §§ 339, 342a, 344. 
 Reasoner v. Edmonson, 5 Ind. 393, 
 
 §101. 
 Rector v. St. Louis C. Ct. 1 Mo. 607, 
 
 § 1211. 
 Redmon v. Steamboat Co. 46 N. Y. 
 
 583, >^ 564. 
 Redpath v. Roberts, 3 Esp. 225, 
 
 §644. ■ 
 Reed v. Allison. 61 Cal. 461, ?; 1218. 
 V. Coale, 4 Ind. 283, t^ 119. 
 V. Gannon, 50 N. Y. 345, J^g 16, 
 
 65a, 299. 
 V. Hawlev. 45 111. 40, g 036. 
 V. Kemp,' 16 111. 445, ?:?; 127, 128. 
 V. Marblev, 10 Paige, 409, g 431. 
 V. Northfield, 13 Pick. ' 94, 
 
 § 480gr. 
 V. Ownby, 44 Mo. 204. § 96. 
 V. Trentman, 53 Ind. 438, §946. 
 V. Tyler, 56 lU. 288, § 1376. 
 V. Wilson, 41 N. J. L. 29, 
 § 1404. 
 Reeder v. Barr, 4 Ohio, 446, § 311. 
 V. Holcomb, 105 Mass. 93, 
 
 § 1358; 
 
 Reed's Appeal, 34 Pa. St. 207, §672. 
 Reese v. Beck, 24 Ala. 651, § 1248. 
 Reeves v. Avers, 38 Ul. 418, § 273. 
 V. Kimball, 40 N. Y. 299, § 431. 
 Reg. V. St. Maurice, 16 Q. B. 908, 
 § 1410. 
 V. Whittles, 13 Q. B. 248, 
 § 1410. 
 Reggio V. Braggiotti, 7 Cush. 166, 
 
 § 2S01. 
 Regina v. Hankins, 2 Carr. & Kir. 
 
 822, § 1286. 
 Reichert v. McClure, 33 HI. 516, 
 §234. 
 
 Reid V. Payne, 16 Johns. 218, 
 
 §§ 883, 922. 
 Reigait i\ White, 52 Pa. St. 438, 
 
 §421. 
 Reilley v. Smith, 16 La. An. 31, 
 
 § 506. 
 Relfe V. Valentine, 45 Ala. 286, 
 
 § 1154. 
 Remor v. Downer, 23 Wend, 620, 
 
 g§ 842, 883. 
 Reufro v. Harrison, 10 Mo. 411, 
 
 § 143a. 
 Renner v. Bank of Columbia, 9 
 
 Wheat. 582, § 480o. 
 Reno V. Hogan. 12 B. Mon. 63, § 558. 
 Rensliaw v. Triplett, 23 Mo. 213, 
 
 §§ 707, 717. 
 Requa v. City of Rochester, 45 N. 
 Y. 129; 6 Am, Rep. 52, 
 § 480flr. 
 V. CoUins, 51 N. Y. 144, § 922. 
 Rex V. Haworth, 4 Cai-r. & P, 254, 
 § 1261. 
 V. Holland, 5 T. R. 607, § 1387. 
 V. Huggins, Ld. Ravm. 1583, 
 § 480;. 
 Rey V. Simpson, 22 How. 241, § 87. 
 Revnolds i: Appleman, 41 Md. 615, 
 § 84U. 
 V. B. & M. R. 43 N. H. 580, 
 
 §g 466, 480. 
 V. Harris, 14 Cal. 667, § 1096. 
 V. Kenyon, 43 Barb. 585, § 6836. 
 V. Kingsbury, 15 la. 238, g§ 112, 
 
 125. 
 r. Raih-oad, 43 N. H. 580, § 457. 
 V. Ruckman, 35 Mich. 80, §§ 10, 
 
 26, 29. 64. 
 V. WUson, 15 111. 394, § 1088, 
 Rhett V. Poe, 2 How. 457, § 732. 
 Rhoades v. Delaney, 50 Ind. 468, 
 § 1358. 
 V. Selin, 4 Wash. C. Ct, 715, 
 § 1278, 
 Rhode V. Proctor, 4 B. & C. 517, 
 
 §§ 771, 991. 
 Rhodes v. Cooke, 4 L. J. Ch. 147, 
 §29. 
 V. L. & N. R. Co. 9 Bush, 688, 
 §558. 
 Rhopho, etc. Township v. Moore, 
 
 68 Pa. St. 404, § 480sr. 
 Rice i\ Bost. & Worcester R. Corp. 
 98 Mass. 212, § 567. 
 V. K. P. R'y, 63 Mo. 314, § 4806. 
 V. Montgomery, 4 Biss. 75, 
 
 § 1410. 
 V. Rice, 2 Drew, 73, §§ 50, 297, 
 299.
 
 TABLE OF CASES CITED, 
 
 Ixvii 
 
 Rich V. Roberts, 48 Me. 548, § 194. 
 
 V. Staibuck, 45Ind. 310. g 1220. 
 
 Richards v. Daily, 34 la. 427, 
 
 S 431. 
 
 V. Griggs, 16 Mo. 416, g§ 434, 
 
 440. 
 V. Hicks, 1 Overton. 207. g 1405. 
 V. M. S. & N. etc. R. Co. 20 lU. 
 404, g noG. 
 Richardson v. B. it :\r.. R. Co. 8 la. 
 260, S 1235. 
 V. Goddard. 23 Uow. 44, j; 480n.. 
 V. White. 18 Cal. 102, t, 374. 
 V. Wicker. 74 N. C. 278. § 228. 
 Richmond, The. 1 Biss. 49. ij 575. 
 Rider v. Johnson, 20 Pa. 8t. 190, 
 
 § 431. 
 Riddle v. Coburn, 8 Gray, 241. g 72. 
 V. Mandeville, 5 Cranch, 322, 
 § 706. 
 Ridgewav v. HoUidav, 59 Mo. 444, 
 
 §§307. '316. 
 Ridgley v. Stillwell. 25 Mo. 570. 
 
 § 613. 
 Riggs V. Boylan, 4 Biss. 445, § 153. 
 Right V. Beard, 13 East, 210, g 593. 
 V. Cuthell, 5 East, 491. §g 616, 
 
 698, 700. 
 V. Darby, 1 T. R. 159, § 607. 
 Righter v. Forrester. 1 Bush, 278, 
 
 §§ 232, 266. 
 Rigs V. Cage, 2 Humph. (Tenn.) 
 
 350, §671. 
 Rigsbee v. Bowler, 17 Ind. 167, 
 
 §1159. 
 Riley v. Home, 5 Biug. 217. §§ 542, 
 558. 
 V. Nichols, 1 Heisk. (Tenn.) 16, 
 §§ 1036, 1037. 
 Ring V. Steele, 3 Keyes, 450, §§ 203, 
 
 231a. 
 Ringgold V. Bryan, 3 Md. Ch. D. 
 488, §§ 60, 273. 
 V. Waggoner, 14 Ai-k. 69, §§ 10, 
 25. 
 Ringold V. Patterson, 15 Ark. 209, 
 
 § 1091. 
 Ripple V. Ripple, 1 Rawle, 386, § 28. 
 Rising V. Stannard, 17 Mass. 282, 
 
 §608. 
 Rislev, Succession of, 11 Rob. (La.) 
 
 298. § 432. 
 Ritter v. OlTutt, 40 Md. 207, § 1157. 
 Rivers v. Walker, 1 Dall. 85, 
 
 § 1321. 
 Roach r. Barnes, 33 Mo. 319, § 1141. 
 
 V. Karr, 18 Kan. 529, § 674. 
 Robards v. Marley, 80 Ind. 185, 
 § 1405. 
 e 
 
 Robb V. Mudge, 14 Gray, 534, 
 §499. 
 V. Starkey, 2 Carr. & Kir. 143, 
 § 1270. 
 Roberts r. Anderson, 3 Johns. Cli. 
 371, §8. 
 V. Bourne, 23 Me. 165, §§ 205, 
 
 206. 
 V. Croft, 2 De G. & J. 1, § 56. 
 V. Eden, 1 Bos. & P. 398, § 94a. 
 V. Moslev, 64 Mo. 507, §§ 16, 
 
 25, 673a. 
 V. Riley, 15 La. An. 103, § 553. 
 V. Stanton, 2 Munf. 129, t^ 27. 
 r. Taft, 120 Mass. 169, §§ 887, 
 902. 
 Robertson v. Williamson, 5 Munf. 
 
 331, § 946. 
 Robins v. Gibson, 3 Camp. 334, 
 
 § 1005. 
 Robinson, Estate of, Mich. 137, 
 
 § 1363. 
 Robinson r. Bartlett, 11 Minn. 410, 
 §87. 
 V. Chittenden, 14 N. Y. Sup. 
 
 Ct. 133, § 563. 
 V. Int. Life As. Soc. 42 N. Y. 
 
 54, § 748. 
 V. Williams, 22 N. Y. 380, § 180. 
 V. Willoughby, 7 N. C. 358, 
 § 231a. 
 Robison v. Goswold, 6 Mod. 171, 
 
 §671. 
 Robson V. Bennett, 2 Taunt. 388, 
 §817. 
 r. Flight, 4 De G. J. & S. 608, 
 §307. 
 Rochfort r. Robertson, 12 East, 427, 
 
 § 1181. 
 Rockendorff v. Taylor's Lessee, 4 
 
 Pet. 349. §§ 1102,'lll6. 
 Rockwell r. Bradley, 2 Conn. 1, 
 
 § 600. 
 Roddy V. WiUiams, 3 Jones & L. 1, 
 
 §§ 15, 313. 
 Rodgers v. Kayanaugh, 24 III. 583, 
 
 §176. 
 Rodick V. GandeU, 1 De G. M. & 
 
 G. 763, § 430. 
 Roe r. Pierce, 2 Camp. 96, §§ 622, 
 
 698, 699, 700. 
 Rogers, Ex parte, 8 De G. M. & G. 
 
 27, § 437. 
 Rogers ?•. Biurchard, 34 Tex. 441, 
 §§ 205, 207. 
 V. Custance, 2 Mood. & R. 179, 
 
 § 1282. 
 V. Hackett, 21 N. H. 100, § 967, 
 V. Hoskins, 14 Ga. 166, § 7.
 
 iXVlll 
 
 TABLE OF CASES CITED. 
 
 Rogers v. Hussey, 36 la. G64, § 277. 
 V. Jones, 8 N. H. 204, *;§ 15, 35, 
 
 273, 279, 268, 29-4, 313. 
 V. McElIione, 12 Abb. Pr. 392, 
 
 ti 1201. 
 V. Mutton, 7 Hurl. & N. 733, 
 
 5^ 1393. 
 V. State, 50 Ala. 102, §§ 1414, 
 
 1415. 
 V. Stephens, 2 T. R. 713, § 1001. 
 r. West, 9 Inrl. 400, ^ 532. 
 V. Wiley, 14 111. G5, {^ 35. 
 Rogerson v. Hare, W. W. & D. 65, 
 
 tj 718. 
 Rollantl V. Hart, L. R. 6 Ch. 678, 
 
 ^j^ 56, 672, 689, 690. 
 Rome R. R. v. SulUvan, 14 Ga. 277. 
 
 ^5^ 571, 574. 
 Rood V. Chapin, Walk. Ch. 79, § 96. 
 Rorke, In re, 13 Ir. Ch. R. 273 ; 14 
 
 Ir. Ch. 442. g 690. 
 Rose V. Lewis, 10 Mich. 483, § 1263. 
 
 V. Railroad, 39 la. 246, § 558. 
 Rosher r. Kieran, 3 Camp. 87, 
 
 § 710. 
 Ross V. Anstell, 2 Cal. 183. g 1411. 
 ?-. Bedell, 5 Duer, 462. § 997. 
 r. Boswell, 60 Ind. 235, J< 1415. 
 r. Bruce, 1 Day, 100, i^ 1263. 
 V. Worthington, 11 Minn. 438. 
 Rosseau v. Gayarre, 24 La. An. 355, 
 
 § 1346. 
 Rossiter v. Rossiter, 8 Wend. 494, 
 
 §657. 
 Rothschilds v. M. C. R. Co. 69 111. 
 
 164. § 566. 
 Rotschild V. Grix, 31 Mich. 150. 
 
 § 87. 
 Rounds V. McChesney, 7 Cow. 360, 
 
 §97. 
 Routh V. Robertson, 11 Sm. & M. 
 382, § 840. 
 V. Spencer, 38 Ind. 393, § 97. 
 Rowan v. Adams. 1 Sm. & M. Ch. 
 45, § 27. 
 r. Lytle, 11 Wend. 616. § 596. 
 ■ Rowe V. Tipper. 20 Eng. L. & Eq. 
 220, §§ 795, 797. 
 Rowell V. Klein, 44 Ind. 290, ^ 1378. 
 Rowley v. Bigelow, 12 Pick. 307, 
 §463. 
 V. Horne, 3 Bing. 2. § 546. 
 V. Howard, 23 Cal. 401, § 1362. 
 Rowls V. Desliler, 4 Abb. App. Dec. 
 
 12, § 472. 
 Rucker v. Donovan, 13 Kan. 251, 
 
 r. Hillei-rie East, 43, § 1004. 
 Rudy V. Wolf, 16 S. & R. 79, § 421. 
 
 Rugely IK Davidson, 2 Mills' Const. 
 
 R. 33, § 7:59. 
 Runkle v. Hagan, 3 Mo. 234, § 1211. 
 Runquist v. DitcheU, 3 Esp. 64, 
 
 § 654. 
 Runvan v. McClellan, 24 Ind. 165, 
 
 § 240. 
 Runyon v. Montfort, Busb. (N. C.) 
 
 371, § 906. 
 Rupert" V. JIark, 15 111. 540, §§ 7, 
 
 217, 294, 307. 
 Rushim v. Shields, 11 Ga. 636, § 225. 
 Rushton V. Aspinwall, 1 Doug. 653, 
 
 § 1401. 
 Russell V. Buck. 11 Vt. 166, § 394. 
 V. Clark, 7 Cranch, 09, §§ 386, 
 
 389. 
 V. Dver, 40 N. H. 173, § 1097. 
 V. Hoyt, 4 Mont. 412, § 1410. 
 V. Longstafife, 1 Doug. 495, 
 
 ^ 991. 
 V. Martin, 15 Tex. 238, § 1410. 
 V. Perkins, 1 Mason, 368, §§ 389, 
 
 401. 
 I'. Petree. 10 B. Mon. 184, §§ 17, 
 
 3G. 
 V. Sargent, 7 Bl. App. 98, 
 
 i^ 1412. 
 V. Sweezey, 22 Mich. 235, g§ 65a, 
 672. 674. 
 Russell M't'g Co. v. Steamboat Co. 
 
 50 N. Y. 121, §§ 564, 577a. 
 Russell's Appeal, 15 Pa. St. 319. 
 
 § 113. 
 Rutherford v. Geddes, 4 Wall. 220, 
 
 § 1249. 
 Rutland Bank r. Buck, 5 Wend. 66, 
 
 § 946. 
 Rutledge r. Sup. Ct. (Cal.) 6 W. 
 
 Coast Rep. 565, § 1211. 
 Rutter V. Barr, 4 Ohio, 446, § 15. 
 Ryall V. Rowles, 1 Ves. Sen. 348, 
 
 § 433. 
 Ryan v. Driscoll, 83 111. 415, § 1161. 
 Rvland v. Brown, 2 Head, 270, 
 § 92a. 
 
 s. 
 
 Saco National Bank v. Sanborn, 63 
 
 Me. 340, § 923. 
 Sackett V. Kellar, 22 Ohio St. 554, 
 
 § 94«. 
 Saffron, etc. Soc. v. Rayner, L. R. 
 
 14 Ch. D. 406, §§ 433, 672. 
 Sagerr. P. S. etc. R. Co. 31 Me. 
 
 228. § 558. 
 Sailor v. Hertzog, 4 Wliart. 259, 
 
 §278.
 
 TABLE OF CASES CITED. 
 
 Ixix 
 
 Salisbury v. Morse, 7 Lans, 359, 
 
 V. Renick, 44 Mo. 554, § 956. 
 V. Sands, 2 DiU. 270, g 1352. 
 Sallee v. Hays, 3 Mo. IIG, § 1084. 
 Saltus V. Everett, 20 AVend. 267, 
 
 §67. 
 Sample v. Martin-. 16 Ind. 226, 
 
 gj; 420, 422. 
 Sanij-ison v. Ohleyer, 22 Cal. 200, 
 
 § 371. 
 Samuels r. Slielton, 48 Mo. 444, 
 
 § 348. 
 Sanborn v. Little, 3 N. H. 539, 
 I^S 79, 431. 
 V. Robinson. 54 N. H. 239, 
 § 310. 
 Sandford v. Handy, 23 Wend. 260, 
 
 § 653. 
 Sandilands v. Marsh, 2 B. & Aid. 
 
 673, § 527. 
 Sanford v. Harvey, 11 Cush. 93, 
 
 § 633. 
 Sanger i\ Craigue, 10 Vt. 555, 
 
 ^§ 159, 174. 
 Sarahass v. Armstrong, 16 Kan. 
 
 192, § 1408. 
 Sargent v. Bean, 7 Gray. 125, 
 
 § 1110. 
 Sargeant v. Ingersoll, 7 Pa. St. 340, 
 g 279. 
 V. State Banlv of Indiana, 12 
 How. 371, § 1085. 
 Saunders v. Deliew, 2 Vern. 271, 
 §^ 48, 58. 
 V. Smith, 3 Ga. 121, § 1190. 
 Savings, etc. Soc. v. Thompson, 32 
 
 Cal. 347. ^ 1071. 
 Sawyer v. Adams, 8 Vt. 172, § 160. 
 V. Brownell, 13 R. I. 141, ^ 738. 
 V. Joslin, 20 Vt. 172, g 464. 
 V. North Am. Life Iiis. Co. 46 
 Vt. 697, g 1304. 
 Sawyer's v. Pawner's Banlv, 6 
 
 Allen, 207, § 683rt. 
 Sayer v. Frick, 7 W. & S. 383, 
 
 §757. 
 Sayles r. Davis, 20 AVis. 303, 
 
 § 1372. 
 Scales V. Alxis, 12 Ala. 617, § 1111. 
 
 V. Wilsey, 11 la. 261, § 97. 
 Scarboroitgh v. HoitIs, 1 I3av, 177, 
 
 § 1017. 
 Scarlett v. Gorliam. 2S 111. 319, 
 
 §§ 360. 308. 
 Schell V. Leland, 45 Mo. 289, § 1032. 
 V. Stein, 76 Pa. St. 398,' § 164. 
 Schepp V. Cai-penter, 51 N. Y. 602, 
 §94&. 
 
 Schimmelpenich v. Bayard, 1 Pet. 
 
 264, ^g 660. 661. 
 Schlater v. Winpenny, 75 Pa. St. 
 
 321, § 523. 
 Schley v. Merrit, 37 Md. 352, § 87. 
 Schnell v. Chicago, 38 111. 382, 
 
 § 1075. 
 Schollenberger, Ex parte, 6 Rep. 5, 
 
 § 1307. 
 Schonberg v. Cherry, 6 Thomp. & 
 C. (N. Y.) 200; S. C. 3 Hun, 677, 
 § 382. 
 School District v. Taylor, 19 Kan. 
 287, §§ 65a, 96, 273, 278. 
 V. Railroad, 102 Mass. 553, 
 § 558. 
 Schuchardt v. Hall, 36 Md. 590, 
 
 § 1004. 
 Schultz V. Jloore, 1 McLean, 520, 
 
 § 124. 
 Schutt V. Large, 6 Barb. 373, §§ 63, 
 
 96, 11.3, 203. 
 Schuvler v. Leggett, 3 Cow. 660, 
 § 586. 
 r. Smith, 51 N. Y. 309, § 603. 
 Schwabackev v. Reill}^ 3 Dill. 137, 
 
 § 1295. 
 Scofield V. Eichelberger, 7 Pet. 586, 
 
 § 981. 
 Scorpion S. M. Co. v. Marsano, 10 
 
 Nev. 370, gg 1030, 1309, 1355. 
 Scott V. Bullion M. Co. 3 Nev. 81, 
 § 1249. 
 V. Cohnan, 5 Monr. 73, § 377. 
 V. Colmesnil, 7 J. J. Marsh. 416, 
 
 § 493. 
 V. Dunbar, 1 MoU. 443, § 50. 
 V. Edwards, 19 Mo. 674, § 1414. 
 V. Gallagher, 14 S. & R. 333, 
 
 §.^ 294, 299, 300. 
 V. Greer, 10 Pa. St. 103, § 943. 
 V. Jackson, 13 La. An. 640, 
 
 § 1413. 
 V. Jackson, 35 La. An. 769, 
 
 § 1414. 
 V. Jones, 4 Taunt. 865, § 1263. 
 V. Lifford, 9 East, 347, g§ 716, 
 
 735. 
 V. Lord Hastings, 4 K. & J. 
 
 633, § 434. 
 V. Scott. 17 Md. 78, §§ 1251, 
 
 1414. 
 V. Whitney, 41 Wis. 504, 
 § 480?i. 
 Scroggins v. Dugal, 8 Ala. 383, 
 
 § 65rt. 
 Scuddar v. Van Amburgh, 4 Edw. 
 
 Ch. 29, § 371. 
 Scull V. Mason, 43 Pa. St. 99, § 936.
 
 Ixx 
 
 TABLE OF CASES CITED. 
 
 Scully V. ^.lun-av. 34 Mo. 420, §013. 
 Seabrook v. Brady, 47 Ga. 650, 
 
 §J5 339, 34-3a. 
 Seaburv v. Hungerford, 2 Hill, 80, 
 
 § 1024. 
 Seacord v. Miller, 13 N. Y. 55, 
 
 §946. 
 Sears v. Munson, 23 la. 380, §§ 65a, 
 273. 
 V. Van Dusen, 25 Mich, 351, 
 §417. 
 Seaton v. Scoville, 18 Kan. 435, 
 
 §735. 
 Seaver v. Fitzgerald, 23 Cal. 85, 
 
 § 1039. 
 Secomb v. Nutt, 14 B. Mon. 324, 
 
 §464. 
 Sedgwick v. Cleveland, 7 Paige, 
 
 287, § 341. 
 Self V. Maddox, 1 Vern. 459, § 348. 
 Selking v. Hebel, 1 Mo. App. 340, 
 
 §113. 
 Selway v. Hallo wav, 1 Ld. Raym. 
 
 46, § 532. 
 Semple v. Hagar, 27 Cal. 163, 
 
 § 1404. 
 
 Senter v. Turner, 10 la. 517, § 96. 
 
 Sergeant v. IngersoU, 7 Pa. St. 340 ; 
 
 15 Pa. St. 343, §§ 10, 18, 279, 328. 
 
 Sessions v. West. R. Corp. 16 Gray, 
 
 132, § 567. 
 Setter v. Alvey, 15 Kan. 157, § 226. 
 Sexton V. Rhames, 13 Wis. 99, 
 
 §§ 1031, 1119. 
 Seybell v. National Cur. Bank, 54 
 
 N. Y. 288, tjg 80, 89. 
 Seymour v. Newton, 105 Mass. 272, 
 
 §§ 464, 477. 
 Shackelton v. Sutcliffe, 1 De G. & 
 
 Sm. 609, § 65a. 
 Shade v. Payne, 14 La. An. 453, 
 
 §576. 
 Shannon v. Hall, 72 111. 354, §§ 152, 
 
 153. 
 Shai-p V. Arbutlinot, 13 Jur. 219, 
 §80. 
 V. Bailev, 9 B. & C. 44, § 997. 
 V. Lumley, 34 Cal. 611, t^ 374. 
 V. Maguire, 19 Cal. 577, § 348. 
 Sharpe v. Kelley, 5 Den. 431, § 598. 
 Shaw V. Neal, 19 La. 156, § 984. 
 V. Padlev, 64 Mo. 519, § 348. 
 V. Poor, 6 Pick. 86, § 129. 
 V. Railroad Co. 101 U. S. 557, 
 
 §80. 
 V. State. 3 Sneed, 86, § 1407. 
 V. Wilshire, 65 Me. 485, § 189. 
 Shawhan v. Laflfen, 24 la. 217, 
 §§ 1160, 1161. 
 
 Shaylor r. Mix, 4 Allen, 351, §S 830, 
 
 850. 
 Shedt'. Brett, 1 Pick. 401, SS781, 
 
 882. 
 Sheets v. Andrews, 2 Blackf. 274, 
 
 § 480c. 
 Shelburne Falls Bank v. Townslev, 
 
 107 Mass. 444, ^§ 843, 846. 
 Shelbui-ne Falls National Bank v. 
 
 Townslev. 102 Mass. 177, § 910. 
 Shelby v. Judd, 24 Kan. 161, § 738. 
 Sheldon v. Benham, 4 Hill, 129, 
 § 846. 
 V. Chapman, 31 N. Y. 644, 
 
 § 940. 
 V. Cox. 2 Edm. 224, §§ 15, 672. 
 V. Wriglit, 5 N. Y. 497 ; 7 Barb. 
 39, §§ 1077, 1160. 
 Shelton v. Johnson, 4 Sneed, 672, 
 § 371. 
 V. Itlerchants' D. T. Co. 59 N. 
 Y. 258, § 557. 
 Shenck v. Propeller Co. 60 Pa. St. 
 
 109, § 566. 
 Shepai-d r. Giddings, 22 Conn. 282, 
 § 1272. 
 V. Hawley, 1 Conn. 369, § 758. 
 V. Shepard, 36 Mich. 173, §§ 29, 
 185. 
 Shepardson v. Stevens, 71 111. 646, 
 
 §g 10, 65a, 279. 
 Sherfy v. Argenbright, 1 Heisk. 128, 
 
 § 146. 
 Sheridan v. Andrews, 49 N. Y. 478, 
 
 §374. 
 Shields v. Mitchell, 10 Yerg. 8, § 96. 
 Sliimmin v. Inman, 26 Me. 228, 
 
 § 1110. 
 Ship Grafton, The, Olcott's R. 43, 
 
 §563. 
 
 Shu-lev V. Fellow, 9 Port. (Ala.) 300, 
 
 § 1003. 
 
 V. Hagar, 3 Blatchf. 225, § 1159. 
 
 Shirras v. Caig, 7 Cranch, 34, § 272. 
 
 Shoemaker v. Mech. Bank, 59 Pa. 
 
 St. 79, § 870. 
 Shotwell V. Harrison, 30 Mich. 179, 
 §§11, 270. 
 V. Rowell, 30 Ga. 557, § 1185. 
 Shove r. Larsen, 22 Wis. 142, § 169. 
 Shreve v. Dulany, 1 Cranch, C. Ct. 
 
 499, § 1286. 
 Shults V. Moore, 1 McLean, 520, 
 
 § 124. 
 Shultz V. Depuy, 3 Abb. Pr. 252, 
 
 §§ 1387, 1397. 
 Shumate v. Reavis, 49 Mo. 333,§ 273. 
 Shurlds V. Tilson, 2 McLean, 458, 
 §§ 504, 506.
 
 TABLE OF CASES CITED. 
 
 Lxxi 
 
 Sibley v. LeffingweU, 8 AUen, 584, 
 §^ 14, 274. 
 V. Muskegan N. B. 41 Mich. 
 196, § 87. 
 Sidwell V. Worthington, 8 Dana, 74, 
 
 §348. 
 Sigerson v. Mathews, 20 How. 496, 
 
 §964. 
 Sigoiivney v. Munn, 7 Conn. 324, 
 
 §§ 26, 320. 
 Sllsby V. Allen, 43 Vt. 172, § 586. 
 Simcock i\ First National Bank of 
 
 Emporia, 14 Kan. 529, § 1358. 
 Siniingtou v. Kent, 8 Ala. 691, 
 
 §§ 1282, 1290. 
 Simms i\ Southern Ex. Co. 38 Ga. 
 
 129, § 1405. 
 Simon v. The Fung Shuey, 21 La. 
 
 An. 363, § 553. 
 Simonds t\ Strong, 24 Vt. 642, 
 
 §504. 
 Simons v. Gardner. 6 R. I. 255, 
 § 1336. 
 V. Great \V. R. Co. 87 Eng. L. 
 & Eq. 286, § 561. 
 Simpson t\ Burch. 6 Thomp. & C. 
 560 ; 4 Hun, 315, § 1038. 
 V. Knight, 3 Kan. 172, § 128. 
 V. Kniglit, 12 Fla. 144, §§ 1138, 
 
 1144. 
 
 V. Mundee, 3 Kan. 172, § 128. 
 
 V. Terney, 5 Humph. 419, § 799. 
 
 Simsr. Hammond, 33 la. 368, §§ 203, 
 
 231o. 
 
 V. Marryatt, 17 Q. B. 281, § 1404. 
 
 Sinclair r. Stevenson. 1 Carr. & P. 
 
 582, § 1277. 
 Siter V. McClanachan, 2 Gratt. 280, 
 
 §113. 
 Skiff en v. Wray, 6 East, 371, § 479. 
 Skilding v. Warren, 15 Johns. 270, 
 
 §92a. 
 Slater v. Breese, 36 Mich. 77, § 185. 
 Sleat V. Fagg, 5 B. & Aid. 342, 
 
 §558. 
 Sleeper v. Chapman, 121 Mass. 404, 
 
 §322. 
 Slim V. Croucher, 1 De G. F. & J. 
 
 518, §§ 7, 35. 
 Slocomb V. Lizardi, 21 La. An. 355, 
 §§ 751, 752. 
 V. Powers, 10 R. I. 255. § 1156. 
 Small V. Browder, 11 B. Mon. 212, 
 § 432. 
 V. Smith, 1 Den. 583, § 94a. 
 Smalley v. Wright, 40 N. J. L. 471, 
 
 §764. 
 Smedes v. Utica Bank, 20 Johns. 
 371, §§ 714, 786, 829, 846. 
 
 Smith V. Anthony, 5 Mo. 504, §§ 395, 
 
 399. 
 V. Bainbridge, 6 Blackf. 12, 
 
 § 416, 
 V. Beckett, 13 East, 187, § 99L 
 V. Branch Bank, 21 Ala. 125, 
 
 §96. 
 V. Brown, 9 Leigh, 293, §§ 367, 
 
 373 
 V. Capron, 7 Hare, 191, §§ 46, 
 
 321. 
 V. Compton, 3 B. & Ad. 407, 
 
 § 480?. 
 V. Curlee, 59 El. 221, § 956. 
 V. DaU, 13 Cal. 510, § 281. 
 V. Denton. 42 la. 48, §§ 48, 316, 
 
 672, 674. 
 V. Gibson, 15 Minn. 89, §§ 96, 
 
 277, 279, 373. 
 V. Home, 8 Taunt. 144, § 558. 
 V. Ide. 3 Vt. 290, §§ 386, 401. 
 V. Little. 10 N. H.526, § 781. 
 V. Littlefield, 51 N. Y. 539, 
 
 §596. 
 V. Lockridge, 8 Bush, 423, 
 
 t<936. 
 V. Mullet, 2 Camp. 208, § 803. 
 V. Nashua, etc. R. Co. 27 N. H. 
 
 86, §§ 570, 571, 574. 
 V. Pattison, 45 Miss. 619, 
 
 § 1384. 
 V. Railroad, 64 N. C. 235, § 553. 
 V. Randall, 6 Cal. 47, § 1096. 
 V. Reese R. Co. L. R. 2 Eq. 264, 
 
 §§ 10, 35. 
 V. Roach, 7 B. Mon. 17, § 798. 
 V. Shane, 1 McLean, 22, § 44. 
 V. Sparrow, 4 Bing. 84, § 677. 
 V. Smith, 13 Ohio St. 532, § 225. 
 V. Smith, 2 Cr. & M. Exch. 
 
 231, § 439. 
 V. Stewart, 6 Johns. 46, § 593. 
 V. Tallapoosa Co. 2 Woods, 574, 
 
 § 1404. 
 V. Thatcher, 4 B. & Aid. 200, 
 
 §744. 
 V. Trabue, 1 McLean. 87, § 343. 
 V. Water Com'rs, 38 Conn. 208, 
 
 §§ 683, 683b. 
 V. Wells" Adm'rs, 4Bush (Kv.), 
 
 92, § 1197. 
 V. Whiting, 12 Mass. 6, §§ 480o, 
 
 839. 
 V. Yule, 31 Cal. 180, §§ 96, 280, 
 
 289, 297. 
 Smith's Appeal, 47 Pa. St. 128, 
 
 §688. 
 Smout V. Ilbery, 10 M. & W. 1, 
 §671.
 
 Ixxii 
 
 TABLE OF CASES CITED. 
 
 Snee v. Prescot, 1 Atk. 245, § 477. 
 Snider v. Adams Ex. Co. 63 Mo. 
 376, J< o53. 
 V. Snider, 3 Phila. 160, § 228. 
 SnodRrass v. Bicketts, 13 Cal. 360, 
 
 §96. 
 Snow V. Perry, 9 Pick. 542. § 660. 
 Snydackcr v. Brosse, 51 lU. 357, 
 
 45 1296. 
 Snvder v. Sponable, 1 Hill, 567, 
 
 ^\^ 680, 684. 
 Soeding v. Bartlett, 35 Mo. 90, 
 
 § 1399. 
 Solomon v. Hughes, 24 Kan, 211, 
 § 1409. 
 V. S. B. Co. 2 Daly (N. Y.), 104, 
 § 577a. 
 Solyer v. Romanet, 52 Tex. 562, 
 
 § 1410. 
 Somers v. Schmidt, 24 Wis. 417; 
 
 1 Am. Rep. 191, i<j5 480rZ, 480/. 
 Somes V. Brewer, 2 Pick. 184, § 241. 
 V. Skiimer, 3 Pick. 52, g§ 214, 
 216. 
 Sorrel v. Carpenter, 2 P. Wms. 482, 
 
 §§ 338, 348. 
 Souder v. Morrow, 33 Pa. St. 83, 
 
 §208. 
 Soule V. Chase, 1 Rob. (N. Y.) 222, 
 
 §g 1061, 1087, 1078, 1080. 
 South, etc. R. Co. ?'. Henlein, 52 
 
 Ala. 486, § 558. 
 Southard v. McBrown, 63 Cal. 545, 
 
 §430. 
 Southern v. Grim, 67 111. 106, § 515. 
 Southern Ex. Co. v. Moon, 39 Miss. 
 
 822, § 553. 
 Southern, etc. R. Co. v. PUgreen, 
 
 62 Ala. 305, § 1417. 
 Southern & Atlantic Tel. Co. v. 
 
 N. O. etc. R. Co. 2 Cent. L. J. 88, 
 
 §g 1306, 1308. 
 Southwestern R'y v. Felder, 46 Ga. 
 
 433, § 566. 
 Southwick V. McGoveru, 28 la. 533, 
 
 §515. 
 Sowards v. Pritchett, 37 111. 517, 
 
 § 1104. 
 Spadan v. Manvel, 2 Daly, 263, 
 
 §674. 
 Spade V. Hudson R'y, 16 Barb. 383, 
 
 § 532. 
 Spader v. Lawler, 17 Ohio, 371, 
 
 § 225. 
 Spain V. Hamilton's Ex'rs, 1 Wall. 
 
 604, § 436. 
 Spalding v. Butts, 6 Conn. 28, § 348. 
 V. Chicago, etc. R. Co. 30 Wis. 
 110, § 480A:. 
 
 Spalding v. Krutz, 1 Dill. C. C. 414, 
 
 §823. 
 Spaulding v. Ludlow, etc. Mills, 36 
 
 Vt. 150, § 1245. 
 Spear v. Ditty, 9 Vt. 282, § 1107. • 
 Speck V. Rigi,'in, 40 Mo. 405, § 16. 
 Specht V. Detroit, 20 Mich. 168, 
 
 § 1127. 
 Speer v. Bishop, 24 Ohio St. 598, 
 § 520. 
 V. Evans, 47 Pa. St. 141, § 164. 
 Spencer v. Ballon, 18 N. Y. 331, 
 §g 94b, 225. 
 V. Bank of SaUna, 3 Hill, 520, 
 
 §917. 
 V. Hall, 1 East, 688, § 1181. 
 V. Harvev, 17 Wend. 489, § 946. 
 V. AVilsoii, 4 Munf. 130, § 671. 
 Spiers v. Halstead, 71 N. C. 209, 
 
 §1034. 
 Spofford V. Weston, 29 Me. 140, 
 
 §g 30, 245, 277. 
 Sjjooner r. Gardiner, Ry. & Mood. 
 84, § 1012. 
 V. Thompson, 48 Vt. 259, § 664. 
 Sprague i\ Quinn, 108 Mass. 553, 
 § 585. 
 V. Tvson, 44 Ala. 338, § 918. 
 Sprowle V. Lawrence, 33 Ala. 674, 
 
 § 1415. 
 Spunner v. Walsh, 10 Ir. Eq. 386, 
 
 §46. 
 Spurgin v. McPheeters, 43 Ind. 527, 
 
 §94a. 
 Spurlock V. Sullivan, 36 Tex, 511, 
 §25. 
 V. Union Bank, 4 Humph. 336, 
 §957. 
 St. Andrews v. Lockwood, 2 Root, 
 
 239, § 113, 
 St, John V. Conger, 40 111. 535, 
 ^'^ 192 205. 
 V. Roberts', 31 K Y, 441. § 740. 
 Stafford v. Ballou, 17 Vt. 329, § 10. 
 V. Low, 16 Johns. 67, § 393. 
 V. Yates, 18 Johns. 327, §§ 706, 
 707. 
 Stainback v. Bank of Virginia, 11 
 
 Gratt. 269, § 657. 
 Stainor r. Tysen, 3 HUl (N, Y.), 
 
 279, g 660. 
 Stanley v. Chamberlain, 31 N. J. 
 
 L. 565, §§ 31, 673a, 
 Stausell V. Roberts, 13 Ohio, 148, 
 
 §g 225, 231a. 
 Stanton v. Blossom, 14 Mass. 116, 
 
 §§ 705, 707, 1027. 
 Staples V. Fenton, 5 Hun, 172, 
 § 297.
 
 TABLE OF CASES CITED. 
 
 Ixxiii 
 
 Staples V. Okines, 3 Esp. 332, § 1000. 
 Starkweather v. Morgan, 15 Kan. 
 
 274, § laso. 
 State V. Bailev, 16 Ind. 46, g 1404. 
 V. Baird, 9 Kan. 60, ^ 1210. 
 V. Bassett, 33 N. J. L. 26, § 1254. 
 V. Brandon, 6 Kan. 243, § 1210. 
 V. Cumberland, 7 R. I. 75, 
 
 8 480(7. 
 V. Edwards, 19 Mo. 674, § 1414. 
 V. Fii-st National Bank, 4 Nev. 
 
 358, 4^,:< 1202, 1329. 
 V. Gurnee, 14 Kan. 111. § 1260. 
 V. H. & St. J. R. Co. 51 Mo. 
 
 532, S 1311. 
 V. Haves," 78 Mo. 307, g 1416. 
 V. Hindunan, 27 Pa. St. 479, 
 
 g 1405. 
 V. Intoxicating Liq. 73 Me. 278, 
 
 § 1417. 
 V. Jack.son, 39 Me. 291, g 1410. 
 V. Jackson, 35 La. An. 769, 
 
 g 1414. 
 V. Jarrett, 17 Md. 309, § 1404. 
 V. Johnson, 26 Minn, 3l6, 
 
 g 1416. 
 V. Leiber, 11 la. 407, g 1409. 
 V. Ma\'berrv, 48 Me. 218, § 1262. 
 V. Merrick,' 15 la. 123, g 1412. 
 V. Parrott, 71 N. C. 311, "g4807i.. 
 V. Postlewait, 14 la. 446, g 1413, 
 V. Powers, 25 Conn. 48, g 1411, 
 V. Reader, 60 la. 527. g I4l0, 
 V. ShUUng, 14 la. 445, g 1413. 
 V. Townsend. 37 Ala. 247, g554, 
 V. Wdliams, 5 Wis. 308, g 1412, 
 V. Wise, 7 Ind. 645. g 1409. 
 State Bank v. BrovN-n, 12 Ai'k. 94, 
 §348. 
 V. Cason, 10 Ark, 479, g 348. 
 V. Marsh. 10 Ark. 129," g 1363, 
 V. Slaughter, 7 Blackf: 133, 
 § 759. 
 State Mut. Fire Ins. Co. v. Roberts, 
 
 31 Pa. St. gg 438, 446, 
 Stearns v. Gage, 79 N, Y, 102, 
 
 §§ 6oa, 279, 
 Stebbins v. Globe Ins, Co. 2 Hall, 
 
 632, g 480n, 
 
 Stedman v. Gooch, 1 Esp. 3, § 851. 
 
 Steedman v. Poole, 16 L. J, Ch, 
 
 349; 6 Hare, 193, §§ 15, 30, 48, 
 
 313, 328, 
 
 Steel V. ManseU, 6 Rich. 437, § 101, 
 
 V. Merced Co, 62 Cal, 6, § 1217. 
 
 Steele v. Townsend, 37 Ala. 247, 
 
 g553. 
 oieinbach v. Lesse, 27 Cal. 295, 
 g 1358. 
 
 Steinle v. Bell, 12 Abb. Pr. (N. S.) 
 
 171, g 1044. 
 Stephen Hart, The, Blatch, Prize 
 Cas. 387, g 1417, 
 V. Thompson, 28 Vt. 77, § 1234. 
 Stephensoii r, Dickson, 24 Pa, St. 
 148, g 805, 
 V. Primrose, 8 Port, (Ala,) 155, 
 
 §943, 
 r. Rosse, 5 Ir, Ch. 401, § 11, 
 V. State, 28 Ind. 272, g 1417. 
 Sterling v. Peet, 14 Conn, 245, 
 
 g 480c. 
 Sterling Bridge Co. v. Baker, 75 
 
 111. 139, gg 672, 677. 
 Sterry v. Arden, 1 Johns, Ch, 261, 
 
 gg 10, 38, 
 
 Stetson V, Gulliver, 2 Cush. 494,§9G, 
 
 Stevens v. Brown, 3 Vt. 420, ^ 192, 
 
 V. Currv, 10 ilinn. 316, g 1174. 
 
 V. Goodenough, 26 Vt. 676, g 59, 
 
 V. Hampton, 46 Mo, "404, 
 
 gg 134, 135. 
 V. Lynch, 12 East, 38, § 975, 
 V. Monongahela Nat'l Bank, 87 
 
 Pa. St. 163, g 94a. 
 V. Morse, 47 N. H. 532, g§ 112, 
 
 125. 
 V. Reeves, 9 Pick. 198, § 480o. 
 V. Stevens, 1 Ashm. (Pa.) 190, 
 §434. 
 Steward v. Hadlev, 55 Mo, 235, 
 
 g 480c. 
 Stewart v. Clark, 13 Mete. 79, § 96. 
 V. Eden, 2 Cai. 121. g 763, 
 V. Freeman, 10 Harris, 123, g 96. 
 V. Harding, 2 Gray, 335, g 631. 
 V. Hibernia Banking Ass'n, 78 
 
 111. 596, § 1358. 
 V. Huff, 19 la. 557, § 97, 
 V. Kennett, 2 Camp, 177, § 705. 
 V. McSweeny, 14 Wis. 468, 
 
 gg 192, 193. 
 V. Pettigrew, 28 Ark. 372, 
 
 § 1094, 
 V. Sonneborne, 49 Ala. 178, 
 
 g502, 
 V. Wood, 63 Md, 252, § 21, 
 Stewart's Case, L. R. 1 Ch. App. 
 
 574, g 35. 
 Stewton V. Cushe, Yelv. 37, § 1394. 
 Stidham v. Matthews, 29 Ark, 650, 
 
 gg 307, 310, 
 Stiliwell V. Empire F. Ins, Co, 4 
 
 Cent, L. J. 463, g§ 1307, 1308, 
 Stitt V. Huidekopers, 17 Wall. 384, 
 
 g 1279. 
 Stivers v. Thompson, 15 la. 1, 
 § 1188.
 
 Ixxiv 
 
 TABLE OF CASES CITED. 
 
 Stix V. Matthews, 63 Mo. 371, 
 
 §g 910. 956, 968. 
 Stockbridge R'y Bill, Ex parte, L. 
 
 R. 2 Eq. 364, § 1404. 
 Stockdale ?'. Housartl, 9 Ad. & L. 
 lOT : 4 Jur. 70 ; 3 P. D. 330, 
 t< 1404. 
 V. Keys, 79 Pa. St. 251, § 85. 
 Stockett V. Taylor, 3 Md. Ch. Dec. 
 
 537, J5 24. 
 Stockton V. Hall, Hai-d. (Ky.) 160, 
 
 i< 4;J4. 
 Stocks r. Dobson, 19 E. L. & E. 96, 
 
 §431. 
 Stoddard v. Kimball, 6 Cush. 469. 
 § 94b. 
 V. Myers, 8 Ohio, 203, §§ 358, 
 377. 
 Stone V. Connelly, 1 Mete. (Ky.) 
 652, i5 351. 
 V. Cook, 79 in. 424, § 304. 
 V. Elliott, 11 Oluo St. 252. § 372. 
 Story t'. Black (Mont.), 1 Pac. Rep. 
 
 1, §273. 
 Stoughton V. Pasco, 5 Conn. 442, 
 
 § 180. 
 Stout V. Hvatt, 13 Kan. 232, § 316. 
 V. Jackson, 2 Rand. 132, g 480c. 
 Stowe r. N. Y. etc. R. Co. 113 
 
 Mass. 521, gg 563, 566. 
 Straight v. Harris, 14 Wis. 509, 
 
 §203. 
 Strang r. Allen. 44 111. 428, § 1204. 
 Sti-ickland v. Kirk, 51 Miss. 795, 
 
 §§ 65o, 273, 279. 
 Strong V. Smithr 3 McLean, 362, 
 §§ 112, 125. 
 V. Taylor, 2 HiU. 326, § 72. * 
 Stroaghill v. Anstey, 1 De G. M. & 
 
 G. 635, § 22. 
 Struver v. Ocean Ins. Co. 9 Abb. 
 
 Pr. 23. i^ 1328. 
 Stubbs r. Lund, 7 Mass. 453, § 464. 
 Studebaker v. Cody, 54 Ind. 586, 
 
 §^ 420, 422. 
 Sturgis V. Fay, 16 Ind. 429, § 1343. 
 Sturtevant v. Orser, 24 N. Y. 538, 
 
 §466. 
 
 Stuvvesant v. Hone, 2 Barb. Ch. 
 
 151 ; 1 Sandf. Ch. 419, t;^ 203, 204, 
 
 360, 361, 368. 
 
 Sueterlee v. Sir, 25 Wis. 357. § 1040. 
 
 Suffield V. Brown, 9 Jur. (N. S.) 
 
 999 ; 33 L. J. Ch. 256, g 65a. 
 Sugart V. Mavs, 54 Ga. 554, § 480n. 
 Suit v. Woodhall, 113 Mass. 391, 
 
 §§ 672, 677, 683, 6S3a, 690. 
 SulUvan V. Heuse, 3 Colo. 424, 
 g 1408. 
 
 Summerville v. H. & St. J. R. Co. 
 
 62 Mo. 391, ^ 668. 
 Sumner v. Bryan, 54 Ga. 613, § 268. 
 V. Rhode-s, 14 Conn. 135, §g 112, 
 125. 
 Surman v. Barlow, 2 Edm. 167, 
 
 §§15, 313. 
 Sussex Bank v. Baldwin, 17 N. J. 
 L. 487, i;,^ 715. 795, 805, 817, 1021. 
 Sutcliffe V. 3IcDowel, 2 Nott & 
 
 McC. 251. § 1009. 
 Sutton V. Board of Police, 41 Miss. 
 236. § 480(7. 
 V. Tatliam, 10 Ad. & El. 27, 
 ?; 480o. 
 SwaU V. Clarke, 51 Cal. 227, §§ 84, 
 
 91. 
 Swan V. Hodges, 8 Head, 251, §960. 
 Swartliout v. Ctutis, 5 N. Y. 301, 
 
 g?5 10, 20, 05. 
 Swavze v. Britton, 17 Kan. 627, 
 
 g 707. 
 Sweet V. Patrick. 3 Fairf. 1, § 480c. 
 V. Sju-ague, 55 Me. 190, g 1072. 
 Swift V. Smith, 102 U. S. 442, § 94. 
 
 V. Tyson. 16 Pet. 1, g,5 80, 84. 
 Swigert v. Bank of Kentucky, 17 
 
 B. Mon. 268, g§ 103, 257. 
 Svkes V. Halstead, 1 Sandf. 483, 
 
 '§ 671. 
 Sylvester v. Downer, 20 Vt. 355, 
 §87. 
 V. Downer, 18 Vt. 32, § 1388. 
 Syme v. Stewart, 17 La. An. 73, 
 
 § 1405. 
 Symmes v. Major, 21 Ind. 443, 
 § 1413. 
 
 T. 
 
 Tact V. Crawford, 1 McCord, 265, 
 
 § 101. 
 
 Talbot V. Bedford, Cooke (Tenn,), 
 
 447, § 480c. 
 
 V. Gay. 18 Pick. 534, p§ 388, 413. 
 
 Tallman i\ White, 2 N. Y. 66, § 1109. 
 
 Talman v. Barnes, 12 Wend. 227, 
 
 § 1328. 
 Tankard v. Tankard, 79 N. C. 54, 
 
 §g 65a, 273. 278, 288. 
 Tanner v. Florence, 1 Ch. Cas. 259, 
 
 §§ 15, 308, 321. 
 Tardy v. Boyd, 26 Graft. 631, § 985. 
 Tarrant v. Blanchard, 1 De G. J. & 
 
 S. 107. S 11. 
 Tate V. Stooltzfoods, 16 S. & R. 35, 
 
 §127. 
 Taunton Bank v. Richardson, 5 
 
 Pick. 436, §§ 942, 1397.
 
 TABLE OF CASES CITED. 
 
 Ixxv 
 
 Taunton Copper Co. v. Merch. Ins 
 
 Co. 22 Pick. 108, § 480?i. 
 Taylor v. ^tna Life Ins. Co. 13 
 Gray, 434, i<§ 480ii. 
 V. Balcer, 5 Price, 306. §§ 15, 30 
 
 313. 
 V. Doe, 13 How. 287, § 238. 
 V. French, 4 E. D. Smith, 458 
 
 gg 946, 951. 
 V. Graham, 18 La. An. 656 
 
 § 1404. 
 V. Huj:;hes, 2 Jones & L. 34 
 
 t< 676. 
 V. Kelly, 3 Jones Eq. 240 
 
 §,§ 273, 278. 
 V. Lowcnstein, 50 Miss. 278 
 
 §:< 246, 278. 
 V. Maris' Ex'rs, 5 Rawle, 51 
 
 §203. 
 V. Ross, 3 Yerg. 330, §§ 3S6 
 
 396. 
 V. Snyder, 3 Den. 145, § 991. 
 V. Stibbert, 2 Ves. Jr. 437 
 §§ 48, 55, 278, 279, 281, 313 
 V. Thomas, 5 N. J. Eq. 331 
 
 §97. 
 V. Youno;, 3 Watts, 339, § 1020, 
 Tebbets v. Dowd, 23 Wend. 379 
 
 §§ 956, 960, 969. 971. 
 Tefit V. Munson, 57 Nv Y. 97, § 210 
 Telegraph Co. v. Griswold, 37 Ohio 
 
 St. 301, § 555. 
 Temple v. State, 15 Tex. App. 304 
 49 Am. Rep. 200, § 1411. 
 V. The People, 6 Bradw. 378 
 § 150. 
 Templeton i\ Morgan, 16 La. An 
 
 438. § 1413. 
 Terrel i\ Andrew Co. 44 Mo. 309 
 §§ 147, 149, 167. 
 V. Bank of Mobile, 12 Ala. 502 
 § 683o. 
 Terry v. Merch. Bank, 66 Ga. 177 
 § 1408. 
 V. Milwaukee, 15 Wis. 490 
 § 1404. 
 Texas v. White, 7 Wall. 733, § 146 
 Thackery v. Blackett, 3 Camp. 164 
 
 § 991. 
 Tharpe v. Dunlap, 4 Heisk. 674 
 
 §•§ 339, 342a. 
 Thatcher v. MoiTis, 11 N. Y. 437 
 § 1405. 
 V. West. R. Nat'l Bank, 19 
 Mich. 196, § 94a. 
 Thaver v. Daniels, 113 Mass. 129 
 
 § 436. 
 Tliillman v. Gueble, 32 La. An 
 260, § 735. 
 
 Third National Bank v. Lange, 51 
 
 Md. 138, § 87. 
 Thomas v. Blackmore, 5 Yerg. 113, 
 S 96. 
 V. Bost. & P. R. Co. 10 Mete. 
 
 472, § 566. 
 V. Davis, 7 B. Mon. 227, § 1230. 
 V. Grand G. Bank, 9 Sm. & M. 
 
 201, §§ 112, 125, 589, 394. 
 V. Hubbell, 15 N. Y. 405, § 480Z. 
 V. Kennedy, 24 la. 397, § 229. 
 Thomason v. Frere, 10 East, 418, 
 
 § 497. 
 
 Thompson v. Cartwright, 33 Beav. 
 
 178, t;t5 688, 690. 
 
 V. Glover (Ky.), 16 Cent. L. J. 
 
 16; 8 Rep. 589, §§394, 406. 
 
 V. Hamilton, 12 Pick. 426, 
 
 § 480ii. 
 V. Haskell, 21 111. 215, § 1412. 
 V. Pioche, 44 Cal. 508, §§ 96, 
 
 274, 280. 286. 
 V. Posten, 1 Duv. 415. § 94t>. 
 V. Railroad, 28 Md. 396, § 457. 
 V. Simpson, 1 Dr. & War. 459, 
 
 §104. 
 V. Speirs, 13 Sm. 469, § 433. 
 V. Whitman, 18 Wall. 457, 
 
 § 1379. 
 V. Wilcox, 7 Lans. 376, § 208. 
 V. WiUiams, 14 Cal. 160, §§ 738, 
 831. 
 Thorington v. Smith, 8 Wall. 1, 
 
 § 146. 
 Thornber v. Sheard, 12 Beav. 589, 
 
 §29. 
 Tiiornliill v. Burthe, 29 La. An. 
 
 639, § 185. 
 Thornton v. Knox, 6 B. Mon. 74, 
 § 330. 
 V. Wynn, 12 Wheat. 183, § 956. 
 Thorp V. Merrill, 31 Minn. 336, 
 
 § 1'5'6. 
 Thorpe v. Peck, 28 Vt. 127, § 781. 
 ThraJl v. Horton, 44 Vt. 386, § 94a. 
 Throckmorton v. Price, 28 Tex. 
 
 605, §§ 150, 154. 
 Thunder v. Belcher, 3 East,- 449, 
 
 § 600. 
 Thurber v. Dwyer, 10 R. I. 355, 
 
 § 586. 
 Tibbals v. Jacobs, 31 Conn. 428, 
 
 § 143a. 
 Ticlmor, In re, 35 Beav. 317, 
 
 §437. 
 Titfany v. Boatman's Inst. 18 Wall. 
 
 375, § 6836. 
 Tiffin V. Slillington, 3 Mo. 418, 
 §§ 1209, 1311.
 
 Ixxvi 
 
 TABLE OF CASES CITED. 
 
 Tigross. The, 33 L. J. Ailm, 07 ; 9 
 
 Jiir. N. S. 361, «M'3'1. 477. 
 Tildcsley v. Lodge, 3 Smale & G. 
 
 o43, 4; 11. 
 Tillinsliast v. Champliu, 4 R. I. 
 
 173. J< 2(5. 
 Tilton V. Hunter, 24 Me. 29, §§ 205, 
 
 210, 223. 
 Timlow V. Phila. etc. R. Co. 99 Pa. 
 
 St. 284, § 1408. 
 Tinuns v. Delisle, 5 Blackf, 447, 
 
 ^.^ 8-14. 883. 
 Timson v. Ramsbottom, 2 Keen, 35, 
 
 § 4o7. 
 Tindal v. Brown, 1 T. R. 164, 
 
 i^.^ 702, 703, 785. 
 Titclibiirne v. White, 1 Str. 145, 
 
 ^544. 
 Todd V. Edwards, 7 Bush, 89, § 846. 
 V. Outlaw. 79 N. C. 235, § 374. 
 Toledo, etc. Ins. Co. v. Speares, 16 
 
 Ind. 52, § 480». 
 Toledo, etc. R. Co. v. Butler. 53 111. 
 
 323, S 1381. 
 Tombeckbee Bank v. DumeU, 5 
 
 Mason, 66, >i 483. 
 Tompkins v. Wiltberger, 56 111. 
 
 385, § 1372. 
 Tongue r. Morton, 6 Har. & J. 21, 
 
 J; 339. 
 Torrey v. Foss, 40 Me. 74, § 998. 
 Towdy V. Ellis, 22 Cal. 050, ^ 1327. 
 Towle V. Leavitt, 23 N. H. 36, 
 
 t?§ 660, 6r)2. 
 Town of Waltham v. Kemper, 55 
 
 111. 346 ; 8 Am. Rep. 652, § iSOg. 
 
 Townsend v. Lorain Bank, 2 Ohio, 
 
 315. J^ 840. 
 
 V. Tallent, 33 Cal. 45, ^g 1053, 
 
 1054, 1130. 
 
 Tracy v. Steam, etc. Co. 1 E. D. 
 
 Smith (N. Y.). 349, §1171. 
 Traders' Ins. Co. v. Roberts, 9 
 
 Wend. 404, § 446. 
 Trail v. Ellis, 16 Bear. 350, § 690. 
 Ti-ain v. Gold, 5 Pick. 380, § 4801. 
 V. Jones, 11 Vt. 444. §.§ 386, 394, 
 402. 
 Trans. 'Co. v. Marshall, 37 Barb. 
 
 509, § 71. 
 Travis v. Brox^m, 43 Pa. St. 9, § 1233. 
 Treasurer v. Bishop, 39 Vt. 353, 
 
 g 1411. 
 Tredway v. McDonald, 51 la. 663, 
 
 ^ ''74 
 Trefts 'v. King, 18 Pa. St. 157, 
 
 §g 25, 40. 
 Trenton Banking Co. v. Woodruff, 
 
 2 N. J. Eq. 117, § 6836. 
 
 Trieber v. Commercial Bank of St. 
 
 Louis, 31 Ark. 128, § 80. 
 Trigg V. Conway, 1 Houst. 538. 
 
 § 1405. 
 Trimble v. Boothby, 14 Ohio, 109, 
 § 357. 
 V. Thorn, 16 Johns. 152. g 969. 
 Tripe t'. Marcy, 39 N. H. 439, ^ 208. 
 Ti-iplett V. Hunt, 3 Dana, 126, ^ 717. 
 Ti-ip]) V. De Bow, 5 How. Pr. (N. Y.) 
 
 114, g 1209. 
 
 Ti-ot V. McGavock, 1 Yerg. (Tenn.) 
 
 469, § 1097. 
 Trotter v. Grant, 2 Wend. 413, 
 
 i^ 480o. 
 Trov City Bank v. Wilcox, 24 Wis. 
 
 671, §?$ 288, 290. 
 True V. Collins, 3 Allen. 438, § 924. 
 V. Harding, 12 Me. 193, gg 386, 
 401. 
 Ti-uesdale v. Ford, 37 111. 210, 
 
 gc* 246, 273, 278, 288. 
 Truitt V. Ti-uitt, 38 Ind. 16, g 344. 
 Trull V. Bigelow, 16 Mass. 406, 
 
 gg 203, 241. 
 Truscott V. King, 6 Barb. 346, g 96. 
 Ti-ustees, etc. v. Eoi-k, 84 N. Y.'220, 
 
 g 280. 
 Tucker v. Adams, 52 Ala. 254, 
 §593.. 
 V. Baker, 10 Johns. 270, § 625. 
 V. Harris, 13 Ga. 1, g 219. 
 V. Henzill, 4 Ii-ed. Ch. R. 513, 
 
 g 690. 
 V. State, 11 Md. 322, g 1414. 
 V. Tilton, 55 N. H. 223. g 271. 
 Tuckermau v. Fi-ench, 7 Greenl. 
 
 115, §402. 
 
 Tudor V. Perkins, 3 Day, 364, g 434. 
 Tullis V. Scott, 38 Tex. 537, § 1374. 
 Tunison v. ChambUn, 88 111. 378, 
 
 g?; 273, 277, 279. 
 Tuuno V. Lague, 2 Johns. Cas. 1, 
 
 gg 714, 979. 
 Tuustall V. Trapps, 3 Sim. 301. 
 §672. 
 V. Walker, 2 Sm. & M. 638, 
 g 907. 
 Turnlnill v. Bowyer, 40 N. Y. 450. 
 
 § 1128. 
 Turner r. Babb, 60 Mo. 342, g 377. 
 V. Crebill, 1 Ohio, 372, §g 357, 
 
 Or*-!; 
 
 V. Fish,' 28 Miss. 306, g 1408. 
 V. Goodrich, 26 Vt. 708, § 480f . 
 V. Leach, 4 B. & Aid. 451. 
 
 gg 795, 797. 
 V. Liverpool Dock Co. 6 Excl:, 
 
 543, § 464,
 
 TABLE OF CASES CITED. 
 
 Ixxvii 
 
 Tui'ner's Adm'rs v. Patton, 49 Ala. 
 
 406, § 1411. 
 Tuttle V. Jackson, 6 Wend. 213, 
 
 §§ 10, 65a, 231, 273. 
 Tweedale v. Tweedale, 23 Beav. 
 
 341, § 690. 
 Twvman v. Hawley, 24 Gratt. 512. 
 
 §' 593. 
 Tybee, The, 1 Woods, 358, §§ 573, 
 
 575. 
 Tybee v. Webb, 6 Beav. 552, §§ 47, 
 
 674, 688. 
 Tyly V. Morrice, Carthew, 485, 
 
 § 542. 
 Tyson v. Smith, 1 Nev. & P. 784, 
 
 § 480u. 
 
 u. 
 
 Unano;st V. Hibler, 26 Pa. St. 150, 
 
 § 391. 
 Underwood v. Jeans, 4 Harr. (Del.) 
 201, §§ 1097, 1098. 
 V. Lord Courtown, 2 Sch. & 
 Lef. 40, § 104. 
 Unger v. Mooney, 63 Cal. 586, §280. 
 Union Bank i\ Grimshaw, 15 La. 
 321, gi^ 711, 956. 
 V. Hyde, 6 Wheat. 572, § 935. 
 V. Willis, 8 Mete. 504, § 87. 
 Union, etc. Ins. Co. v. Campbell, 
 
 95 111. 267, ^ 143a. 
 Union Ex. Co. v. Graham, 23 Ohio 
 
 St. 595, § 558. 
 Union Canal Co. v. Young, 1 
 
 Whart. 432, § 226. 
 Union Mining Co. v. Rocky Mount- 
 ain National Bank, 2 Colo. 249, 
 §683b. 
 Union Steamboat Co. v. Klnapp, 73 
 
 111. 506, § 571. 
 United States v. Am. Gold Coin, 1 
 Woolw. 217, § 1417. 
 V. Grossmayer, 9 WaU, 73, 
 
 §§ 748, 980. 
 V. Hooe, 3 Cranch, 73, §§ 180, 
 
 272. 
 V. Jackson, 104 U. S. 41, §§ 1404, 
 
 1410. 
 V. Johnson, 2 Sawyer, 482, 
 
 § 1411. 
 V. Palmer, 3 Wheat. 610, § 1413. 
 V. Turner, 11 How. 663, ^ 1405. 
 V. Vaughn, 3 Binn. 394, | 436. 
 V. Winchester, 2 McLean, 135, 
 § 1257. 
 United States Bank v. Burke, 4 
 Blackf . 141, g§ 342a, 353. 
 V. Goddai-d, 5 Mass. 366, § 795. 
 
 United States Bank i: Southard, 
 
 17 N. J. L. 473, §§ 957, 973, 1021. 
 United States Ins. Co. v. Shriver, 
 
 3 Md. Ch. 381, §§ 113, 244, 254, 
 
 683a. 
 Upton V. Moore, 44 Vt. 552. § 431. 
 Uther V. Rich, 10 Ad. & El. 784, 
 
 §80. 
 
 V 
 
 Valentine v. Havener, 20 Mo. 133, 
 
 § 239. 
 Valk V. Gaillard, 4 Str. 99, § 750. 
 V. Simmons, 4 Mason, 113, 
 § 1009. 
 Van V. Corpe, 2 Mylne & K. 369, 
 
 §§ 30, 331. 
 Vain Aken v. Gleason, 34 Mich. 477 
 
 §262. 
 Van Busku-k v. Hartford, etc. Ins. 
 
 Co. 14 Conn. 141, § 436. 
 Van Doren v. Robinson, 16 N. J. 
 
 Eq. 256, §§ 15, 313. 
 Van Hook v. Throckmorton, 8 
 
 Paige, 33, § 341. 
 Van Hoesen v. Van Alstyne, 3 
 
 Wend. 75, § 738. 
 
 Van Keuren t". Cent. R. Co. of N. 
 
 J. 38 N. J. L. 165, §§ 279, 
 
 299. 
 
 V. Corkins, 66 N. Y. 77, § 431. 
 
 Van Lenven v. Lyke, 1 N. Y. 515, 
 
 § 480 «. 
 Van Omeron v. Dowick, 2 Camp. 
 
 44, § 1404. 
 Van Orden v. Johnson, 1 McCarter, 
 
 376, § 203. 
 Van Rensselaer v. Clark, 17 Wend. 
 
 25, i< 199. 
 Van Santvoord v. St. John, 6 Hill, 
 
 157, § 576. 
 Van Thorniley v. Peters, 26 Ohio 
 
 St. 471. §§ 147, 149. 
 Van Vechten v. Pruyn, 13 N. Y. 
 
 549, ^ 852. 
 Van Wart v. WooUey, 3 B. & C. 
 
 439, § 742. 
 Van Wickle v. Downing, 19 La. 
 
 An. 83, § 957. 
 Van Wormer v. Albany, 15 Wend. 
 
 262, § 4807i. 
 Van AVyck v. Hardy, 4 Abb. App, 
 
 Dec. 496, § 1045. 
 Vance v. McNairy, 3 Yerg. 176, 
 
 §96. 
 Vandiver v. Roberts, 4 W, Va. 493, 
 
 § 1372.
 
 Ixxviii 
 
 TABLE OF CASES CITED. 
 
 Vanduyne v. Vreeland, 13 N. J. 
 
 Eq. 142. § 54. 
 Vassault v. Austin, 36 Cal. C91, 
 ^96. 
 V. Seitz, 31 Cal. 225, § 1414. 
 Vattier v. Hinde, 7 Pet. 253, § 10. 
 Vaughn v. Greer, 38 Tex. 530, ^ 97. 
 V. Tracy, 22 Mo. 415; 25 Mo. 
 318," ^g 16, 2T5, 276. 
 Veazie v. Parker, 23 Me. 170, §§ 205, 
 
 207, 284. 
 Verges v. Prejean, 24 La. An. 78, 
 
 §§ 147, 149. 
 Verner v. Switzer, 33 Pa. St. 208, 
 
 §541. 
 Vei-non v. Manhatt m Co. 22 Wend. 
 
 183: 17 Wend. 524, §§ 505, 511. 
 Viele V. Gerniania Ins. Co. 26 la. 
 !J, § 956. 
 r. Judson, 83 N. Y. 33, § 149. 
 Vignolles v. Bowen, 13 Ir. Eq. 194, 
 
 ^' 35. 
 Villard V. Robert, 1 Str. Eq. 393, 
 
 S 119- 
 Yinal v. Richardson, 13 Allen, 531, 
 
 §§ 415, 418. 
 Virden v. Ellsworth, 15 Ind. 144, 
 
 8 416. 
 Virgin v. Wingfield, 54 Ga. 451, 
 
 § a- 
 Virginia, etc. Co. v. Sayers, 26 
 
 Gratt. 328, ^ 553. 
 Voorhees v. Atlee, 29 la. 49, § 936. 
 Vorhees v. Bank of U. S. 10 Pet. 
 
 449, g§ 1057, 1085. 
 Vullianiy v. Noble, 3 Meriv. 593, 
 
 § 496. 
 Vyse V. Wakefield, 6 M. & W. 443. 
 
 §§418,430. 
 
 w. 
 
 Waffle V. Goble, 53 Bai-b. 517, 
 
 § 1033. 
 Wagner v. Diedi-ich, 50 Mo. 484, 
 § 94a. 
 V. Tice. 36 la. 509, § 1189. 
 Wailes v. Cooper, 34 Miss. 208, §§ 10, 
 
 29 307. 
 Waldy V. Gray, L. R. 20 Eq. 238, 
 
 § 690. 
 Walker v. Allen, 72 Ala. 456, § 1415. 
 V. Bank of State, 8 Mo. 704, 
 
 §702. 
 V. Forbes, 25 Ala. 139, §§ 395, 
 
 397, 426. 
 V. Gilbert, 1 Freem. Ch. 75, 
 §§ 44, 97, 103. 
 
 Walker r. Jackson, 10 M. & W. ICl, 
 gi; 537, 540. 
 V. Lavertv, 6 ]\Iunf. 487. § 972. 
 V. Rogers^ 40 lU. 278, §§ 957, 
 
 973, 1017. 
 V. Scott, 29 Ga. 392, §§ 1199, 
 
 1200. 
 t'. Sharpe, 14 Allen, 43, § 611. 
 V. Shar]3c, 103 Mass. 154, i^ 640. 
 V. Smallwood, Amb. 676, § 348. 
 V. Stetson, 14 Ohio St. 89, §911. 
 V. Transp. Co. 3 Wall. 150, 
 
 § 553. 
 V. TunPtall, 3 How. (Sliss.) 259, 
 §907. 
 Wall V. Bry, 1 La. An. 312, § 935. 
 Wallace t'. Agiy, 4 Mason, 336. 
 §822. 
 V. Moody, 26 Cal. 387, § 137. 
 Wallen v. Huff, 3 Sneed, 83, § 343. 
 Wallis V. Rhea, 10 Ala. 451, § 231. 
 Walls r. Bailey, 49 N. Y. 464, §'480o. 
 Walsh V. Bovle. 30 Md. 267, § 96. 
 V. Frank. 19 Ai-k. 370, § iSOn. 
 V. Miss. Trans. Co. 53 Mo. 434, 
 § 480h. 
 Walter v. Havnes, Ry. & Mood. 
 149, § 924. 
 V. Maunde, IJ. & W. 181, § 46. 
 Walters v. Brown, 15 Md. 285, 
 §§ 870, 873. 
 V. Monroe, 17 Md. 154, §§ 943, 
 
 963. 
 7.'. Wash. Ins. Co. 1 la. 404, §434. 
 Walwyn v. St. Quintin, 1 Bos. & P. 
 
 654, 'gi^ 1001, 1004. 
 Walz V. Alback, 37 ISld. 404. § 87. 
 Wanzer v. Carr, 76 N. Y. 536. §431. 
 V. Howland, 10 Vv^is. 8, § 1371. 
 Wai-d V. Heniy, 19 Wis. 76, § 1413. 
 V. Ward, 5 Conn. 595. § 418. 
 r. Morrison, 35 Vt. 593, § 436. 
 V. Smith, 7 WaU. 447, § 748. 
 Warden v. HoweU, 9 Wend. 170, 
 
 § 946. 
 Warder v. Tucker, 7 Mass. 449, 
 
 §g 337, 238, 975, 1017. 
 Wardin v. Adams, 15 Mass. 233, 
 
 §337. 
 Ward's Ex'rs v. Hague, 25 N. J. 
 
 Eq. 397, § 203. 
 Wanlwell v. Haight, 3 Barb. 549, 
 
 §g 518, 519. 
 Ware v. Lord Egmont, 4 De G. I\I. 
 
 & G. 460. i^g 11, 42. 
 Wark V. Willard, 13 N. H. 389, 
 
 gg 214, 216. 
 Warner v. W^hittaker, 6 Mich. 133, 
 §96.
 
 TABLE OF CASES CITED. 
 
 Ixxix 
 
 Warnock v. Wightman, 1 Brev. 
 
 339, § 201. 
 Warren r. Ball, 87 111. 76, §§ 490, 
 493. 
 V. Copeiin, 4 Mete. 594, § 436. 
 V. French, 6 Allen, 317, § 527. 
 V. Richmond, 53 111. 53, J? 373. 
 V. Sweet, 31 N. H. 833, §§ 17, 
 379. 
 Warrington v. Furbor, 8 East, 243, 
 
 §991. 
 Warwick v. Warwick, 3 Atk, 391, 
 
 §§ 674, 688. 
 Washburn v. Goodman, 17 Pick, 
 
 519, § 496. 
 Washburne v. Burnliam, 63 N. Y. 
 
 301, §S 119, 133, 
 Washington v. Pratt, 8 Wheat. 681, 
 
 § 1109. 
 Washington Bank v. Lewis, 33 
 
 Pick. 34, §§ 683, 683a, 
 Wason V. Wareing, 15 Beav. 151, 
 
 gi^ 13, 30. 
 Watkius V. Crouch, 5 Leigh, 533, 
 §§ 946, 949. 
 V. Edwards, 33 Tex, 443, § 377. 
 Watkinson v. Bank of Penn, 4 
 
 Whart, 483, §g 506, 519, 
 WatUngton v. Howley, 1 Desau. 
 
 167, S 370, 
 Watson V. Beabout, 18 Ind. 381, 
 §§ 420, 422, 
 V. Hnrt, 6 Gratt. 633, § 87. 
 V. King, 4 Camp, 373, § 671. 
 V. Mercer, 8 Pet, 88, § 137. 
 V. Phelps, 40 Ga. 483, §§ 48, 
 
 316. 
 V. Walker, 33 N, H. 471, 
 
 §^ 1387, 1400, 
 V. Wells, 5 Conn. 468, §§ 674, 
 
 684, 
 V. Wilcox, 89 Wis, 643, § 369. 
 V. Wilson, 2 Dana, 406, § 357, 
 Way's Trusts, In re, 2 De G, J, & 
 
 S, 365, g 430, 
 Weakly v. Bell, 9 Watts, 273, 
 
 §900. 
 Weatherwax v. Paine. 3 Mich. 555, 
 
 §87. 
 Weaver v. Borden, 49 N. Y. 386, 
 §93, 
 V. Crocker, 49 111, 461, § 1365. 
 Webb V. Dickenson, 11 Wend. 6, 
 §403, 
 V. W^ilcher, 33 Ga. 565, § 219, 
 Webber v. Cox, 6 Monr. 110, § 1087, 
 V. Taylor, 3 Jones Eq, 9, § 378, 
 Webster v. Madox, 63 Me. 356, 
 §§399, 301, 305. 
 
 Webster v. Webster, 3 Swanst. 491, 
 I 496. 
 V. Van Steenburgh, 46 Barb. 
 311, § 97. 
 Weed V. Pierce, 9 Cow, 733, §§ 343a, 
 
 853. 
 Weeks v. Tomes, 16 Hun, 349, 
 
 §848. 
 Weidler v. Farmers' Bank of Lan- 
 caster, 11 S. & R. 134, § 43. 
 Weil V. Lowenthal, 10 la. 575, 
 
 § 1353, 
 Weise v. Barker, 3 Pac, Rep. (Colo,) 
 
 919, § 152. 
 Weisser v. Dennison, 10 N. Y. 68. 
 
 § 674. 
 
 Weit V. Thayer, 118 Mass, 473, § 80, 
 
 Wells V. Archer, 11 S, R, 412, § 438. 
 
 V. Child, 12 Allen, 330, § 4131, 
 
 V. Jackson, etc. Co, 47 N. H, 
 
 285, § 1413. 
 
 Welsh V. Gould, 2 Root, 287, § 113. 
 
 V. Kirkpatrick, 30 Cal. 202, 
 
 § 1318, 
 V. Pittsburg, etc, R, Co. 10 
 Ohio St. 65, § 555. 
 Welton V. Garilardi, G Cal. 245, 
 
 § 1332, 
 Wemple v. Dangerfield, 3 Sm, & 
 
 M. 445, § 805, 
 Wendall v. North, 24 Wis. 223, 
 § 480c, 
 V. Wadsworth, 20 Johns. 058, 
 § 103. 
 West r. Brown, 6 Ohio St. 542, 
 §g 805. 808, 
 V. Reid, 2 Ha, 249, §§ 11, 34. 
 West Branch Bank v. Fulmer, 3 
 
 Pa. St. 399. § 1021, 
 West J. R. R. Co. V. Trenton Car 
 
 Co, 32 N. J. L, 515, § 72, 
 Westbrook v. Gleason, 79 K Y, 33, 
 
 §96, 
 Westcott V. Fargo, 63 Barb, 353, 
 
 § 553. 
 Western Tr. Co, v. Marshall, 37 
 
 Barb. 509, §§ 67, 71. 
 Western Bank v. Sherwood, 39 
 
 Barb, 383, § 431, 
 Westervelt v. Haff, 3 Sandf. Ch. 
 
 98, § 673. 
 Westfield v. Mayo, 133 Mass. 100, 
 
 § 480Hi. 
 Westoby v. Day, 33 Eng. L. & Eq, 
 
 261, §■ 1160. 
 Wetherbee v. Dunn, 33 Cal, 106, 
 
 § 1413, 
 Weymouth v. Wash. etc. R. Co, 1 
 MacArthur, 19, § 1303.
 
 Ixxx 
 
 TABLE OF CASES CITED. 
 
 ■\Vlialley v. Small, 25 la. 184, § 167. 
 ■Wharton ?'. Wriglit, 1 Cair. & Kir. 
 
 585, § 1)05. 
 When ton v. Dyer, 15 Conn. 307, 
 
 §lia. 
 Wheeler v. Webster, 1 E. D, Smitli, 
 
 1, ^ 1414. 
 Whit bread v. Jordan. 1 You. & 
 
 Coll. Exch. 303. gg 11, 246, 219. 
 White c. Carpenter, 2 Paige, 217, 
 t^§ 316, 341. 
 V. County, 58 111. 297; 11 Am. 
 
 Rep.' 652, 8 480^. 
 V. Denman, 1 Ohio St. 110, 
 
 i^'^ 112, 139, 231a. 
 V. Foster, 102 Mass. 375, §§ 14, 
 
 244, 308. 
 V. Hampton, 13 la. 259, § 168. 
 V. King, 53 vVla. 162, § 6T9. 
 V. Murphy, 3 Rich. L. 369, 
 
 ^ 519. . 
 V. Patten, 24 Pick. 324, §§ 214, 
 
 216. 
 V. Perry, 14 W. Va. 66, § 374. 
 V. Stoddard, 11 Grav, 258, 
 
 §^ 724, 993. 
 V. Svdenstricker, 6 W. Va. 46, 
 
 ■§ 1381. 
 V. Wakefield, 7 Sim. 401, §§ 65a, 
 
 297, 299, 303. 
 V. Welsh, 38 Pa. St. 396, § 463. 
 V. Williams, 13 Tex. 258. i^ 480c. 
 Whiteacre v. Symonds, 10 East, 13. 
 
 S650. 
 
 Whitehead v. Anderson, 9 M. & W. 
 
 518. t^§ 462, 464, 470, 480. 
 
 V. Clifford. 5 Taunt. 518, i, 042. 
 
 r. Tuckett, 15 East, 400. g 653. 
 
 . V. Wells, 29 Ark. 99, § 673. 
 
 Whitelock v. Castro, 22 Tex. 108, 
 
 § 1410. 
 AVhitesell v. Crane, 8 W. & S. 369, 
 
 § 480». 
 Whitesides v. Poole, 9 Rich. L. 68, 
 
 § 1405. 
 Whitfield V. Faussett. 1 Ves. Sr. 
 
 387, S 11. 
 Whitlesey v. Dean, 2 Ark. 263, 
 
 §794. 
 Wliitman v. Farmers' Bank, 8 Port. 
 
 (Ala.) 258, §i< 717, 798. 
 Whitney v. Abbot, 5 N. H. 378, 
 "§ 941. 
 V. Groot, 24 Wend. 82, § 402. 
 Wliittington v. Wright, 9 Ga. 23, 
 
 §207. 
 Whitwell V. Johnson, 17 Mass. 449, 
 §§ 794. 815, 822. 
 V. Vincent, 4 Pick. 449, § 72. 
 
 Wickersham i\ Chicago, etc. Co. 
 
 18 Kan. 487, § 96. 
 Wickes V. Lake, 25 W^is. 71, §§ 273, 
 
 284, 288, 290. 
 Wickleffe v. Breckenridge, 1 Bush, 
 
 427, §§ 342o, 348. 
 Wicks V. Hatch, 62 N. Y. 535, § 662.- 
 Wiggins Ferry Co. v. Cliic. R. Co. 
 
 5 Mo. App.374, §1417. 
 Willnaham v. Livesy, 18 Beav. 206, 
 
 §§281, 303. 
 Wilcox V. Hill, 11 Mich. 256, § 96. 
 V. McNutt, 2 How. (Miss.) 776, 
 
 § 845. 
 V. Routh, 9 Sm. & M. 476, 
 §§ 744, 750. 
 Wilcoxen v. Miller, 49 Cal. 193, 
 
 §96. 
 Wilde V. Gibson, 1 H. of L. Cas. 
 605, § 37. 
 V. Wilde, 2 Nev. 306, §1190. 
 Wilder v. Brooks, 10 Minn. 50, 
 
 §§ 113, 118. 
 Wildes V. Savage, 1 Story, 22, 
 
 §§ 395, 401. 
 Wiley V. Knight, 27 Ala. 336, §§ 687, 
 
 689. 
 
 Wilkes V. Jacks, Peak, 267, § 1017. 
 
 Wilkins v. Commercial IBank. 6 
 
 How. (Miss.) 217, §§ 743. 745, 746. 
 
 Wilkinson v. Hall, 3 Bing. N. Cas. 
 
 508, § 585. 
 Will V. Whitney, 15 Ind. 194, 
 
 § 1159. 
 Willard V. Buckingham, 36 Conn. 
 
 395, §§ 675, 690. 
 Willes V. Greenhill, 4 De G. F. & 
 
 J. 147, §§ 679. 681, 694. 
 William H. Nortluup, The, Blatch. 
 
 Pr. Cas. 235, § 1417. 
 Williams v. Adams, 43 Ga. 407, 
 § 225. 
 V. Bank of United States, 2 
 Pet. 96, §§ 730, 786, 831, 
 844. 
 V. Banks, 11 Md. 198, §§ 118, 
 
 225. 
 V. Beard, 1 S. C. 309, § 101. 
 V. Benton, 12 La. An. 91, § 1257. 
 V. Brobst, 10 Watts, 111, §1023. 
 V. Deriar, 31 Mo. 13, § 595. 
 V. Empire Ins. Co. 6 Rep. 673, 
 
 § 1307. 
 V. Granger, 4 Day, 444, g§ 418, 
 
 1389. 
 V. Jones. 1 Bush, 621. § 642. 
 V. Logan, 32 Ga. 165, § 225. 
 V. Matthews, 3 Cow. 253, 
 §§ 740, 1397.
 
 TABLE OF CASES CITED. 
 
 Ixxxi 
 
 Williams v. Miller, 1 Wash. Ter. 
 105, § 1186. 
 r. Niagai-a F. Ins. Co. 50 la. 
 
 561, §480*1. 
 V. Peyton, 4 Wheat. 77, § 1106. 
 V. Smith, 3 B. & Aid. 496, 
 
 i^S 805, 824. 
 V. Sprii^g, 6 Ohio St. 585, §§ 281, 
 
 288. 294. 
 V. Springs, 7 Ired. 384, § 1389. 
 V. State. 67 Ga. 260, § 1411. 
 V. State, 64 Ind. 553, § 1411. 
 V. Tatnall, 39 HI. 553, §§ 687, 
 689. 
 WiUiamson v. Brown, 15 N. Y. 354, 
 t<§ 8, 11, 30, 246, 249. 
 V. Wardlaw, 40 Ga. 703, § 1150. 
 Willis V. Green, 5 HiU, 233, §§ 758, 
 761. 
 V. Vallett, 4 Mete. (Kv.) 186, 
 g 694. 
 Willison r. Pattison, 7 Taunt. 439, 
 
 S 980. 
 Wilson V. Anderton, 1 B. & Aid. 
 450, § 471. 
 V. Basket, 47 Miss. 637. S 1355. 
 V. Cockriil, 8 Mo. 7, t< 1405. 
 r. Conway F. Ins. Co. 41 R. I. 
 
 141, §"^674. 
 V. Hamilton, 4 Ohio St. 733, 
 
 § 558. 
 V. Hart, 3 H. & M. 551 ; L. R. 
 1 Ch. 463, i^g 30, 65a. 386. 
 V. Hunter, 30 Ihd. 466, §§ 64, 
 
 244, 246. 
 V. Johnson, 30 Tex. 499, § 1137. 
 V. Ladd, 49 Me. 73, § 1031. 
 V. McCullough, 23 Pa. St. 440, 
 §§ 7. 11, 29. 
 • V. School Dist. No. 4, 33 N. H. 
 118, § 1390. 
 V. Senier, 14 Wis. 380, §§ 745, 
 
 908. 946, 995. 
 V. Short. 6 Hare, 366, § 35. 
 V. Swabv, 1 Stark. 34, § 703. 
 V. W^all,-6Wall. 83, §11. 
 Wilty V. Hightower, 6 Sm. & M. 
 
 345, §§ 44, 278. 
 AVimberlv v. Collier, 33 Ga. 13, 
 
 § 4S0c. ' 
 Winborn v. Garrell. 3 Ired. Eq. 117, 
 
 §§ 357, 375. 
 Winchester v. Bait. R. Co, 4 Md. 
 
 331, §§ 683a, 688, 690. 
 AVindham Bank v. Norton, 33 Conn. 
 
 313, §§ 978, 1397. 
 Winnipisseogee Lake Co. v. 
 Younge, 40 N. H. 430, §§ 1408, 
 1410. 
 
 Winston v. Taylor, 38 Mo. 83. § 1084. 
 V. AVestfeldt, 33 Ala. 760, 
 g§ 309, 373. 
 Winter v. Landphere, 43 la. 471, 
 § 177. 
 V. Lord Anson, 1 S. & S. 434 ; 
 S. C. 3 Russ. 488, § 689. 
 AVinthrop v. Farrar, 11 Ajlen, 398, 
 
 § 1397. 
 AA' irtz V. Henry, 59 111. 109, § 1355. 
 Wise V. AVise, 3 Jones & L. 403. 
 
 §437. 
 Wiseman v. Hutchinson, 30 Ind. 
 40. § 307. - 
 V. AA'estland, 1 Young & J. 117, 
 §105. 
 AVisenberg v. City of Ajjpleton, 36 
 Wis. 56; 7 Am. Rep. 39, § 480gr. 
 AA^'itczinski v. Everman, 51 Miss. 
 
 841, § 373. 
 Withers v. Jenkins, 6 Rich. (S. C.) 
 
 123, § 143a. 
 AVithington v. Herring, 5 Bing. 
 
 443, t^ 656. 
 AA^itman v. AA^atrv, 31 AA^is. 638, 
 
 § 643. 
 AA'ittenbrock v. Bellmer, 63 Cal. 
 
 558, §§ 1203, 1209, 1317. 
 AA'itter"^ v. Dudlev, 43 Ala. 616, 
 
 §S 6oo, 307. 
 AAVlf V. Chalker, 31 Conn. 131, 
 
 § 4801 
 AAolfe V. Horton. 3 Cai. 86, § 1177. 
 AVollenweber v. Ketterlinus, 17 Pa. 
 
 St. 389, § loor. 
 AA^ood V. Bianchard, 19 111. 38, 
 § 1126. 
 V. Chapin, 13 N. Y. 509, § 97. 
 V. Crocker, 18 Wis. 345, §'§ 569. 
 
 570. 
 V. Fitz. 10 Mart. (O. S.) 196, 
 
 § 1413. 
 V. Fowler, 36 Kan. 683; 40 Am. 
 
 Rep. 330, § 1410. 
 V. Hickok, 3 AVend. 501, § 480o. 
 V. Krebbs, 30 Gratt. 708, §§ 65a, 
 
 307. 
 V. Partridge, 11 Mass. 488, 
 
 § 436. 
 
 V. AA^arren, 83 N. Y. 265, § 673. 
 
 V. AA'ood, 16 N. Y. 428, § 759. 
 
 V. Yeatman, 15 B. Mon. 270, 
 
 §403. 
 
 AA^oodbridge v. Perkins, 3 Day, 364, 
 
 § 436. 
 AVoodcock V. Houldsworth, 16 M. 
 
 & AV. 124, § 821. 
 AVoodUflfe V. Connor, 45 Miss. 553, 
 § 1368.
 
 Lxxxii 
 
 TABLE OF CASES CITED. 
 
 Woodman r. Thurston, 8 Cush. 157, 
 
 S 936. 
 Wood row V. O'Connor, 28 Vt. 776, 
 
 § 1405. 
 Woods V. Boots, 60 Mo. 546, § 659. 
 V. Devin, 13 111. 746, § 454. 
 V. Farmere, 7 Watts, 382, ^§ 7, 
 
 29, 273, 294, 297, 298. 300. 
 V. Monroe, 17 Mich. 238, § 1128. 
 V. Neeld, 44 Pa. St. 86, 5^ 919. 
 V. Sherman, 71 Pa. St. 100, 
 
 §§417, 421, 422. 
 V. AViider, 43 N. Y. 164, § 983. 
 V. Woods, 127 Mass. 141. § 87. 
 Woodson V. Eastman, 10 N. H. 359, 
 
 § 956. 
 Woodthorpe v. Lawes, 2 M. & W. 
 
 109, §§ 697. 720. 
 Woodward v. Chic. etc. R. Co. 21 
 Wis. 309, § 1411. 
 V. Foster, 18 Gratt. 213, § 87. 
 Woodworth v. Guzman, 1 Cal. 203. 
 §97. 
 V. Paige, 5 Ohio St. 70, §§11, 
 29. 
 Woolfolk V. Bank of America, 10 
 
 Bush, 504, §§ 80, 86. 
 Wooster v. Sherwood, 25 N. Y. 278, 
 
 §§ 67, 69. 
 Worcester Bank v. Cheney, 94 111. 
 430, § 1411. 
 V. Dorchester Bank, 10 Cush. 
 488, § 80. 
 Worden r. Nourse, 36 Vt. 7.:3, § 714. 
 Work V. Harper, 24 Miss. 517, 
 
 §§ 112, 125. 
 Workingmen's Bank v. Converse, 
 
 33 La. An. 963, § 1408. 
 Wormald v. Maitland, 35 L. J. Ch. 
 
 (N. S.) 69, § 246. 
 Wormley v. Wormley, 8 Wlieat. 
 
 421, §§ 15, 308. 
 Worsley v. Earl of Scarborough, 3 
 
 Atk. 392, §§ 263, 338, 348, 375. 
 Worthington v. Morgan, 16 Sim. 
 
 547, §§47, 65a. 
 Wright V. Bates, 13 Vt. 341, § 299. 
 V. Caldwell, 3 Mich. 51, § 454. 
 V. Dunham, 13 Mich. 414, 
 
 § 1411. 
 V. Hawkins, 28 Tex. 452, § 1404. 
 V. Jlarsh, 2 G. Greene, 109, 
 
 § 1160. 
 V. Simpson, 6 Ves. Jr. 714, § 418. 
 V. Whiting, 40 Bai'b. 240, 
 § 480»i. 
 
 Wright V. Wood, 23 Pa. St. 120, 
 
 §§285, 287, 290. 294. 
 Wright's jMortgage Trust, 16 Eq. 
 
 Cas. 41, § 111. 
 Wyatt V. Barwell, 19 Ves. 435, 
 § 108, 161. 
 V. Elam, 19 Ga. 335, § 225. 
 V. Stewart, 34 Ala. 716, § 231. 
 Wyld r. Pickford, 8 M. & W. 443, 
 
 §§ 542, 558. 
 Wynn v. Brooke, 5 Rawle, 106, 
 
 § 480HI. 
 Wythes v. Labouchere, 2 De G. & 
 J. 593, § 674. 
 
 Y. 
 
 Yancy v. Brown, 3 Sneed, 89, § 401. 
 Yeager v. Farwell, 13 Wall. 6, 
 
 § 938. 
 Yeatman v. Erwm, 5 La. 264, § 899. 
 Yoder v. Swope, 3 Bibb, 204, § 48. 
 York V. Craw-ford, 42 Miss. 508, 
 
 § 1374. 
 York Co. V. Cent. R. Co. 3 Wall. 
 
 107, § 553. 
 Young V. Commissioner, etc. 3 
 Nott & McC. 537, § 480gr. 
 V. Durgin. 15 Gray. 264, § 855. 
 V. Mackall, 4 Md. 362, § 1247. 
 V. Smith, 28 Mo. 65, § 592. 
 V. Tibbitts, 32 Wis. 79, §§ 499, 
 
 507. 
 r. Wilson, 27 N. Y. 351, §§ 149, 
 180. 
 Youngblood v. Vastine, 46 Mo. 239, 
 
 §§ 217, 222. 
 Youughause v. Fingar, 63 Barb, 
 
 299: 47 N. Y. 99, §1213. 
 Youngs V. Lee, 12 N. Y. 551, § 837. 
 r. Ransom. 31 Barb. 49, §1408, 
 Yount V. HoweU, 14 Cal. 465, 
 
 § 1413, 
 Yrisarri v. Clement, 3 Bing. 438, 
 § 1414. 
 
 z, 
 
 Zacharie v. Bowers, 3 Sm. & M. 641, 
 
 § 1031. 
 Zeigler v. Shomo, 78 Pa. St. 357, 
 
 §124. 
 Zollar V. Janvrm, 47 N. H. 324, 
 
 §483. 
 Zouch V. Willingale, 1 H. Blackst. 
 
 311, § 648.
 
 THE LAW OF NOTICE. 
 
 CHAPTER L 
 
 THE DIFFERENT KINDS OF NOTICE. 
 
 I. Actual Notice. 
 n. Constructive Notice. 
 
 I. Actual IS'otice. 
 
 § 1. Conflict of Authority as to What is Actual Notice. 
 
 2. Causes of the Apparent Conflict. 
 
 3. Distinction between Knowledge and Notice. 
 
 4. Same, with Illustration. 
 
 5. Different Kinds of Actual Notice. 
 
 6. Express Notice. 
 
 7. Direct Inforiliation. 
 
 8. Notice by ImpUcation. 
 
 9. Disregard of Notice Amounting to Fraud. 
 
 10. Circumstances Sufficient to Put Upon Inquiry.' 
 
 11. Knowledge Imputed to One Who Has the Means of Knowing. 
 
 12. Notice to Pvirchasers — When Actual. 
 
 13. Facts Sufficient to Excite Inquiry. 
 
 14. Possession Insufficient. 
 
 15. Title Papers. 
 
 16. Possession Held Sufficient. 
 
 17. Purchaser to Use Diligence. 
 
 18. Purchaser of Equitable Interest. 
 
 19. Vendor's Lien. 
 
 20. Purchaser from Mortgagor. 
 
 21. Notice of Trust. 
 
 22. Purchaser from Insolvent Trustee. 
 
 23. Suspicious Circumstances. 
 
 24. Inadequacy of Price. 
 
 25. Relationship between the Parties. 
 
 26. Notice of Partnership Interest. 
 
 27. Information Sufficient to Put Upon Inquiry. 
 
 28. Different Sources of Information. 
 
 1
 
 ii THE DIFFERENT KINDS OF NOTICE. 
 
 g 29. Vaguo Statements Disregarded. 
 
 30. Degree of Certainty Required. 
 
 31. Notice to an Agent. 
 
 32. Principal not Benefited by Agent's Fraud. 
 
 33. How Principal Affected by Notice to Agent. 
 
 34. Purchase after Fruitless Inquiry. 
 
 35. Information Allaying Suspicion. 
 
 36. The Effect of Reliance on Information from Doubtful Sources. 
 36a. A Practical View of the Distinction between Actual and Con- 
 structive Notice. 
 
 § 1. Conflict of Authority as to TVliat is Actual No- 
 tice. — The term here used to designate that l>ranch of 
 the Law of notice which does not rest upon mere legal in- 
 ference or presumption, and to distinguish it from what is 
 properly called constructive notice, would seem to be suffi- 
 ciently definitive of its own meaning to pass without further 
 gloss or comment. On its face, it would appear to import 
 its character so clearly and unmistakably, as not to depend 
 for elucidation upon judicial construction. And yet the de- 
 cisions upon this question are far from harmonious, even 
 in this country, and the contrariety of view between the 
 courts of Great Britain and the United States is equally 
 perplexing and unsatisfactory. 
 
 § 2. Causes of the Apparent Conflict.— The conflict of 
 authority is more apparent, however, tlian real. A care- 
 ful examination of some of the cases, in which the most 
 contradictory methods of classifying the kinds of notice 
 are considered, discloses the fact that much of the con- 
 fusion arises from attempts to give general definitions 
 which shall embrace just sufficient to be applicable to the 
 cases decided, in the same manner as they are applied to 
 precedent cases where the same ])rinciples are involved, A 
 term incapable of being disposed of in a brief definition 
 may be thus loosely explained and convey a meaning suffi- 
 ciently clear and distinct for the purposes of the case ; but 
 when there is an attempt to apply the definition thus 
 hastily constructed to other cases, it may express too much, 
 or too little.
 
 ACTUAL NOTICE. 3 
 
 § 3. Distinction Between Knowledge and Notice. — 
 
 Actual notice has been defined by declaring that it exists 
 '' when knowledge is actually brought home to the part}" 
 to be affected by it." ' This excludes all notice which 
 does not amount in fact, as well as theory, to actual hiowl- 
 edge. There can be no doubt that this definition is too nar- 
 row. If we are to be confined strictly to what would be 
 considered in metaphysics as actual knowledge, it will be 
 necessary to banish the term from our statutes, and the 
 courts will be compelled to abandon it as unfit for judicial 
 use. Scarcely any fact can be communicated in a manner 
 so direct as to exclude every possibility of doubt as to its 
 authenticity. Absolute knowledge, in the strict sense of the 
 term, imports so high a degree of certainty as to the mat- 
 ter to be established, that to require it in every instance 
 would render the adjustment of differences between man 
 and man, on an}^ just basis, practically impossible. Courts 
 must at best be content with such an approximation to per- 
 fect knowledge as the natural imperfections of human 
 recollection will afford. And if this term, like all others 
 employed to express the intention of legislative bodies, is 
 to be subjected to judicial construction, there seems no good 
 reason why it should not be construed in harmony with the 
 whole body of the law, and so as to effectuate the purposes 
 for which laws are intended.- 
 
 § 4. 8ame, with Illustration. — The courts have accord- 
 ingly refused to confine actual notice mthin the narrow 
 limits of the definition quoted above. Their departure from 
 the rule that renders actual notice and actual knowledge 
 s^^nonymous terms, is perhaps most conspicuous in cases 
 arising under the registry laws, where, in order to give pre- 
 
 1 Boxiv. Law Diet., 236; Story, Eq. Jur., g 399. 
 
 -As to what is knowledge, see Lloyd v. Banks, L. R., 3 Ch., 488-90; 
 Jolins V. Scott, 5 Md., 81; Brown v. Wells, 44 Ga., 573-5; Jones v. Lap- 
 ham, 15 Kans., 540-46; Virgin v. Wingfield, 54 Ga., 451-4; Blatchley 
 V. Osborn, 33 Conn., 226-33; Lawton v. Gordon, 37 Cal., 203-6; McKin- 
 ney v. Brights, 16 Pa. St., 399.
 
 4: THE DIFFERENT KINDS OF NOTICE. 
 
 cedence to a prior unrecorded instrument, over a subsequent 
 one affecting the same land, Ayhich has been duly re- 
 corded, it is necessary to prove that the subsequent pur- 
 chaser had actual notice of the prior unregistered instrument. 
 To follow the strict letter of Bouvier's definition, and bring 
 actual knowledge home to the subsequent purchaser, noth- 
 ing would suffice less certain than the presence of the party 
 to be affected when the prior instrument was executed, and 
 a careful inspection thereof by him with sufficient knowl- 
 edge of the premises described to enable him to identify 
 the property conveyed, as that of which he subsequently 
 becomes the purchaser. And even this might fail to fix 
 him with actual knowledge at the time of the subsequent 
 purchase. There would be nothing to prevent his interpos- 
 ing, as an excuse, his inability to understand the import of 
 the prior deed, or from declaring that the first transaction 
 had passed out of his recollection when the second took 
 place. This would leave the question of knowledge, after 
 all, to be determined by the evidence. The main fact 
 would depend upon inference to be drawn from collateral 
 circumstances. But where one purchased a piece of land of 
 which there was a former conveyance, the registration of 
 which was absolutely void on account of the absence of the 
 necessary certificates to the acknowledgment, and the sub- 
 sequent purchaser was informed by his attorney, employed 
 to investigate the title, that such void registry had been 
 made, it was held that this information was sufficient to put 
 him upon inquiry, and, taken in connection with other col- 
 lateral circumstances of a less significant character, would 
 warrant the conclusion that the subsequent purchaser had 
 actual notice of the prior deed.^ This was several removes 
 from actual knowledge. 
 
 § 5. Different Kinds of Actnal Notice.— There are two 
 classes of actual notice, which for convenience may be 
 designated as, 1. Express^ which includes all knowledge or 
 information coming to the party to be charged, of a degree 
 
 * Musgrove v. Bonser, 5 Oreg., 313 ; Hastings v. Cutler, 24 N. H., 481.
 
 ACTUAL NOTICE. 5 
 
 above that which depends upon collateral inference, or 
 which imposes upon him the further duty of inquuy ; and 
 2. Imrplied^ which imputes knowledge to the party because 
 he is shown to be conscious of having the means of knowl- 
 edge, though he does not use them. In other words, where 
 he chooses to remain voluntarily ignorant of the fact, or is 
 grossly negligent in not following up the inquiry which the 
 known facts suggest. 
 
 § 6. Express Notice. — The first of these classes is easily 
 and briefly disposed of. Not only would it embrace what 
 might fairly be called knowledge, from the fact that it was 
 derived from the highest evidence to be communicated by 
 the human senses ; but also that which is communicated by 
 direct and j)ositive information, either written or oral, from 
 persons who are personally cognizant of the fact commu- 
 nicated. 
 
 § 7. Direct Intormation. — It has been decided in sev- 
 eral cases where the information came from those whose 
 means of knowledge were of an inferior sort, that this notice, 
 to effectually bind subsequent purchasers, must come from 
 parties in interest ; ^ and in other cases it is decided that the 
 statements of third parties who are ignorant of the facts 
 will not amount to notice.- But it has been held, in a case 
 in which the inadequacy of the vague and uncertain con- 
 jectures of those unacquainted with the facts is fully recog- 
 nized, that where the communication comes from those who 
 speak advisedly of the matter, or from information in 
 their possession, of a definite character, the notice wiU be 
 
 1 Rogers r. Hoskins, 14 Ga., 166; Miller v. Cresson, 5 Watts & Serg., 
 284; Woods u, Farmere, 7 Watts, 382; Sug. on Vend., 755, and cases 
 cited; Earnhardt v. Greensliields, 9 Moo. P. C. C, 18; Jay v. Richard- 
 son, 30 Beav., 563; Greenslade n. Dare, 20 Beav., 284; Central R'y Co. 
 of Venezuela v. Kisch, 3 L. R. App. Ca., 112; Hamilton v. Royse, 2 Sch. 
 & Lef., 315. 
 
 2 Butler V. Stevens, 26 Me., 484; Wilson v. McCullough, 11 Harris, 440; 
 City Council v. Page, 1 Speers' Eq., 159; Lamont v. Stimson, 5 Wis., 
 443.
 
 6 THE 1>IF1-•EUE^•T KINDS OF NOTICE. 
 
 sufRcicnt to affect the conscience of the purchaser.' In some 
 of the cases cited, however, the notice obtained by informa- 
 tion is regarded as of that character which has the effect of 
 putting the purchaser upon inquiry. But when the informa- 
 tion comes directly from the party in possession of full 
 knowledge of the facts communicated, and is so full and 
 complete as to all the essential details of the matter as to 
 carr}^ conviction to an ordinary mind, it would properly be 
 classed as express notice, though it stopped far short of 
 what might be correctl}^ termed absolute knowledge."- 
 
 § 8. Notice by Implication. — Implied notice includes 
 neither positive knowledge, nor information so direct and 
 unequivocal as necessarily to carry conviction to the mind 
 of the person notified. Xeither does it belong to that class 
 which depends upon legal presumption. It is circumstan- 
 tial evidence, from which the jury, after estimating its 
 value, may infer notice. It differs from express notice for 
 the reason that the latter is supposed to be absolutely con- 
 vincing in itself, while the former merely suggests to the 
 mind of the person to be thereby affected, the existence of 
 the fact to which his attention is directed, and points out 
 the means by which he may obtain positive and convincing 
 information.' It differs, on the other hand, from constructive 
 notice, with which it is frequently confounded, and which it 
 greatly resembles, with respect to the character of the inf er- 
 
 1 Jackson v. Burgott, 10 Jolms., 457; Pearson v. Daniel, 2 Dev. & Bat. 
 Eq., 366; Doyle v. Teas, 4 Scam., 202; Mulliken v. Graham, 72 Pa. St., 
 484: Cui-tis v. Mundy, 3 Mete, 407; Cox v. Milner, 23 111., 476; Rupert 
 V. Mark, 15 id., 542; Ibbotson v. Rhodes, 2 Vern., 554; Peai'son v. Mor- 
 gan, 2 Bro. Ch., 353: Bridge v. Beadon, L. R., 3 Eq., 664; Lee v. How- 
 lett, 2 K. & J., 531; Burrowes v. Locke, 10 Ves., 470; SUm v. Ci-oucher, 
 1 De G., F. & J., 518; Barry v. Croskey, 2 J. & H., 21. 
 
 ^MnsgTove v. Bonser, 5 Oreg., 313; Hastings v. Cutler, 24 N. H., 481 ; 
 Barnes v. McCUnton, 3 Pa. , 67. 
 
 sParnsworth v. Cliilds, 4 Mass., 637; Roberts v. Anderson, 3 Jolms. 
 Ch., 371 ; Pitney v. Leonard, 1 Paige, 461 ; Bingamore v. Hyatt, 1 Smed 
 &Mar. Ch.,437.
 
 ACTUAL NOTICE. i 
 
 ence upon wMch it rests; constructive notice being the 
 creature of positive la^Y, or resting upon strictly legal infer- 
 ence/ while implied notice arises from inference oifactr 
 
 § 9. Disregard of Notice Amoimtiug to Fraud.— An 
 example of these distinctions, as drawn by the courts, is 
 furnished by the holding in a case between a party claiming 
 under a prior* unregistered deed and one claiming under a 
 subsequent registered conveyance,^ similar to that already 
 cited.* There the court decided, under a statute requiring 
 actual notice to charge subsequent parties with notice of 
 prior unrecorded instruments or equitable claims, that the 
 party claiming under the unrecorded deed was not required 
 to prove that the subsequent purchaser had certain knowl- 
 edge of the prior conversance, such as he would have if he 
 had seen the first deed executed and dehvered to the grantee. 
 It was held that something less than positive personal 
 knowledge of the fact of the conveyance would be sufficient 
 to constitute "actual notice," within the true intent and 
 meaning of tlie statute. The test of suificiency applied to 
 the notice in this case was that it " should be so express and 
 satisfactory to the party as that it would be fraud in him 
 subsequently to purchase, attach or levy upon the land, to 
 the prejudice of the first grantee." 
 
 § 10. Circumstances Sufficient to Put Upon Inquiry.— 
 Wiiere the matter of which express notice is proved is 
 merely a circumstance collateral to the main fact with 
 notice of which it is sought to charge the party, the col- 
 
 ' Plumb t'. Fluitt, 2 Anstr., 433; Davis v. Bigler, 63 Pa. St., 241; Las- 
 selle V. Burnett, 1 Blackf., 150; Cotton v. Hart, 1 A. K. Marsh., 56; 
 Hinde v. Vattier, 1 McLean, 110. 
 
 2 Williamson v. Brown, 15 N. Y,, 354; Heermans v. Ellsworth, 64 N. 
 Y., 159; Hoyt v. Sheldon, 3 Bosw., 367; Massie v. Greenhow, 2 Pat. & 
 Heath., 355. Mere notice of execution of deed not notice of contents. 
 Mocatta v. Murgatroyd, 1 P. Wms., 393; Beckett v. Cardley, 1 Bro. Ch., 
 353; RancUfle v. Parkyns, 6 Dow., 149; Lloyd v. Banks, L. R., 3Ch.," 
 488, 490. 
 
 3 Curtis V. Mundy, 3 Mete, 405. 
 « Ante, § 4, note.
 
 8 THE DIFFERENT KINDS OF NOTICE. 
 
 lateral circumstance, if sufficient to put hiiii upon inquiry 
 leading- to the truth, will, in general, be regarded as good 
 notice of the ultimate fact to be established.^ iVll the cases, 
 however, where this doctrine is maintained do not go the 
 length of holding that facts and circumstances sufficient to 
 put the party to be affected upon inquiry would amount to 
 actual notice of such fact ; nor even evidence from which 
 the jury might infer positive knowledge or express notice; 
 but that it would amount to cotistruotive notice; while others 
 declare quite plainly that proof of such circumstances war- 
 rants the inference of actual notice? This difference does 
 not necessarily indicate a conflict between the authorities, 
 but merel}" sliows that the same circumstances from which 
 the jury might infer, as matter of fact, that express notice 
 had been given, would serve as a foundation for the legal 
 presumption which the party to be charged would not be 
 
 1 McDonald v. Gaunt, 3 Pac. Rep., 871; Philips?;. Reitz, 16 Kan., 396; 
 Baker v. BUss, 39 N. Y., 70; Green v. Slayter, 4 Johns. Ch., 38; McDan- 
 iels V. Flower Brook Manuf'g Co., 22 Vt., 274; McGehee v. Giudi-at, 20 
 Ala., 95 ; Center v. P. & M. Bank, 22 Ala., 743 ; Maybin v. Kuby, 4 Rich. 
 Eq., 105; Raritan Water Power Co. v. Veghte, 21 N. J. Eq., 463; Hoy 
 V. Bramhall, 19 N. J. Eq., 563; Danforth v. Dart., 4 Duer, 101; Parker 
 V. Kane, 4 Wis., 1; Sterry v. Arden, 1 John. Ch., 261; Tuttle v. Jack- 
 son, 6 Wend., 213; Peters v. Goodi-ich, 3 Conn., 146; Pendleton v. Fay, 
 2 Paige, 202; BlaisdeU v. Stevens, 16 Vt., 179; Stafford v. Ballou, 17 Vt. 
 329; Vattierf. Hmde, 7 Pet., 252; Ringgold v. Waggoner, 14 Ark., 69 
 Swarthout v. Curtis, 5 N. Y., 301; RandaU v. Silverthorne, 4 Perm. St. 
 173; Parke v. Chadwick, 8 W. «& S., 96; Sergeant v. IngersoU, 7 Penn 
 St., 340; S. C, 15 id., 343; Maitland v. Backhouse, 17 L. J. Ch., 121 
 Espy V. Lake, 10 Ha., 260; Dawson v. Pi-mce, 2 D. & J., 41; Dettmar v. 
 Metropolitan, etc.. Bank, 1 H. & M., 641; Mangles v. Dixon, 3 H. L. 
 702; Owen v. Homan, 4 H. L., 997; Perry v. HoU, 2 De G., F. & J., 38 
 Broadbent v. Barlow, 3 De G., F. & J., 570. 
 
 ^HuU V. Noble, 40 Me., 459; Buttrick v. Holden, 13 Met., 355; Buck v. 
 Paine, 50 ]Miss., 648; Canton v. City of Portland, 4 Oreg., 339; Cui-tis 
 V. Blair, 4 Cush., 309; Epley v. Witherow, 7 Watts, 163; Brinknaan v. 
 Jones, 44 Wis., 498; Lainbert v. Newman, 56 Ala., 623; Helms v. Chad- 
 bourne, 45 Wis., 60; Shepardson v. Stevens, 71 111., 646; Reynolds v. 
 Ruckman, 35 I\Iich., 80; Munroe v. Eastman, 31 IMich., 283; Eck v. 
 Hatchers, 58 Mo., 235; Barker v. Foy, 43 Miss., 260; Wailes v. Cooper, 
 24 Miss., 208.
 
 ACTUAL NOTICE. 9 
 
 permitted to deny, where constructive notice would be 
 effectual.^ 
 
 §11. Knowledge Imputed to One Who Has the Means 
 of Knowing. — It is easy to understand how one may 
 be conchided from denying actual notice when positive 
 information has been traced directly to him. It is not 
 necessary to invoke the doctrine of constructive notice in 
 order to justify holding that he will not be heard to deny 
 that he understood the import of what was clearly and 
 plainly communicated. Whether the notice has been com- 
 municated cannot be determined by the standard of the 
 recipient's stupidity or heedlessness. For the reason, there- 
 fore, that ignorance of an important fact which has been 
 placed within the easy reach of a party imports either 
 fraud or gross negligence on his part, the law will never 
 inquire further than is necessary to show the giving of the 
 notice by such means as are sufficient to convey intelligence 
 from one human being to another. It has accordingly been 
 held that, " When a party having knowledge of such facts 
 as would lead any honest man, using ordinary caution, to 
 make further inquiries, does not make, but, on the contrary, 
 studiously avoids making, such obvious inquiries, he must 
 be taken to have notice of these facts, which, if he had 
 used such ordinary diligence, he would readily have ascer- 
 tained." 2 
 
 1 See post, § 37 et seq. For examples of circtimstances held insuffi- 
 cient to put a purchaser upon inquuy, see Cathaj^ v. Sydenham, 2 Brown, 
 Ch., 391; Smith v. Reese River Co., L. R., 2 Eq., 264. In the latter 
 case it is held that one i-elying upon statements of duectors is not put 
 upon inquhy by the statement that further information is to be had at 
 the office of the company. 
 
 2 Baron Alderson, in Whitbread v. Jordan, 1 You. & Coll. Exch., 303; 
 Hankinson v. Barbour, 29 III., 80; Lewis v. Bradford, 10 Watts, 67; 
 Williamson v. Brown, 15 N. Y., 354; Fiske v. Potter, 2 Keyes, 64; Ohver 
 V. Piatt, 3 How., 333; Jenkins v. Eldridge, 3 Story, 181; Wilson v. Wall, 
 6 Wall., 83; Briggs v. Taylor, 28 Vt., 180; Woodworth v. Paige, 5 Ohio 
 St., 70; BlaisdeU-y. Stevens, 16 Vt., 179; Booth v. Barnum, 9 Ct., 286; 
 Jones V. Smith, 1 Ha., 43; West v. Reid, 2 Ha., 249; Owen v. Homan, 
 4 H. L., 997; Jones v. Williams, 24 Beav., 47; Tarrant v. Blanchard, 1
 
 10 THE DIFFERENT KINDS OF NOTICE. 
 
 § 1 2. Implied Notice to Purchasers — When Actual. — 
 
 A familiar class of cases in Avliicli this doctrine is ap- 
 plied is that to which the examples already furnished be- 
 long, where the controversy lies between purchasers of the 
 same piece of real estate, and the first purchaser holds 
 under an unrecorded conveyance of which it is sought to 
 charge the subsequent purchasers -with notice.^ In a case of 
 this kind, arising under the provisions of a statute requir- 
 ing actual notice of unrecorded instruments, in order to 
 affect subsequent purchasers for value, and where the 
 spreading of an instrument upon the records, wliich, for the 
 want of certain formalities, was not entitled to be recorded, 
 did not amount to constructive notice under the statute, it 
 was held by Judge Bliss that, " If the deed was actually 
 put upon record, although not so acknowledged that its rec- 
 ord would be constructive notice, and if the party saw that 
 record, it would be very strong, if not conclusive, evidence 
 of the actual notice required by statute. The object of the 
 registry act is to protect innocent purchasers, and no subse- 
 quent purchaser can be innocent who knew of a previous 
 
 DeG., J. & S., 107; Mayor, etc., v. Mun-ay, 7 De G., M. & G., 497; 
 Gen'l Steam, etc., Co. v. Rolt, 6 C. B., N. S., 550. 
 
 The means of knowledge which will warrant the inference of notice 
 must be such as could be rendered available by the exercise of ordinaiy 
 prudence and diligence. The knowledge must be practically within the 
 reach of a reasonable man. The person is not to be charged with no- 
 tice for failure to exercise extreme or extraordinary caution. Lament 
 V. Stimsou, 5 Wis., 443; Colquitt v. Thomas, 8 Ga., 258; "VYiison v. Mc- 
 Cullough, 23 Pa. St., 440; Hill r. Simpson, 7 Yes., 153; Ware v. Egmont, 
 4 DeG., 31. & G., 460; Greenslade v. Dare, 20 Beav., 284; Dodds r. 
 HUls, 2 H. & M., 424; Stephenson v. Rosse, 5 Irish Ch., 401 ; Jackson ?-. 
 Rowe, 2 Sun. & St., 472; Whitfield v. Faussett, 1 Yes. Sr., 387; Hine 
 V. Dodd, 2 Atk., 275; Montefiore v. Browne, 7 H. L. Cas., 241: Tildesley 
 V. Lodge, 3 Smale & G., 543. Nevertheless it has been frequently held 
 that one contemplating a purchase of real estate, being put upon in- 
 quuy, is not exonerated by merely making an examination of the rec- 
 ords, and finding no title in conflict with that of his grantor. Shotwcll 
 V. Harrison, 30 Mich., 179; Pringle v. Dunn, 37 Wis., 449; Brinkman r. 
 Jones, 44 Wis., 498; Littleton v. Giddings, 47 Tex., 109; post, % 270. 
 
 ^Ante, §§ 4, 9.
 
 ACTCAL XOTICE. 11 
 
 conveyance, wlietlier it be so acknowledged as to authorize 
 its record or not. And it would be absurd to say that an 
 exhibition to him of a copy of such conveyance, made 
 under circumstances that would presume it to be a genuine 
 copy, would be no evidence of such notice." ^ The learned 
 judge would probably have gone furtlier, had the case re- 
 qmred it, and laid down the doctrine that one Avho had seen 
 a copy of the prior deed, under such circumstances, would 
 be in possession of such notice as to render fraudulent a sub- 
 sequent purchase by him of the property thereby conveyed. 
 
 § 13. Sufflcieucy of Certain Facts to Excite Inquiry. — 
 There is a decided conflict of authority, both Enghsh 
 and American, concerning some particular facts, whether 
 they are sufficient to put a purchaser upon inquhy, so as to 
 charge him with knowledge of a prior conveyance. This 
 conflict cannot be reconciled, nor can anything hke a 
 general rule be deduced therefrom, which would not be sub- 
 ject to a midtitude of exceptions, for the reason that, in 
 estimating the effect upon the conscience of the purchaser 
 of particular circumstances brought to his knowledge prior 
 to the purchase, there are doubtless many considerations, 
 purely local in their character, which tend to affect the value 
 of such circumstances as evidence of notice.^ 
 
 Thus, on the purchase of one of two adjoining estates, 
 both of which belonged to the same owner, it was held 
 that the binding covenants entered into with the mort- 
 gagee of the estate not ptn-chased Avould not give notice of 
 the expenditures made on both.-' So where the title deeds 
 
 I Musick V. Barney, 49 Mo., 458; Maupin v. Emmons, 47 id., 304, 30G, 
 307; Pringle v. Dunn, 37 Wis., 449, 461, 464; Partridge v. Smith, 2 Biss. , 
 183, 185, 186; Gilbert u/ Jess, 31 Wis., 110; Hastings v. Cutler, 24 N. H., 
 431; Musgrove v. Bonser, 5 Oreg., 313. Contra, Kerns v. Swope, 2 
 Watts, 75. 
 
 2Lo\viy V. Brown, 1 Cold., 456; Doyle r. Teas, 5 111., 202; Colyer v. 
 Finch, 5 H. L., 905; Herrick v. Attwood, 2 De G. & J., 21. A man spe- 
 cially du-ected to another for information is bound to inquii-e of such 
 person. Wason v. Wareing, 15 Bear., 151. 
 
 *narrymanv. CoDins, 18 Beav., 19.
 
 12 THE DIFFEKENT KINDS OF XOTICE. 
 
 to the premises were left in the possession of the vendor's 
 solicitor, though the muniments of title are usually held by 
 the owner, or one claiming a hen, possession under these 
 circumstances was held not to give notice of any lien for 
 which the deeds were held b}'' the sohcitor, as his possession 
 was consistent with the rights of the vendor.^ So also, the 
 fact that one has witnessed the signature of a deed, was 
 decided not to be notice to the Avitness of the contents of 
 the instrument.^ And though knowledge of a avlLI is gen- 
 erally held to charge one Avith notice of the devises and be- 
 quests tlierein contained, it is decided that such knowledge 
 is insufficient to impart notice of the particular estates of 
 the testator, when the will devises all the estates generall3\^ 
 
 § 1 4. Possession lusiifflcient. — In Massachusetts, where 
 the statute requires actual notice to charge purchasers, 
 it is held that proof of open and notorious occupation 
 and improvement would not be such evidence of ownership 
 in the occupant as to make it the duty of any one cognizant 
 of such facts to make further inquiry before purchas- 
 ing.* 
 
 And in Lamb v. Pierce,' it is held not only that such open 
 and notorious possession and improvement would not be 
 sufficient, but the court goes further, and declares that 
 proof of facts which would reasonably put a purchaser upon 
 inquiry would not fulfil the statutory requirements. This, 
 however, goes so far beyond the most recent authority cited 
 in support of the doctrine therein declared,^ that the case 
 may be regarded as unsupported by authority even in that 
 state, so far as it goes beyond excluding possession as evi- 
 dence of notice. 
 
 iBogan V. Williams, 3 Younge & J., 150. 
 
 ^Mocattav. Murgatroyd, 1 P. Wms., 393; Eancliffe v. Parkyns, 6 Dow., 
 149; Beckett v. Cai-dley, 1 Bro. Ch., 353. 
 
 sRancliffe v. Parkyns, 6 Dow., 149. 
 
 ■* Pomi-oy ?7. Stevens, 11 Mete, 244; Parker v. Osgood, 8 AUen, 487; 
 ])ooley V. Wolcott, 4 Allen, 406 ; Sibley v. Lefiangwell, 8 Allen, 584. 
 
 5113 Mass., 72. 
 
 6 White V. Foster, 102 Mass., 375.
 
 ACTUAL NOTICE. 13 
 
 § 15. Title Papers. — The case of White v. Foster, re- 
 ferred to above,' was where there was an equitable chiim- 
 ant to an interest in real estate, who had not placed his 
 claim within the protection of the registry laws. The res- 
 ervation of this interest was mentioned in a mortg-affe, and 
 the property subsequently conveyed to a purchaser who had 
 no other notice of the interest reserved than the fact that it 
 was mentioned in a mortgage subject to which he purchased. 
 This was held to be actual notice, and the court, in constru- 
 ing the statute, declared that in order to show actual notice 
 it was not necessary to prove an actual exhibition of tlie 
 deed. This must be taken as an admission of the efficacy 
 of facts which put one upon inquiry ; for it cannot be con- 
 tended that the subsequent purchaser in this instance was 
 expressly notified of the outstanding equity, by the recitals 
 in an instrument affecting his title, merely because he had 
 notice of such instrument. The only ground upon which 
 he could be charged with actual notice was that, having 
 notice of the mortgage, ordinary prudence dictated that he 
 should examine it with a view to gaining a knowledge of 
 its contents.- 
 
 § 16. Possession Held Sufficient Evidence of Actual 
 Notice. — The statute of the state of Missouri provides 
 that instruments affecting the title to real estate shall 
 not be valid, except between the parties, and such as have 
 actual notice thereof, until deposited with the recorder for 
 
 ' Supra, § 14, n. 3. 
 
 2Wormley V. Wormley, 8 Wheat., 431; Oliver v. Piatt, 3 How., 333; 
 Neale v. Hagtlu-op, 3 Bland., 551 ; Christmas v. Mtchell, 3 Ii-ed. Eq., 535 ; 
 Rogers V. Jones, 8 N. H., 264; Griffiths. Griffith, 1 Hoff. Ch., 153; Mason 
 V. Paine, Walker's Ch., 453; Hackwith v. Damron, 1 Monr., 235; Van 
 Dorenv. Robinson, 16 N. J. Eq. 256; Rutter v. BaiT, 4 Ohio, 446; Gordon 
 V. Sizer, 39 Miss., 805; Surman v. Barlow, 2 Edm., 167; Sheldon v. Cox, 
 2 Edni., 224; Taylor v. Baker, 5 Price, 306; Moore v. Bennett, 2 Ch. Cas., 
 246; Bath & Montague's Case, 3 Ch. Cas., 110; Palmer v. Wheeler, 2 
 Ball. & B., 18; Malpas v. Acldand, 3 Russ., 273; Roddy r. Williams, 8 
 Jones & L., 1 ; Hope v. Liddell, 21 Beav., 183 ; Cox v. Coventon, 31 Beav., 
 378; Steedman v. Poole, 16 L. J. Ch., 349; Clements v. WeUes, L. R., 1 
 Eq., 200; Tanner v. Florence, 1 Ch. Cas., 259.
 
 14 THE DIFFEKENT KINDS OF NOTICE. 
 
 record.' This language of the statute is construed by the 
 supreme court of that state to mean that any fact from 
 which a jury may infer actual notice would be admissible 
 in evidence to establish that fact. This species of notice is 
 defined as being either knowledge, or consciousness of hav- 
 ing the means of knowledge, although he may not use 
 them ; ^ and open, notorious possession, under claim of 
 ownership, by the party holding adversel}^ to the subse- 
 quent purchaser, is regarded as sufficient to place the means 
 of knowledge within his reach, and from such possession 
 the jury might infer that the subsequent purchase was 
 made mth either full knowledge or voluntary ignorance of 
 the adverse claim.' The erection of visible structures upon 
 land is sufficient to give notice of the right or claim of 
 right under Avhich such structm-es are erected, so far, at 
 least, as to make it the duty of any one contemplating a 
 purchase of the land to inquire concerning the claim.* 
 
 § 1 7. Purchasers to Tse Diligence. — In Cambridge Val- 
 ley Bank v. Delano,'^ the doctrine of actual notice by im- 
 plication from circumstances is very comprehensively and 
 fully set forth, as between adverse claimants to real estate. 
 The most conspicuous fact in this case was the recital in an- 
 tecedent title papers of the grantor. It was there held that 
 " where a purcliaser has knowledge of any fact sufficient 
 to put a prudent man upon an inquiry, which, if prosecuted 
 with ordinary diligence, would lead to actual notice of some 
 right or title in conflict with that he is about to purchase, it 
 
 iWag. Stat., 277, §26. 
 
 2 Speck V. Riggin, 40 Mo., 405: Mauijin v. Emmons, 47 Mo., 304; Rob- 
 erts V. Mosley, 64 Mo., 507. 
 
 ^Vaughan v. Tracy, 22 Mo., 415. See post, ch. IV; see, also, Parker 
 V. Kane, 4 Wis., 1, where notorious acts of ownersliip are held to 
 amount to notice. Eeed v. Gannon, 50 N. Y., 345. 
 
 ^Raritan, etc., Co. v. Veghte, 21 N. J. Eq., 463; Randall v. Silver- 
 thorne, 4 Pa. St., 173; Hoy v. BramhaU, 19 N. J. Eq., 563; Hervey v. 
 Smith, 22 Beav., 299; Paul v. Connersville, etc., R. Co., 51 Ind., 527; 
 post, § 273 et seq. 
 
 5 48N. Y., 326.
 
 ACTUAL NOTICE. 15 
 
 is liis duty to make the inqiiiiy, and if lie does not make 
 it, he is guilty of bad faith or negligence to such an extent 
 that the law will presume that he made it, aijd will charge 
 hmi with the actual notice he would have received if he 
 had made it." The same doctrine is also supported by 
 numerous authorities in this and other states.' 
 
 §18. Purchaser of Equitable Interest. — Where one 
 purchases, with notice of the fact that the legal title to the 
 property is in some one else than his grantor, he is thereby 
 put upon inquiry as to the nature and extent of his grant- 
 or's title, and if such inquiries would lead to knowledge of 
 circumstances affecting the title, he will be bound as by 
 actual notice of such facts.^ 
 
 § 19. Teiitlor's Lien. — So when the adverse claim is 
 a vendor's lien for the unpaid purchase money, notice to 
 the purchaser that the title passed "without actual payment 
 of the price agreed upon, although the deed contains an ac- 
 knowledgment of full payment, will be sufficient to put 
 him upon inquiry as to that fact, and failing to exercise rea- 
 sonable diligence to ascertain whether there has been a sub- 
 sequent payment, he will be charged with actual notice of 
 what remains unpaid, and will hold the title subject to the 
 prior hen.* 
 
 § 30. Purchaser from Mortgagee. — So also the fact that 
 a mortgage appears to have been discharged by a person 
 other than the mortgagee has been held sufficient to excite 
 inquiry as to the reason of the unusual circumstance, and 
 the purchaser, with knowledge of such fact, would be bound 
 
 iMajsor, etc., v. Williams, 6 Md., 235; Price v. McDonald, 1 Md., 403; 
 Leiman's Esfate, 32 Md., 225; BlatcWey v. Osborn, 33 Corni., 226; Nute 
 V. Nute, 41 N. H., 60; Wan-en v. Sweet, 31 N. H., 332; Maupin v. Em- 
 mons, 47 Mo., 304; Nelson v. Sims, 1 Cush. (Miss.), 383; EusseU v. Pet- 
 ree, 10 B. Mon., 184; Howard Ins. Co. v. Halsey, 4 Sandf., 565; S, C, 
 8 N. Y., 271 ; siij)m, § 11, note; post, § 307 et seq. 
 
 2 Sergeant v. IngersoU, 7 Penn. St., 340; S. C, 15 Penn. St., 343; 
 Bishop, etc., v. A Copyholder, Freem. Ch., 137. 
 
 3 Parke v. Chad wick, 8 W. & S., 96; Frail v. ElUs, 16 Beav., 350.
 
 16 THE DIFFERENT KINDS OF NOTICE, 
 
 by knowledge of all such, further facts, affecting the title to 
 the property, as the inquiry would disclose.^ 
 
 §21. Notice of Trust. — Where the purchaser had knowl- 
 edge that the property had been purchased by persons 
 who were executors of a will, and mentioned as such in 
 one of the deeds forming a link in the chain of title, to- 
 gether with, knowledge that such executors held in trust a 
 large estate with unlimited authority to purchase real es- 
 tate, this was held sufficient to charge the purchaser with 
 notice of the fact that the property purchased was held 
 subject to the trust, upon the principle that, being possessed 
 of knowledge of distinct facts affecting the title of his con- 
 templated purchase, he could not close his eyes and screen 
 himself under the plea of ignorance of other facts con- 
 nected with those already known to him. Good faith ren- 
 dered it incumbent upon him to make reasonable inquiry, 
 and he took the title charged with the trust of which such 
 inquiry would have informed him ; - and where the land had 
 been contracted for by a vendee who had paid part of the 
 purchase money the vendor held the land charged with a 
 trust, and a subsequent purchaser with notice would hold 
 subject to the first vendee's lien.* 
 
 § 22. Purchaser fi'om lusolvent Trustee. — Knowledge 
 of the insolvency of a trustee from whom a conveyance 
 is received in satisfaction of the personal indebtedness of 
 such trustee would be sufficient to put the pm-chaser upon 
 inquiry as to the hona fides of the transaction, and in equity 
 he would be considered as having notice.* 
 
 § 23. Suspicious Circumstances — Inadequacy of Price. 
 Inadequacy of the price paid, under circumstances other 
 
 iSwarthout v. Curtis, 5 N. Y., 301. 
 
 -'BlaisdeU v. Stevens, 16 Vt., 179. 
 
 s Stewart v. Wood, 63 Mo., 252; Cavagnaro v. Don, 63 Cal., 227. 
 
 * Pendleton v. Fay, 2 Paige, 202. Where time and circumstances of 
 a sale by trustees suggest a breach of trust, the purchaser is put upon 
 inquiry. Strougliill v. Anstey, 1 De G., M, & G., 635.
 
 ACTUAL NOTICE. IT 
 
 wise of a suspicions character, may be sufficient to excite 
 inquiry. When there is a strong incentive to pass the 
 title to one who will be in a situation to assume the charac- 
 ter of an innocent purchaser, the gross disproportion of the 
 amount paid to the real value would be such a badge of 
 fraud as to inform the purchaser so loudly of the intended 
 wrong that he will not be permitted to shelter himself behind 
 th^e fact that he did not linoxo of the defect in his grantor's 
 title. As, where property worth two or three thousand 
 dollars was conveyed for a consideration of $100 to one 
 whom the grantor regarded as "friendly" to himself, and 
 there was no other explanation of the unequal transaction 
 offered by the parties thereto than the friendly relations 
 subsisting between the grantor and grantee, while it was 
 in evidence that the property in the hands of the grantor 
 was subject to an adverse equitable interest, the purchaser 
 was charged with notice.^ 
 
 §24. Mere Inadequacy of Price. — So, where a bond 
 and mortgage for $8,000, upon which $2,000 of the prin- 
 cipal and all the accrued interest had been paid, was trans- 
 ferred for only three-fourths its actual value, and the 
 consideration was received in unsalable goods at forty per 
 cent, above their market price, with no intention of using 
 or disposing of them in the regular way, but with a view 
 to sending them to an auction store, these circumstances 
 were held sufficient to put the purchaser upon inquiry as to 
 the ownership of the security.^ But mere inadequacy of 
 price realized at a sheriff's, or other involuntary sale, would 
 not tend to put the purchaser upon inquiry, for reasons too 
 obvious to require comment.' 
 
 §25. Relationship between the Parties. — The fact 
 that the grantor was the father of the grantee was held to 
 be evidence of the son's knowledge of a trust subject to 
 
 iHoppin V. Doty, 25 Wis., 578. 
 
 2peabody v, Fenton, 3 Barb. Ch., 451; Eck v. Hatcher, 58 Mo., 235. 
 'Stockett V. Taylor, 8 Md. Ch. Dec, 537; Beadles v. Miller, 9 Bush, 
 405. 
 
 2
 
 IS THE DIFFERENT KINDS OF NOTICE, 
 
 wliicli the land was held by the father, and properly went 
 to the jnry to enable them to determine that fact.^ And 
 where an insolvent debtor, pressed by his creditors, conveyed 
 absolutely all his jjroperty to his son, a young man without 
 property, receiving neither payment nor security, such cir- 
 cumstances were held to proclaim the bad faith of the trans- 
 action in such unmistakable terms, that a purchaser from the 
 son, with notice of these facts, could not hold against a pur- 
 chaser at a sale under an execution against the father.- 
 
 §26. Notice of Partnership Interest. — It has been 
 held that iiotice that the propert}" belongs to a partnership 
 is sufficient to charge it in the hands of the purchaser with 
 partnersliip debts.' But it has been elsewhere decided that 
 a purchaser from a surviving partner who held the property 
 in his individual name, would not, by mere knowledge that 
 it was partnership property, be charged with notice of the 
 trust under which his grantor held, so as to render the prop- 
 erty in his hands subject to the partnershij) debts.^ In this 
 latter case, however, it was held that the manner of the 
 transfer being secret, and the purchaser knowing that the 
 lirm were greatly in debt, would suffice to put such pur- 
 chaser upon inquiry.^ 
 
 § 27. luforniatiou Siifflcieut to Put Upon Inquiry.— 
 Notice by verbal or written information has elsewhere 
 
 iTrefts V. King, 18 Perm. St., 157; Spurlock v. Sullivan, 36 Tex., 511; 
 Clark V. Drake, 63 Mo., 354. The fact that plaintiff was related to the 
 trustee, together with his knowledge of defendant's j)ossession, and the 
 inadequacy of the price paid, was held sufficient to warrant the inference 
 that plaintiff had actual notice of a trust in favor of the defendant. 
 Roberts v. Mosley, 64 Mo., 507; Pliillips v. Bank of Lewiston, 18 Pa. St., 
 394; DuBois v. Barker, 4 Hun, 80. See Hei-vey v. Smith, 22 Beav., 
 299; Davies v. Sear, L. R., 7 Eq., 427; Paul v. Connersville, etc., R. Co., 
 51 Ind., 527. 
 
 2 Ringgold V. Waggoner, 14 Ark., 69. 
 
 ^Hoxie V. Carr, 1 Sumn,, 173; Sigourney v. Munn, 7 Conn., 324, 
 
 ^TilUnghast v. Champlin, 4 R. I., 173-4, 215; Reynolds v. Ruckman, 35 
 Mich., 80. 
 
 sFlagg V. Mann, 2 Sumn., 486; Du Bois v. Barker, 4 Hun, 80.
 
 ACTUAL NOTICE. 19 
 
 been considered, for the most part, as express notice ;^ but, 
 as there intimated, in many instances the information is 
 regarded, on account of the source from which it comes, as 
 merely sufficient to put the purchaser upon inquiry, and in 
 some cases would be so vague and uncertain as not even to 
 amount to that. However, where information of the exist- 
 ence of a patent was received through neighborhood report, 
 and from the declaration of a stranger that he had seen it, 
 this was held sufficiently certain to be taken in connection 
 vrith knowledge of possession and cultivation by tenants 
 of the patentee, as evidence of notice, and would bar the 
 laying a warrant upon the land as waste and unappropri- 
 ated.2 And where a mortgagee, who had lost the instru- 
 ment before having it recorded, informed the purchaser 
 after the notes so secured had been transferred to another, 
 this information was held sufficient to put the party upon 
 inquiry before purchasing, and, failing to inquire, the mort- 
 gaged property was bound in his hands for the debt.' So, 
 where the communication came from a stranger who had 
 no connection whatever with the title, the notice was held 
 sufficient to charge the purchaser.^ 
 
 §28. Ditfereiit Sources of Information. — The char- 
 acter of the person giving unasked advice of this kind is 
 always to be taken into consideration in estimating the 
 value of the information. His relations and intimacy with 
 the parties from whom direct information might naturally 
 be exjDected to come ; his connection with the transaction, 
 and his facilities for obtaining knowledge, as well as the 
 degree of knowledge he displays, should all be considered be- 
 fore the party contemplating a purchase can venture with 
 safety to utterly disregard his advice, or act upon it with- 
 out further inquiry. J^otice coming from a friend or rela- 
 
 1 Ante, %Q et seq. 
 
 2 Roberts v. Stanton, 3 Munf., 129. • . « 
 
 ( 
 
 3 Rowan v. Adams, 1 Sni. & M. Ch. , 45. 
 
 ^Currens v. Hart, Hardin, 37; Erickson v. Rafferty, 79 HI., 209.
 
 20 THE DIFFEEENT KINDS OF NOTICE. 
 
 tion of the adverse claimant has been held sufficient.' 
 While the vague reports of mere strangers have been held 
 not to affect the conscience of the purchaser.- 
 
 §29. Yague Statements Disregarded. — Whatever be 
 the source of the information, to be effectual as notice, 
 either express or implied, it must amount to something 
 more than a vague statement that the vendor's title is sub- 
 ject to an equity,'' or that grantor is unable to make a good 
 title.'* Or, coming even from the guardian of the equitable 
 claimant, informing the party that he will purchase at his 
 peril.-^ Such wild statements as these could not put the 
 party upon inquiry, for the reason that they do not tend to 
 direct his attention to any specific source of knowledge ; and 
 it is contrary to reason and common sense, that one should 
 be prevented from purchasing by what he might fairly re- 
 gard as the idle gossip of busy-bodies.'' But the vice of 
 such information consists quite as largely in the uncertainty 
 and vagueness of its statements as in the questionable 
 som^ce from which it proceeds. In general, it is essential 
 that the communication shall have some connection with 
 the subject of intended purchase. Notice of this kind has 
 
 1 Ripple V. Ripple, 1 Rawle, 386; MuUiken v. Graham, 72 Perm. St., 
 484; Butcher v. Yocum, 61 id., 168. Information from vendor's house 
 agent cannot be disi-egarded. Lewis v. Bradford, 10 Watts, 67 ; Lawton 
 V. Gordon, 37 Cal., 202, 205, 206. 
 
 2 Jaques v. Weeks, 7 Watts, 261. 
 
 spittman v. Sofley, 64 111., 155; Massie v. Greenhow, 2 Patt. 6c H., 
 255. 
 
 •« Chicago r, Witt, 75 lU., 211. See Loughridge v. Boland, 52 IMiss., 
 546; Reynolds v. Ruckman, 35 Mich., 80; Lambert r. Newman, 56 Ala., 
 623; Parker v. Fay, 43 Miss., 260; Wailes v. Cooper, 24 IVIiss., 208; 
 Butti-ick V. Holden, 13 Met., 355; Curtis v. Blair, 4 Cush. (]\Iiss.), 309; 
 MiUer v. Cresson, 5 Watts & S., 284; Woods v. Farmere, 7 Watts, 382; 
 Epley V. Witherow, 7 Watts, 163; Feeblest;. Reading, 8 Serg. & R., 484; 
 WUson V. McCuUough, 23 Pa. St., 440; Butler v. Stevens, 26 Me., 484; 
 Lamont v. Stimson, 5 Wis., 443; Churcher v. Guernsey, 39 Pa. St., 84; 
 Maul 17. Rider, 59 Pa. St., 167; Shepard v. Shepard, 36 Mich., 173. 
 
 5 Jolland V. Stainbridge, 3 Ves. Jr., 478. 
 
 e Woodworth v. Paige, 5 O. St., 70.
 
 ACTUAL NOTICE. 21 
 
 been held insufficient to charge the conscience of the pur- 
 chaser when given in connection witli a prior transaction/ 
 § 30. Degree of Certainty Required. — But while it is 
 essential that there should be reasonable certainty as to the 
 facts communicated, it is not to be understood that there 
 should ba a full description of the outstanding equity. It 
 suffices if the information is certain within the rule, id cer- 
 ium est quod certum reddi potest. If it directs the purchaser 
 to where he can become fully informed of the particulars, 
 he will be affected by it, if he fails to pursue his inquiries 
 in the direction indicated.^ Beins: referred to others for in- 
 formation, the purchaser is bound to inquire of the person 
 to whom he is sent.^ And merely asking one of the parties 
 to a transaction for information does not excuse the pur- 
 chaser from inquiring fm'ther, when the one inquired of re- 
 fuses to respond to the inquiry, and the purchaser has 
 reason to believe that there are others Avho are able and 
 willing to supply the information/ And where the infor- 
 mation is merely inaccurate as to the particular manner in 
 which the subject of contemplated purchase is affected by a 
 certain instrument, this circumstance will not excuse the 
 purchaser from further inquiry. He will be charged with a 
 
 1 Boggs V. Varner, 6 Watts & Serg. , 469 ; Meehan v. Williams, 48 Pa. 
 St., 238; Fuller v. Bennett, 2 Hare, 394; Bank of Louisville v. Curren, 
 36 la., 555; Lowtliers v. Carlton, 2 Atk., 242. See, also, General Steam, 
 etc., Co. V. Rolt, 6 C. B., N. S., 550; Thornber v. Sheard, 13 Beav., 
 589; Cobbett v. Brock, 20 Beav., 524; Berdoe v. Dawson, 34 Beav., 603; 
 Rhodes v. Cooke, 4 L. J. Ch., 147. 
 
 -'Jaques v. Weeks, 7 Watts, 266; Eply v. Witherow, id., 163; Spof- 
 ford V. Weston, 29 Me., 140; Bartlett v. Glascock, 4 Mo., 62; Barnes 
 V. McClinton, 3 Penn., 67; Water, etc., Co. v. Vechte, 21 N. J. Eq., 463; 
 Williamson v. Brown, 15 N. Y., 354; Jackson v. Caldwell, 1 Cow., 
 622; Hawley v. Cramer, 4 Cow., 717; Parish v. Brooks, 4 Brews., 154; 
 Nelson v. Sims, 1 Cush.. 383; Kerns v. Swope, 2 Watts, 75; Blatchley r. 
 Osborn, 33 Conn,, 226 ; Bellas v. McCarty, 10 Watts, 13 ; Buntmg v. Ricks, 
 3 Dev. & Bat. Eq., 130; Gibbs r. Cobb, 7 Rich. Eq., 54. 
 
 3 Wason V. Wareing, 15 Baav., 151 ; Bainbridge v. Moss, 8 Jur., N. S., 
 58; Wilson v. Hart, 2 H. & M., 551. 
 
 < Bainbridge r. Moss, 3 Jur., N. S., 58.
 
 22 THE DIFFERENT KINDS OF NOTICE. 
 
 knowledge of all the facts he might have learned by follow- 
 ing up the line of investigation suggested by the notice re- 
 ceived, with diligence.^ But although notice of a lease 
 will charge the purchaser with notice of its contents, it will 
 only be of usual covenants, and not such as are unusual and 
 extraordinary,- 
 
 §31. Notice to an Agent. — Generally, when the doc- 
 trine of notice to agents is referred to in the books, it is 
 mentioned as constructive notice.* But it seems to be gov- 
 erned to a considerable extent by the rules appMcable to 
 actual notice. In the case of Barnes v. McChnton,'* Gibson, 
 C. J., in rendering the opinion of the court says : * * * 
 " The purchaser had actual knowledge, through his counsel, 
 of the contents of his paper. * * * Xotice to the counsel, 
 in the same transaction, being presumptive notice to the 
 client." ^ 
 
 § 32. Principal Not Benefited by Agent's Frand.— To 
 hold that purchasers could never be affected with actual 
 notice, through an agent or attorney, would be to afford 
 extraordinary facilities to those who Avished to take fraud- 
 ulent advantage of the statutes requiring actual notice of 
 equitable interests, or unrecorded instrmnents affecting titles 
 to real estate, in order to charge the purchaser. If the 
 agent or attorne}^ to Avhom Avas intrusted the duty of in- 
 vestigating the title, and preparing instruments of convey- 
 
 1 Gibson v. Ingo, 6 Har., 113; Att'y Gen'l v. Jones, 3 Jur., 369; Taylor 
 V, Baker, 5 Price, 30G; Jackson v. Rowe, 3 Sim. & St., 473; Steedman 
 V. Poole, 16 L. J. Ch., 349; FaiTOw v. Rees, 4 Beav., 18; Penny v. 
 Watts, 1 Macn. & G., 150; MitcheU v. Steward, 35 L. J. Ch., 393; Abbot 
 v.Gerabty, 4 Jr. Ch.,33; Hinde v. Vattier, 1 McLean, 110; 7 Pet., 352; 
 Buck V. Paine, 50 jyiiss., 648; McLeod v. Fii'st Nat. Bank, 43 Miss., 99. 
 
 2 Van V. Corpe, 3 Mylne & K., 369; Flight v. Barton, 3 Mylne & K., 
 283. 
 
 3 See post, ch. IX, sec. 673 et seq. 
 
 *3Penn. 67; Stanley v. Chamberlain, 39 N. J. L., 565; Fiske v. 
 Potter, 3 Keyes, 64. 
 
 5 Kennedy v. Green, 3 M. & K., 699; Greenfield v. Edwards, 2 De G., 
 J. & S., 583.
 
 ACTUAL NOTICE. 23 
 
 ance, should be conveniently blind to whatever promised to 
 disclose an adverse claim outside of the public records, or 
 conveniently dumb in regard to such disclosures when made, 
 his principal might be effectually shielded from the conse- 
 quences of the fraud perpetrated by his representative. It 
 may not be strictly logical to say that " notice to an agent 
 is actual notice to the principal." But in the event of this 
 question arising, under such a statute, it will probably be 
 held a fraud upon the owner of the equity, or unrecorded 
 title, for the agent to conceal the knowledge acquired in 
 the course of his principal's employment, and the principal 
 will not be permitted to profit by his agent's fraudulent 
 act.^ 
 
 § 33. How Principal AiFected by Notice to Agent. — 
 It may therefore be confidently stated that while notice to 
 an agent is onl}^ regarded as the legal equivalent of per- 
 sonal notice to the principal represented in the transaction 
 in which the agent is engaged, because of the legal pre- 
 sumption, which is conclusive upon the principal, that the 
 agent, in pursuance of his duty, will convey the informa- 
 tion to his principal; still, notice to the agent is more than 
 constructive notice to the principal. Even where actual 
 notice is, by statute, alone suflBcient to affect purchasers, the 
 fact that actual notice is brought home to the one who rep- 
 resents such principal in the transaction would be as bind- 
 ing upon him as though he had been personally notified. 
 And if the notice comes to the agent in the shape of knowl- 
 edge of circumstances which should put a man of ordinary 
 prudence upon inquiry, the principal will, by implication, 
 be charged with notice as though he had been personally 
 cognizant of the facts which challenged inquiry from the 
 agent.2 
 
 §34. Purchase .After Fruitless Inquiry. — But where 
 notice is implied from knowledge of facts which point 
 with reasonable certainty to the means of ascertaining 
 the truth of the matter involved, proof that inquiries have 
 
 1 See post, ch. IX, Part II. 
 
 2 Bank of United States v. Davis, 3 Hill, 451.
 
 24: THE DIFFERENT KINDS OF NOTICE. 
 
 been prosecuted with reasonable diligence, and the pur- 
 ehaser is led to believe in the absence of any adverse claim/ 
 or even fails to obtain any further or more reliable informa- 
 tion than that which excited his inquiries,- he may purchase 
 with securit}^ The extent to which inquiry should be 
 carried must depend to a considerable degree upon the 
 character of the information received by the purchaser. 
 Where one has received notice of the existence of an instru- 
 ]nent which may or may not affect the title, the notice, to 
 charge him with a knowledge of its contents, shoidd be suffi- 
 ciently explicit to connect the instrument in some way 
 with the matter in which he is interested. He is not to be 
 charged with notice of the contents of any such instrument 
 by his mere failure to inquire, when such failm^e is perfectly 
 consistent with good faith, ordinary diligence, and a gen- 
 eral disposition to fair dealing.'' 
 
 §35. Information Allaying Suspicion. — So where the 
 attaching creditor was informed by the debtor that he 
 had ah-eady executed a deed to another, but that such deed 
 had neither been acknowledged nor delivered, and in corrob- 
 oration of the latter statement exhibited the deed, which 
 was still in his own possession, it was held that the creditoi- 
 might rely upon the truth of such statement without further 
 inquiry or investigation.^ And if the information, coming 
 from the party supposed to be interested adversely to the 
 
 1 Hudson V. Warner, 2 H. & G., 415. 
 
 2 Jackson v. Van Valkenburgh, 8 Cow., 260. 
 
 3Kenney v. Bro-mie, 3 Eigd. P. C, 512; West v. Reid, 2 Ha., 249; 
 Harryman v. ColUns, 18 Beav., 91; Cox v. Coventon, 31 Beav., 378: 
 McQueen v. Farquhar, 11 Ves., 482; Perry v. HoU, 2 De G., F. & J., 
 38; Dodds v. Hills, 2 H. & M., 424; Jones v. Smith, 1 Hare, 43; Ponder 
 V. Scott, 44 Ala., 241. 
 
 ■« Rogers v. Jones, 8 N. H., 264 ; Re Bright's Trusts, 21 Beav., 430 ; Jones 
 r. Smith, 1 Hare, 43; S. C, 1 Pliil., 244; Wilson .v. Short, 6 Hare, 366; 
 Vignolles v. Bowen, 12 Ir. Eq., 194; Smith v. Reese, etc., Co., L. R., 2 
 Eq., 264; Grosvenor v. Green, 28 L. J. Ch., 173; McCuUoch v. Gregory, 
 1 Kay & J., 286; Stewart's Case, L. R., 1 Ch. App., 574; Jones v. Will- 
 iams, 24 Beav., 47; Espin v. Pemberton, 3 De G. & J., 547; Buttrick v. 
 Holden, 13 Met. (Mass.), 355; Curtis v. Blair, 4 Cush. (Miss.), 309; Rogers 
 V. Wiley, 14 HI., 65.
 
 ACTUAL NOTICE. 25 
 
 vendor, is in effect either an express or implied denial of his 
 own right or title, the vendee may rely upon such informa- 
 tion, and will be protected in his pm'chase.^ 
 
 § 36. The Effect of Reliance on Information from 
 Doubtful Sources. — But where the pm'chaser and his 
 agent had been advised of a contract for the sale of the 
 land by the agent of the prior purchaser, which agent had 
 been prosecuted for embezzhng funds in the transaction, 
 and subsequently informed the last purchaser that the con- 
 tract with his principal was broken off, it was lield that 
 the subsequent pui'chaser had no right to rely upon such 
 statemQnts from so doubtful a source.^ 
 
 § 36a. A Practical Tiew of the Distinction between 
 Actual and Constructive Notice. — The only reason for 
 treating that kind of notice which is called actual sepa- 
 rately from that which is denominated constructive is that 
 the general principles of notice may be appealed to in 
 cases where the law recognizes, as controlling, only notice 
 of the former class. When the rights of parties Utigant 
 may be affected by notice generally, it is of little conse- 
 quence whether it be of the one kind or the other. There 
 is a distinction between the two which in a proper case will 
 be found of vital importance. As, for example, when the 
 right of recovery of an indorser of negotiable paper, received 
 in the ordinary course of business before maturity, is ques- 
 tioned by the payer, upon the ground that it was purchased 
 by the holder with notice of facts which would impeach its 
 vaHdity between antecedent parties. The decided weight 
 of authorit}^ is in support of the doctrine that the purchas- 
 er's rights can only be affected by actual notice of such 
 
 iMoGeheei'.Gindrat, 20 Ala., 95; Pearson v. Morgan, 2 BroAvn, Ch., 
 353; Burrows v. Locke, 10 Ves., 470; Barry v. Croskey, 2 Johns. & H., 
 21; Ibbotsonr. Rhodes, 2 Vern., 554; Lee v. Howlett, 2 Kay & J., 531; 
 SUm %\ Ci-oucher, 1 De G., F. & J., 518; Bridge v. Beadon, L. R., 3 Eq., 
 664; infra, § 36, and cases cited. 
 
 -'MuUiken v. Graham, 72 Pa. St., 484; Price v. McDonald, 1 Md., 403; 
 Hudson V. Wainer, 2 Hai-. & G., 415; Russell v. Petree, 10 B. Mon., 184; 
 Littleton v. Giddings, 47 Tex., 109.
 
 26 THE DIFFERENT KINDS OF NOTICE. 
 
 facts.' Ilere the question of notice is strictly one of fact, 
 and cannot be determined by tlie rules of constructive notice, 
 properly so called.- But this essential distinction cannot be 
 made for practical purposes, either where actual notice is 
 required b}" statute, or where it is demanded by a rule of 
 the common law, by laying down an inflexible rule of clas- 
 sification, that shall clearly distinguish notice of the one 
 kind from the other for all cases where the distinction is 
 material. It cannot be said that a purchaser can never be 
 charged with actual notice, when the circumstances make 
 out a case of constructive notice. Although it be strictly 
 true that actual notice is a question of fact, it is equally 
 true that it may be established by the aid of conclusive pre- 
 sumptions. The distmction is between actual and construct- 
 ive notice, and not between actual hnowledge and constructive 
 notice. The difference in meaning between hioicled/je and 
 notice must not be overlooked,* for it is equally important 
 with the distinction between the different kinds of notice. 
 The fact to be established, when the case requires jDroof of 
 actual notice, is that the party acquired his pretended rights 
 with notice, and this may be true, although the purchase 
 may have been made in actual ignorance of the facts of 
 which knowledge is imputed to the pm'chaser.* 
 
 1 Post, § 84 ef seq. 
 
 2 Goodman v. Simonds, 20 How., 343; post, § 85. 
 
 ^ Supra, §§3, 4. 
 
 •*This subject will be further considered in connection with Con- 
 structive Notice. {Post, § 43 et seq.) And examples wUl be given of 
 the application of the principles herein contended for, in connection with 
 notice by Registration, Title Papers, etc. Post, eh. Ill et seq.
 
 CONSTBUCTIVE NOTICE, 27 
 
 II. CONSTRUCTIYE KoTICE. 
 
 § 37. Definitions. 
 
 38. Held Same as Implied Notice. 
 
 39. Constructive Notice Prescribed by Statute. 
 
 40. Distinction between Different Kinds of Notice. 
 
 41. Different Kinds of Constructive Notice. 
 
 42. Infei'ence of Law. 
 
 42a. Same — Distinction between, and Inference of Fact. 
 
 43. Contents of Writing Kno^vn to Party Executing the Same. 
 
 44. Possession as Constructive Notice. 
 
 45. Purchaser Pendente Lite. 
 
 46. Recitals in Title Paper. 
 
 47. Possession of Deeds. 
 
 §37. Defiuitious. — Constructive notice is defined by 
 Chief Baron Eyee as " in its natm^e no more than evidence 
 of notice, the presumptions of which are so violent that the 
 court will not allow of its beino- controverted." ^ Judo-e 
 Stoey defines it as " knowledge miputed by the court on 
 presumption, too strong to be rebutted, that the knowledge 
 must have been communicated." - 
 
 § 38. Held Same as Implied Notice. — These defini- 
 tions exclude all those cases where the legal presumption of 
 notice is subject to rebuttal or explanation. Chancellor Kent, 
 however, says, " I hold him chargeable with constructive 
 notice, or notice in law, because he had information suffi- 
 cient to put him upon inquiry." ^ Whatever presmnptions 
 of notice might arise from information sufficient to put the 
 party upon inquiry could be explained away by showing 
 that, notwithstanding dihgent inquiry was made, it proved 
 fruitless of residts, or the imputation of knowledge may be 
 rebutted by proof that the party thus sought to be charged 
 was misled, and lulled into security by countervaihng cir- 
 cumstances, or a denial of the information by which inquiry 
 
 1 Plumb V. Fluitt, 2 Anstr. , 432 ; Kennedy v. Green, 3 M. & K., 699, 719 ; 
 WMe V. Gibson, 1 H. of L. Cas., 605. 
 2Story*sEq. Jur., § 399. 
 sSterryu.Axden, 1 John. Ch., 261.
 
 28 THE DIFFERENT KINDS OF NOTICE. 
 
 was originally excited. There is another definition more 
 comprehensive in its scope than either of the preceding, and 
 is laid down as follows : " Constructive notice is a legal in- 
 ference of notice of so high a nature as to be conclusive, 
 unless disproved, and is in most cases insusceptible of ex- 
 planation or rebuttal by evidence that the purchaser had 
 no actual notice, and believed the vendor's title to be 
 good." ^ 
 
 § 39. Constructive Notice Prescribed by Statute. — 
 AYhile the foregoing definitions of this title are doubt- 
 less sutficiently full and comprehensive in the connection 
 in which they are emplo3^ed, the}'' do not convey a dis- 
 tinct idea of that kind of notice which is constructive, as 
 distino-uished from that which is actual, without reference 
 to the connection ; for this term includes not only the evi- 
 dence of notice where the presumptions are ^dolent, or the 
 imputation of knowledge from presumptions too strong to 
 be rebutted, that such knowledge has been communicated, 
 or a legal inference of notice of a high character ; but it 
 also embraces that which is made conclusive upon the party 
 notified by the provisions of a statute, without regard to 
 the evidence of actual notice, or the actual probabilities of 
 the communication of the knowledge imputed. 
 
 § 40. Distinction between Different Kinds of Notice. — 
 One of the distinguishing features between these two kinds 
 of notice, which seem to glide imperceptibly into each 
 other, is that when the facts upon which the presumption 
 is founded have been ascertained, the question of construct- 
 ive notice is always for the court,^ while the question of 
 
 iLead. Cas. Eq., vol. 11, part 1, 77 (Am. note). The more this defini- 
 tion is examined the less satisfactory it seems. A legal presumption 
 capable of being disproved seems a non sequitur. Story's definition is 
 better. Infra, § 40. 
 
 2Bu-dsall V. Russell, 29 N. Y., 220. It is at least questionable whether 
 all the confusion upon this subject may be avoided by observing the dis- 
 tinction above laid down. While I shall always maintain that posses- 
 sion is a fact from which actual notice may be inf eiTed, I shall not deny 
 that it may furnish a foundation for that conclusive presumption which
 
 CONSTKUCTIVE NOTICE. * 29 
 
 actual notice is frequently submitted to the jury, together 
 with the evidence from which the inference of fact is drawn, 
 without charge or instruction as to the weight of the evi- 
 ls an essential element of constructive notice. Tlie same is true of no- 
 tice derived from title papers in the purchaser's possession, or consti- 
 tuting essential links in a chain of title to property owned by him. At 
 a certain stage of tliis controversy between prior and subsequent pur- 
 chasers, possession may be regarded as notliing more than evidence of no- 
 tice. At another stage of the same controversy, it becomes conclusive 
 either as evidence of actual notice, or as a presumption, or implica- 
 tion of notice. Thus, suppose it is shown that the prior pm-chaser was 
 in actual possession of the premises at the time the same were conveyed 
 to the subsequent vendee. The latter is not concluded by this showing. 
 He may overcome the inference by evidence that he made dihgent in- 
 quiiy of the party in possession, and gained no knowledge of the latter's 
 claim ; or, that such possession was consistent with the terms of an in- 
 strument of record, of which the subsequent purchaser had personal 
 knowledge and upon wlrich he was led to rely. There are numerous 
 other modes of overcoming the effect of possession as an inference of 
 notice ; but evidence that merely denies all knowledge or information of 
 such possession, or the claim of title under which the occupant held the 
 premises, would not tend in the least to this end. Before a denial o^ 
 knowledge of a fact of tliis kind can be received and estimated as of 
 any value whatever, it must appear that the party seeking to avoid its 
 effect has exercised dihgence in piu'suit of such knowledge, or that 
 some other fact was presented to lais notice that removed the impressions 
 made by the fact of possession. If the evidence of notice, and absence 
 of notice, goes no farther than proof of the prior purchaser's open, no- 
 torious and exclusive possession under a claim of title, on the one hand, 
 and the simple denial of the subsequent purchaser that he had any no- 
 tice or knowledge of such possession, or of the right by wliicli the pos- 
 sessor claimed to occupy the premises, it must be taken as conclusively 
 established that the subsequent purchase was made with notice of the 
 prior vendee's right. "Whether the question is regarded as one of actual 
 or constructive notice, it must be regarded as a question of law, except 
 so far as the credibility of witnesses is concerned. If the jury believe 
 from the evidence that the possession ■was of the character indicated, it 
 is of no consequence whether the purchaser knew it or not. K the pur- 
 chaser is conclusively presumed to know who occupies the premises, in 
 the absence of proof of inquiry, he will be conclusively presumed to 
 know all the facts he might have learned by inquiry of the party in 
 possession. This comes very near meeting aU the requirements of con- 
 structive notice.
 
 30 -. THE DIFFERENT KINDS OF NOTICE, 
 
 dcnce.' The distinction here contended for is well set forth 
 by a learned text-writer in the following language: "It 
 will have been perceived that the term constructive notice 
 is here used in a somewhat indefinite sense. The same is 
 true in regard to most text-writers and judges. This form 
 of expression is applied, indiscriminately, to such notice as 
 is not susceptible of being explained or rebutted, and to 
 that which may be. It seems more appropriate to the 
 former kind of notices. It will then include notice by the 
 registry, and notice by Us pendens. But such notice as de- 
 pends upon possession, upon knowledge of an agent, upon 
 facts to put one upon inquiry, and some other similar mat- 
 ters, although often called constructive notice, is rather im- 
 plied notice or presumptive notice, subject to be rebutted or 
 explained. Constructive notice is thus a conclusive pre- 
 sumption or a presumption of law, while implied notice is a 
 presumption of fact. If this distinction were carefully pre- 
 served by writers upon this subject, it would enable us to 
 escape a good deal of confusion in regard to the subject of 
 notice." ^ 
 
 §41. Different Kinds of Constrnctive Notice. — The 
 following are conspicuous examples of constructive notice 
 as it atfects subsequent purchasers and incumbrancers of real 
 estate: 1. Notice by registration of instruments affecting 
 the title. 2. Kotice from title papers through which the 
 title of the grantor is traced. 3. Lis pendens. To which 
 may be added, possession by the adverse claimant under 
 claim of ownership. All of which, however, are separately 
 treated in the succeeding chapters.^ Publication is also 
 a common substitute for notice, and, when served in this 
 manner, is generally known as constructive notice.* This, 
 
 1 Mayor, etc., v. Williams, 6 Md., 235; Trefts v. King, 18 Perm. St., 
 157. 
 
 - Story's Eq. Jur. , § 410a. For examples see and examine the cases 
 cited in Jones v. Smith, 1 Hare, 43, 55, 56. 
 
 3 Seepos^, chs. Ill, IV, V, VI. 
 
 *Seeposf, ch. XI.
 
 CO^^STRUCTIVE NOTICE. 31 
 
 like registration, is purely of statutory creation, and is con- 
 sequently subject to strict construction. 
 
 § 42. Inference of Law. — The notice which arises from 
 legal inference drawn from facts and circumstances suffi- 
 cient to put the party upon inquiry is only effectual to 
 charge a purchaser when the circumstances are of such a 
 character that to fail in obtaining the knowledge would be 
 gross or culpable negligence.^ And this, we have seen, is 
 only distinguished from that kind of actual notice arising 
 from inference of fact by the most shadowy line.- Judge 
 Gibson, in Weidler v. Farmers' Bank of Lancaster,^ says 
 that " constructive notice is not lyrima facie evidence of 
 actual knowledge of the fact ; the presumption of notice, 
 Avhen it arises at all, being conclusive even against the truth 
 of the fact, and therefore constructive notice is always in- 
 sufficient to fix on a party actual knowledge as the ground- 
 work of express fraud. * * * There might be a case of 
 so gross a nature as to raise a presumption from the fact 
 itself, that the judgment creditor knew the debtor to be 
 without color of title." 
 
 § 4:2a. Same — Distinction Between^ and Inference of 
 Eact.^ — Although the distinction between the legal pre- 
 sumption of notice, and facts from which notice may be 
 inferred, is insisted upon by the learned judge whose lan- 
 guage is quoted in the next preceding section, it is with 
 more peremptoriness than clearness. There is nothing in- 
 consistent in drawing a legal inference, and an inference 
 of fact, from the same circumstances. There are cases 
 of conflicting rights to property which cannot be adjudi- 
 cated upon the basis of constructive notice, for the reason 
 that, under the statute, or the governing rule of common 
 law, the purchaser can only be affected by actual notice of 
 the adverse claim. ^ ISTevertheless, there is not necessarily a 
 
 1 Ware v. Lord Egmont, 4 De G., M, & G., 460. 
 
 "^Ante, % 40. 
 
 3 11S. &R., 134. 
 
 ^Ante,%Z^a.
 
 6'J THE DIFFEEENT KINDS OF NOTICE. 
 
 failure of evidence of notice of the requisite actuality, 
 merely for the reason that the same facts might be adduced 
 in supi)ort of the theory of constructive notice. Thus, 
 where it is held that a purchaser has constructive notice of 
 every fact disclosed by the muniments which constitute the 
 claim of title of the subject of purchase, the presumption 
 is conclusive,^ and at the same time is regarded as the legal 
 equivalent of actual notice, whether the adverse claim be- 
 comes actually known to the purchaser or not.- Actual 
 possession under a claim of title is also a circumstance that 
 is equally conclusive.^ The only distinction to be made 
 where these circumstances are appealed to as evidence of 
 actual notice, and when they are relied on as construct- 
 ive notice, is that, in the latter event, the facts from which 
 the inference is drawn are all admitted without qualifica- 
 tion, or conclusively proved, and in the former they are dis- 
 puted, or qualified by other facts. When left to the jury, 
 it must be under instructions that give full weig4it to them 
 as evidential facts, not to be overcome by a mere denial of 
 knowledge. Notice by registration, and by lis pendens,* 
 differ from possession, and recitals in the chain of title, in 
 something more than the number of facts upon which they 
 depend. If an instrument is properly registered, it will be 
 constructive notice, and if the party to be charged has seen 
 the record, actual notice of its contents. The pendency 
 of the action is constructive notice, but requires something 
 more than the service of original process upon the vendor 
 to make it actual notice to the vendee. But either regis- 
 tration or lis pendens is conclusive upon the party, with- 
 out any regard to the probabilities, or even the j>ossihilit(/, 
 of his having gained a knowledge of the prior right. The 
 same is true of notice by publication where that is author- 
 ized by statute.-^ When notice depends upon an inference 
 
 1 Post, § 310 et seq. 
 
 2 Posf, §308. 
 
 3 Supra, § 40, note. 
 *Post, isBI etseq. 
 ^Post, §449 et seq.
 
 CONSTRUCTIVE NOTICE. 33 
 
 of fact, it is where the party to be charged might liave 
 gained knowledge b}^ tlie exercise of due diligence. Wlu n 
 it depends upon an inference of law, he will be charged, 
 though actual knowledge was utterly beyond his reach. 
 The inference of fact may be overcome, or qualified by 
 other facts. The inference of law is final. 
 
 § 4:3. Contents of Writing Known to Party Executing 
 Same. — Where the notice with which a party is sought 
 to be affected is traced thrx^ugh an instrument executed 
 by himself, it matters not wliether such instrument con- 
 stitutes a necessary link in his chain of title, he will be 
 conclusively presumed to have full knowledge of its coii- 
 tents, except where his signature has been obtained by 
 fraud or deceit.^ 
 
 § 44. Possession as Constructive Notice. — The same 
 rules govern where the purchaser is charged with con- 
 structive notice by adverse possession, as where sucli posses- 
 sion is regarded merely as evidence from which the jury 
 are at liberty to infer actual notice. The possession must 
 be clear, open, notorious and unequivocal, at the time of 
 the purchase.^ 
 
 §45. Purchaser Pendente Lite. — Independent of the 
 doctrine by Avhich purchasers j!?^?i^g;i?fe lite are affected 
 with constructive notice of the suit, so as to bind the prop- 
 erty in their hands by the judgment, it has been held that 
 the clerk of a court in which vv^as pending a suit for specific 
 
 1 Howard Ins. Co. v. Halsey, 4 Sandf., 565; S. C, 8 N. Y., 271. 
 
 2Meehan v. WiUiams, 48 Pa. St., 238; Hughes v. U. S., 4 Wall., 232; 
 Landes v. Brant, 10 How. , 348 ; Smith v. Shane, 1 McLean, 22 ; Lea v. 
 Polk Co., etc. Co., 21 How,, 499; Buckingham v. Smith, 10 Oliio, 288: 
 KnoxtJ. Thompson, 1 Litt., 350; Hanly v. Morse, 32 Me., 287; Griswokl 
 V, Smith, 10 Vt., 452; Harris v. Carter, 3 Stew., 233; Johnston i'. Glancy, 
 4 Blackf., 94; Moreland v. Lemaster, 4 Blackf., 383; Walker v. Gilbert, 
 1 Freem. Ch., 75; Diehl v. Page, 3 N. J. Eq., 143; Wilty v. Hightower, 
 6 Sm. & M., 345; Jenkins v. Bodley, 1 Sm. & M. Ch., 338; Brown v. 
 Andover, 1 Mon., 193; Fallen v. HoUidaysburg, 40 Pa. St., 206; Holmes 
 V. Powell, 8 De G., M. & G., 580; Hardy v. Summers, 10 G, & J., 316; 
 post, § 273 et seq. 
 8
 
 31 THE DIFFERENT KINDS OF NOTICE, 
 
 •performance was constructively charged with notice of the 
 nature of plaintiff's demand.' 
 
 § 4<J. Recitals in Title Papers. — Perhaps as striking 
 an example of tlie extent of this doctrine as could be found 
 is the case of Peto v. Hammond,- where a vendor's hen was 
 retained in <\m deed to the grantor of the party charged, 
 whicli deed had ahvays remained in the original vendor's 
 l)ossession, and the grantee of the party against whom the 
 debt stood that was secured by the lien had never had an 
 opportunity to inspect the instrument. Nevertheless, it was 
 held that he had constructive notice of such lien, for the 
 reason that it was recited in a deed which formed a neces- 
 sary link in his chain of title.' But where such recital is 
 relied upon as constructive notice, it must be in an instru- 
 ment affecting the title to the same piece of property to 
 which such recital refers.^ 
 
 § 47. Possession of Deeds. — Where the title deeds neces- 
 sarily pass with the title, and strict reliance is not placed 
 upon the registry of instruments affecting land titles, no- 
 tice that the title deeds of an estate are in the possession 
 of some one else than the grantor is generally held to 
 be constructive notice of whatever claim the one in pos- 
 session of such deed had against the property.^ And when 
 the title deeds are not found in the possession of the vendor 
 it becomes the duty of the vendee to make dihgent in- 
 quiry therefor. He cannot suffer himself to be put off 
 Avith frivolous excuses for tlieir absence, and purchase with 
 security." But tliis must be understood to depend upon 
 
 1 Dickerson v. Campbell, 32 Mo., 544. 
 
 2 30 Beav., 495;- S. C, 8 Jur., N. S., 550. 
 
 3 Ferrai-s v. Cherry, 2 Vern., 384; Att'y General v. Flint, 4 Hare, 147; 
 Peto V. Hammond, 30 Beav., 495: Walter v. Maunde, 1 J. & W., 181; 
 Smith V. Capron, 7 Hai-e, 191 ; Lewis v. Bond, 18 Beav., 85; Spunner v. 
 AValsh, 10 Ii-. Eq., 386. 
 
 * Boggs V. Varner, 6 W. & S., 469. 
 5 Hiein v. IMill, 13 Ves., 114. 
 
 ^Dryden v. Frost, 3 M. & C, 670; Jones v. Williams, 24 Beav., 47; 
 Tybee V.Webb, 6 Beav., 552; Worthington v. Morgan, 16 Sim., 547; Allen
 
 CONSTErCTIVE NOTICE. 60 
 
 who has the actual custody of such deeds ; as where thej 
 are, according to regular usage, in the hands of the vendor's 
 solicitor, they will be regarded as in the possession of 
 the vendor himself, and hence the solicitor's possession will 
 not impart notice of his claims on the property.^ The in- 
 ference to be drawn from the vendor's want of possession 
 of the title deeds, being one of law, will be confined in its 
 operation to proper boundaries and will not be unduly ex- 
 tended by implication.^ 
 
 r. Knight, 5 Hare, 272; Colyer v. Fincli, 5 H. L., 905; Hewitt v. Loose- 
 more, 9 Haxe, 449; Hopgood v. Ernest, 3 De G., J. & S., 116; Peto v. 
 Hammond, 30 Beav., 495; Atterbuiy v. Wallis, 8 De G., M. & G., 454. 
 
 1 Bozon V. Williams, 3 Younge & J., 150, 
 
 -'Griffith V. Griffith, 1 Hoff. Ch., 153.
 
 CHAPTER II. 
 
 NOTICE TO PUECHASERS OF DIFFERENT KINDS OF PROPERTi'. 
 
 § 48. Division of Subject. 
 
 49. I*urchasers of Real Property. 
 
 50. Purchaser 3Iala Fide. 
 
 51. Notice of Marriage Settlement. 
 
 52. Parol Contract to Convey. 
 
 53. Wlien Vendee Requii-ed to Perform in Lieu of Vendor. 
 
 54. Notice of Adopted Son's Equity. 
 
 55. Prior and Subsequent Contracts to Convey. 
 
 56. Possession of Title Deeds. 
 
 57. Purchaser with Klnowledge of Trust. 
 
 58. Mortgagee with Knowledge of Trust. 
 
 59. Notice to Tiiistee. 
 
 60. Notice Prior to Payment. 
 
 61. Purchaser without, from Purchaser -tvith, Notice. 
 
 62. Pui'chaser with, from Purchaser without, Notice. 
 
 63. Re-purchase by Original Mala Fide Purchaser. 
 
 64. Unregistered Conveyances. 
 
 65. How Purchasers May be Notified. 
 65a. Due Inquiry. 
 
 66. Different Kinds of Notice. 
 
 67. Purchasers of Chattels. 
 
 68. Innocent Pledgees. 
 
 69. Mere Possession Not Conclusive Evidence of Title, 
 
 70. Secret Instructions to Broker. 
 
 71. Secret Lien. 
 
 72. Conditional Sales. 
 
 73. Pledge. 
 
 74. Condition May be by Parol. 
 
 75. Property Reclaimed in an Altered State. 
 
 76. Caveat Emptor. 
 
 77. Chattel Mortgages. 
 
 78. Possession of Chattels. 
 
 79. Choses in Action. 
 
 80. Negotiable Instruments. 
 
 81. Lost Bill. 
 
 82. Holder Affected Only When Grossly Negligent. 
 
 83. Bad Faith Requisite to Defeat Holder's Rights. 
 
 84. Purchaser without Notice Protected.
 
 DIFFEKEI^T KINDS OF PEOPEKTT. 61 
 
 85. SaiflG — Knowledge a Question of Fact. 
 
 86. Facts Which Excite Inquiry Held Inadmissible. 
 
 87. Circumstances A\'liich Put Purchaser on His Guard. 
 
 88. Bad Faith an Inference of Fact. 
 
 89. Stolen Securities — Avoidance of Knowledge. 
 
 90. Inquiry Excited by Inspection of Paper. 
 
 91. Wlien General Notice Sufficient. 
 93. Suspicious Ch'cumstances. 
 
 92a. The Time When Notice Must be Acquired to Affect Purchasers. 
 
 93. Payment Before and After Notice. 
 
 94. Patent Defects Affecting Purchaser. 
 
 94a. Notice of Want or Failure of Consideration. 
 946. Notice of Diversion of Accommodation Paper. 
 
 § 48. Division of Subject. — It is a well-recognized rule 
 of equity jurisprudence that a purchaser, with notice of 
 a right in another, is liable in the same manner, and to 
 the same extent, to the person in whom is the right of 
 which he had notice, as was the one from whom he pur- 
 chased.^ And this liability attaches in favor of such per- 
 son whether he has united in himself both the legal and 
 equitable titles, or is merely the owner of an equitable in- 
 terest, Avith the legal title in the vendor.- It applies to all 
 classes of property, whethet it be real, personal or mixed, — 
 in possession or in action. It is the purpose, in this place, 
 to show when and how it applies to these different kinds of 
 property, which, for convenience, will be considered in the 
 following order : 1. Real property. 2. Chattels in posses- 
 sion. 3. Things in action, — with special reference to nego- 
 tiable instruments. 
 
 § 49. Purchasers of Real Property. — Except where 
 the statute otherwise provides, a purchaser of real property 
 
 1 ColdweU V. Carrington, 9 Pet., 86; Moreland v. Le Master, 4 Blackf., 
 383; Edwards v. Mon-is, 2 A. K. Marsh., 65; Langdon v. Woodfield, 3 B. 
 Mon., 105; Allen v. Sanders, 2 Bibb, 94; Yoder v. Swope, 3 Bibb, 204; 
 Taylor v. Stibbert, 3 Ves. Jr., 437; Dunbar v. Fredennick, 3 Ba. & Be., 
 310; Steedman v. Poole, 6 Hai-e, 193; Smith v. Denton, 43 la., 48; Wat- 
 son V. Phelps, 40 la., 483. 
 
 2 Saunders v. Dehew, 3 Vem., 271 ; Allen v. Knight, 5 Ha., 373; Carter 
 V. Carter, 2 K. & J., 617; Cory v. Eyre, 1 De G., J. & S,, 149.
 
 38 NOTICE TO PURCnASEKS. 
 
 will be affected by notice, either actual or constructive, of 
 an interest or title adverse to that of his grantor.^ But a 
 purchaser's right of action for breach of covenants, " grant, 
 bargain and sell," is not affected by notice, actual or con- 
 structive, of an incumbrance existing at the date of the 
 pui'chase.- Notice which is constructively given by the 
 registration of instruments affecting the title is perhaps 
 the most general ; but, as this portion of the subject is more 
 fully treated in the next succeeding chapter, it will not re- 
 ceive further attention here.* 
 
 § 50. Purchaser Mala Fide.— The general ground upon 
 which courts of equity interfere for the protection of the 
 owner of an equitable interest in real estate, as against 
 the subsequent purchaser with notice, is that it is in bad 
 faith for one to attempt the circumvention of the true 
 owner of the property, by endeavoring to anticipate him 
 in gaining the advantage to be derived from an acquisition 
 of the legal title.* Lord Hardwicke, in a leading case upon 
 this subject, which has been so frequently cited as to be- 
 come familiar to the profession, declares the substance of 
 the rule in saying that " the taking of a legal estate, after 
 notice of a prior right, makes a person a mala fide pur- 
 chaser." ^ And this principle is applied to that case by the 
 learned chancellor, notwithstanding the fact that the pur- 
 chase declared to be fraudulent was for a valuable consid- 
 eration, and the notice by which the purchaser was affected 
 was given to an agent, and there was no evidence that it 
 had been communicated to the principal.® 
 
 iQerson v. Pool, 31 Ark., 85; Haskell v. State, id., 91; Colman v. 
 Watson, 54 Ind., 65; Lamout v. Cheshire, 65 N. Y., 30. 
 
 2Clore V. Graham, 64 Mo., 249. 
 
 3 See post, ch. III. 
 
 ••Kennedy v. Daly, 1 Sch. & Lef., 355; Coble v. Nonemaker, 78 Penn. 
 St., 501; Kepler v. Davis, 80 id., 153; Scott v. Dunbar, 1 Moll., 442; 
 Mackroth v. Symmons, 15 Ves., 350; Eice v. Rice, 2 Drew, 73; Hiern v. 
 MiU, 13 Ves., 114; Coles v. Sims, 5 De G., M. & G., 1. 
 
 SLe Neve v. Le Neve, 3 Atk., 646; S. C, 1 Ves. Sr., 64. 
 
 6 Seech. IX.
 
 I DIFFERENT KINDS OF PKOPERTT. 39 
 
 § 51. Notice of Marriage Settlement. — Upon this prin- 
 ciple, where the defendant purchased an estate with notice 
 of the fact that it had previously been entailed to the 
 plaintiff in a marriage settlement by his father, who was 
 defendant's grantor, it was held that such purchaser took 
 the estate charged with the trust, which the court would 
 compel him to execute, by accounting for the considera- 
 tion received upon transferring the property to innocent 
 purchasers.^ 
 
 §52. Parol Contract to Convey.— So a purchaser with 
 notice of a parol contract, executed on the part of one of 
 the parties, between the owner of the fee under whom 
 he claimed, and a tenant per autre me, to change the cestui 
 que vie by inserting the name of tenant's wife instead of an 
 older Ufe, was held by decree to specific performance of the 
 contract.'^ 
 
 § 53. When Vtnilee Required to Perform in Lien of 
 Vendor. — There are also numerous cases, where the owner 
 of the equity has gone into possession of the real estate 
 under a parol contract of purchase, which only becomes 
 the subject of equitable enforcement by reason of the 
 fact that there is a part performance by the covenantee 
 which takes it out of the operation of the statute of frauds. 
 In these cases, the purchasers who took with notice of the 
 facts were decreed to perform precisely as though they 
 were the original contracting parties.' 
 
 § 54. Notice of Adopted Son's Equity. — And even where 
 the claimant's equity is not fortified by possession and im- 
 provement, there are cases of a pecuhar character where 
 the courts have granted relief against the purchaser with 
 notice. As where an agreement was entered into with 
 the father of an infant son, by an uncle, to adopt the 
 nephew as his own child, with provision that his property 
 should descend to such adopted son on the death of the 
 
 1 Ferrars v. Cherry, 2 Vern. , 383. 
 
 2Crofton V. Ormsby, 2 Sch, & Lef., 583; Bryant v. Booze, 55 Ga., 438. 
 
 3 Daniels v. Davison, 16 Ves., 249; Blatcliley v. Osborn, 33 Conn., 226.
 
 40 KOTICE TO PDKCHASEKS. 
 
 uncle and wife. Pursuant to this agreement the child was 
 taken into the uncle's family, and lived with him until he 
 reached the age of twenty-five years. At the age of sixty- 
 live the uncle, in consideration of the support of himself 
 and wife for the remainder of their lives, conveyed a con- 
 siderable portion of his property to his wife's sister. The 
 grantee, taking the deed with notice of the nephew's equity, 
 was held not to be a lona fide purchaser, and the nephew 
 was entitled to relief.^ 
 
 § 55. Prior and Subseiiuent Contracts to Convey. — 
 As between antecedent covenantees and subsequent cov- 
 enantees with notice, the first contract will be enforced. 
 The prior equity is entitled to the same protection against 
 subsequent purchasers in bad faith, as though the contest 
 lay between rival claimants to the legal title. So, where 
 one contracted with two different parties to sell the same 
 estate, the one first in time would be entitled to specific 
 performance, and the subsequent covenantee, having ob- 
 tained the legal title after notice of the prior equity, was 
 decreed to convey to the first covenantee.- 
 
 § 56. Possession of Title Deeds. — It has been held in 
 England, where the possession of the title deeds usually 
 accompanies the title, that notice that such deeds were in. 
 the possession of another than the grantor was sufficient 
 notice of an equitable claim by the holder of the deeds, to 
 bind the propert}' in the hands of the purchaser. Especially 
 is this so held where, with notice of such possession, there is 
 an entire absence of inquuy with regard to the causes for 
 the absence of the title deeds from the possession of the 
 grantor.^ But when it appears that the purchaser has been 
 
 1 Vanduyue v. Vreeland, 13 N. J. Eq., 142. 
 
 ■-Potter V. Sanders, 6 Hare, 1; Taylor v. Stibbert, 2 Ves. Jr., 437; 
 Bryant v. Booze, 55 Ga., 438. 
 
 " RatcUffe r. Barnard, L. R. , 6 Ch. , 652 ; Maxfield v. Burton, L. R. , 17 Eq. , 
 15; Rolland v. Hart, L. R., 6 Ch., 678; Broadbent v. Barlow, 3 De G., F. 
 & J., 570: Perry r. HoU, 2 DeG., F. & J., 38; Espin v. Pemberton, 3 DeG. 
 & J., 547: Roberta r. Croft, 2 De G. & J., 1; Atterbury v. AVallis, 
 8 De G., M. & G., 454; Penny v. Watts, 1 Macn. & G.,150; Scott, N. R.,
 
 DIFFEEENT KINDS OF PROPERTY. , 41 
 
 reasonably diligent in the prosecution of Ms inquiries as to 
 the reasons for the possession of the title deeds by one 
 other than the grantor, and a reasonable and satisfactory 
 excuse has been made for the circumstance, this will re- 
 move the imputation of fraud or gross negligence upon 
 which the presumption of notice is founded.' 
 
 §57. Purchaser with Knowledge of Trust. — Where 
 one with knowledge of a trust, or notice thereof sufficient 
 in equity to affect his conscience, purchases from the 
 trustee, the property so purchased will still be subject to 
 the trust, and he will be held to be a trustee for the 
 benefit of the person whose rights he has thus sought to 
 defeat.- 
 
 §58. Mortgagee with Knowledge of Trust. — Upon 
 the same principle, if a mortgagee, with notice of a trust, 
 should obtain a conveyance from the trustee in order to 
 protect his mortgage, the original trust would attach to the 
 title in his hands, and he would not be permitted to reap 
 any advantage by such conveyance. By the purchase he 
 would take the place of such trustee, with reference to the 
 title, and it would be his duty to execute the trust. To 
 allow him to enjoy an advantage from such a transaction 
 would be equivalent to permitting him, in order to save 
 himself, to commit a breach of trust.* 
 
 § 59. Notice to Trustee.— A trustee is chargeable with 
 notice of the equities arising from the trust, and, being 
 a member of a firm, notice coming to him in this manner 
 will affect his partners in the same manner and to same 
 extent as though they had been personally notified,'* for the 
 
 366; Bradley v. Riches, L. R., 9 Ch. D., 189; Hiern v. mil, 13 Ves., 114; 
 Bii-ch V. EUames, 3 Anst., 427; Diyden v. Frost, 3 Myl. & Cr., 670. 
 
 1 Evans v. Biclmell, 6 Ves. Jr., 173; Finch v. Shaw, 19 Beav., 500; 
 Dowle V. Saunders, 2 Hem. & Mill, 242. 
 
 2Maundi-ell v. Maundrell, 10 Ves., 260; 1 Story, Eq. Juris., § 395. 
 
 3 Foster v. Blackstone, 1 Mylne & K., 297 ; Saunders v. Dehew, 3 Vern., 
 271. 
 
 4 Stevens v. Goodenough, 26 Vt., 676.
 
 42 NOTICE TO PUKCHASERS. 
 
 court will not regard the character in which the notice was 
 received.' 
 
 § 60. Notice Prior to Payment. — In order to affect pur- 
 chasers it is not always necessary that the notice should 
 be actualh^ received before the execution and delivery of 
 the conve3^ance. It will be sufficient if given before the 
 payment of the purchase mone}^,"' and when there has been 
 a partial payment before notice received, the purchaser will 
 be affected jpro tanto? 
 
 § 61. Purchaser without, from Purchaser with. No- 
 tice. — AVhere a purchaser acquires the title with notice, 
 actual or constructive, of an adverse title or interest in 
 another, although as between himself and the equitable 
 owner he holds the title charged with a trust in favor of the 
 latter, he may by a conveyance to a 'bona fide purchaser for 
 value, who has no notice of the trusts with which the prop- 
 erty stands charged, effectually cut off the rights of the 
 equitable claimant; for the purchaser without notice from a 
 purchaser who took ivith notice will occupy no worse posi- 
 tion than one who innocently purchases from the first fraud- 
 ulent grantor.* 
 
 § 62. Purchaser with, from Purchaser witliout, No- 
 tice.— So, where the hona fide purchaser conveys to an- 
 other who has notice of the equity at the time of his pur- 
 chase, the title wiU nevertheless pass discharged of the trust 
 to which it was subject in the hands of the first grantor.'^ 
 For to merely protect the title of the first purchaser with- 
 out notice, and hold the property subject to prior equities, 
 whenever it subsequently came to the hands of one who had 
 notice of such equity, would be to give the honest purchaser 
 
 'Barney v. Currier, 1 D. Chap., 315. 
 
 2 Henry v. Raiman, 25 Penn. St., 354; Ringgold v. Bryan, 3 Md. Ch. 
 Dec, 488. 
 
 3 Hardin v. Harrington, 11 Bush (Ky.), 367. 
 
 ^Hawley v. Cramer, 4 Cow., 717; Hardin v. Harrington, 11 Bush 
 (Ky.), 367. 
 
 5Lo\\i;lier v. Carlton, 2 Atk., 242; Cromwell v. County of Sac, 6 Cent. 
 L. J., 209 (U. S.), 1877.
 
 DIFFEEENT KINDS OF PEOPEKTY. 43 
 
 but a fruitless advantage. Such a rule -would deprive the 
 property of nearly its entire market value, because purchas- 
 ers without notice would become more difficult to find as 
 the defect of title became more generally known. 
 
 § 63. Re-pur cliase by Original Mala Fide Purchaser.— 
 The same reasons will not operate in favor of the orig- 
 inal purchaser mala Jlde, when he re-acquires the title 
 after it has passed through the hands of hona fide pm*- 
 chasers. By holding that the trust would re-attach in his 
 hands, but a single possible purchaser is disqualified, which 
 could not materially affect the market value of the prop- 
 erty. Besides, to extend to him protection as an innocent 
 purchaser, because of the purgation of the title by passing 
 through clean hands, would be to facilitate the perpetration 
 of fraud.i 
 
 § 64. Uuregistered Conveyances. — Notwithstanding 
 the statutory provisions by which the registration of con- 
 veyances is required in order to give them vahdity as 
 against subsequent purchasers, these statutes are uniformly 
 construed not to favor those who purchase with notice of 
 prior unregistered conveyances.^ To hold otherwise would 
 be to convert the registry laws, which were originaUy in- 
 tended as a protection against fraud, into the most formi- 
 dable accessories of fraud.^ When a party contemplating 
 a purchase is by information, or other facts that come 
 to his knowledge, put upon inquiry as to the vahdity 
 of the title, he is naturally led to an examination of the 
 record of conveyances, but his inquiries should not end 
 here.* When the matter of which he has received notice 
 is an ujirecorded conveyance, or an equitable interest that 
 does not appear of record, he cannot be said to have made 
 
 1 Kennedy V, Daly, 1 Sch. & Lef., 355; Bovey v. Smith, 1 Ver., 60; 
 Schutt V. Large, 6 Barb., 373; Story, Eq. Jiir., § 410, and cases cited. 
 
 2 See post, §§ 226, 231 et seq., and cases cited. 
 
 3 Story, Eq. Jur., § 395 et seq. 
 
 *Eeynolds v. Ruckman, 35 Mich., 80; Illinois Central R. R. v. McCul- 
 lough, 59IU., 166.
 
 44: NOTICE TO PUECHASERS. 
 
 due inquiry, or to have exercised due diligence, by merely 
 consulting the county records.' 
 
 § Go. How Purchasers May be Notified. — The meth- 
 ods by which notice of prior equities or unregistered con- 
 veyances may be given, so as to affect subsequent pur- 
 chasers, are as various as the means by which knowdedge 
 or information of any fact may be communicated, or by 
 which persons may be led to beheve in the existence of 
 such facts. They include those facts and circumstances 
 which are held to constitute constructive notice, as well as 
 those amounting in the estimation of the court or jury to 
 actual notice, and affect subsequent purchasers and incum- 
 brancers alike. The most obvious and direct manner in 
 which the subsequent party may be warned of the adverse 
 interest is by actual knowledge of the prior conveyance or 
 equity ; for in determining questions of good faith, knowl- 
 edge is regarded as equivalent to notice of the highest de- 
 gree, though it may be otherwise when notice is requisite 
 to perfect, a right, or put the person to whom it is given in 
 default.' Then would naturally follow in their order, express 
 notice, or direct information, oral or written, from some 
 person in possession of actual knowledge ; ' and implied no- 
 tice, or knowledge of collateral circumstances sufficient to 
 put the purchaser or incumbrancer upon inquiry leading to 
 the truth ; * and lastly, such facts as would raise a conclu- 
 sive presumption of law, tliat the party charged with notice 
 had received the same.^ 
 
 iMom-oe v. Eastman, 31 Mch., 283; Wilson v. Hunter, 30 Ind., 466. 
 
 2 Lead. Cas. in Eq., vol. II, part I, 148, 4th Ani. ed. 
 
 3 See ante, §§ 6, 7. 
 
 4 Ante, §§ 11, 27. " Information, from whatever source derived, which 
 would excite apprehension in an ordinary mind, and prompt a person of 
 average pnidence to make inquiry, would be sufficient." Bryant v. 
 Booze, 55 Ga., 438; Swarthout v. Cmtis, 5 N. Y., 301; Jackson v. Cald- 
 weU, ICow., 622; Bunting v. Ricks, 2 Dev. & Batt., 130; Gibbs v. Cobb, 
 7 Rich. Eq., 54; Parish v. Brooks, 4 Brewst., 154; Hinde v, Vattier, 1 
 McLean, 110; 7 Pet., 252; Lawton v. Gordon, 37 Cal., 202; McLeod v. 
 First Nat. Bank, 42 Miss., 99. 
 
 5 Ante, ch. I, part II.
 
 DIFFERENT KINDS OF PEOPERTY. 45 
 
 § 65a. Due Inquiry. — But even when the notice is of 
 this express character, it may fall short of that complete- 
 ness that brings to the purchaser full knowledge of the 
 adverse interest. It may only serve to put him upon in- 
 quiry, and if so, the hona fides of his purchase is to be deter- 
 mined by the diligence with which his inquiries were 
 pursued in search of the truth,^ The party may be required 
 to consult the alleged prior vendor and the vendee,- but 
 cannot rest content with this if the line of inquiry sug- 
 gested can be better followed up with third persons.^ "When 
 visible structures on the land seem to be in the possession 
 of others than the vendor ; ^ when the title deeds are not 
 in the possession of the vendor, Avhere it is customary or 
 usual to find the muniments of title in the possession or 
 under the control of OAvners,'' the fact that a stranger is in 
 
 iPell V. McElroy, 36 Cal., 268; O'Roiirke v. O'Connor, 39 Cal., 442; 
 Witter 17. Dudley, 42 Ala., 616; Dutton i?. Warschauer, 21 Cal., 609; Lit- 
 tletons. Giddings, 47 Tex., 109; Briggs v. Taylor, 28 Vt., 180; Allen v. 
 Poole, 54 Miss., 323; Wood v. Ki-ebbs, 30 Gratt., 708; Cordova v. Hood, 
 17 Wall., 1; Bennett v. Buckan, 61 N. Y., 222; Bush v. Ware, 15 Pet., 
 93; Baker v. BUss, 39 N. Y., 70; Kellogg v. Smith, 26 N. Y., 18; Hehns 
 V. Chadbourne, 45 Wis., 60; Reed v. Gannon, 50 N. Y., 345; Major v. 
 Bukley, 51 Mo., 227; Russell v. Sweezey, 22 Mich., 235. 
 
 2 Espin V. Pemberton, 3 De G. & J. , 547. 
 
 3Hopgood V. Ernest, 3 De G., J. & S., 116; Ratcliffe v. Barnard, L. 
 R., 6 Ch., 652; Broadbent v. Barlow, 3 De G., F. & J., 570; Maxfield v. 
 Burton, L. R., 17 Eq., 15; Greenfield ?;. Edwards, 2 De G., J. & S., 582; 
 Pitcher v. Rawlins, L. R., 11 Eq., 53; Cory v. Eyie, 1 De G., J. & S., 149; 
 Briggs V. Jones, L. R., 10 Eq., 92; Hunt v. Ehnes, 2 De G., F. & J., 
 578; MulUson's Estate, 68 Pa. St., 212. 
 
 *Hervey v. Smith, 22 Beav., 299; Morland v. Cook, L. R., 6 Eq., 252; 
 Davies v. Sear, L. R., 7 Eq., 427; Allen v. Seckham, L. R., 11 Ch. D., 
 790; Suffield v. Brown, 9 Jur. (N. S.), 999; 33 L. J. Ch., 256; Ewart v. 
 Cochrane, 4 Macq., 117; Clements v. WeUes, L. R., 1 Eq., 200; Shackle- 
 ton V. Sutchffe, 1 De G. & Sm., 609; Pyer v. Carter, 1 H. & N., 916; 
 Dann v. Spm-rier, 7 Ves., 231; Wilson v. Hart, L. R., 1 Ch., 463; Grant 
 V. Munt, Coop., 173; Bowles v. Round, 5 Ves., 508; Dyer v. Hargrave, 
 10 Ves., 506; Pope v. Garland, 4 Y. & C, Ex., 394. 
 
 5 Jones V. Williams, 24 Beav., 47; Worthington v. Morgan, 16 Sim., 
 547; Allen v. Knight, 5 Hare, 272; Jackson v. Rowe, 2 S, & S., 472.
 
 46 NOTICE TO PURCHASERS. 
 
 possession of tlie premises/ or other circumstance or infor- 
 mation coming to the knowledge of the purchaser of an 
 interest, right or chiim adverse to that of his vendor,^ are 
 facts which put tlie purchaser upon inquiry. And a party 
 who is thus put upon inquiry, and fails to prosecute such in- 
 quiry in a proper manner, will be conclusive!}'' presumed to 
 have obtained all the information he might liave acquired 
 by diligence, and will be charged with absolute notice of 
 any adverse interests such inquiry would have disclosed.' 
 
 § 6(). Different Kinds of Notice. — Among these differ- 
 ent means of notice are adverse possession, which is con- 
 sidered as actual notice, and in some instances as constructive 
 notice of the possessor's title or interest.* Xotice from title 
 fopers also seems to have been considered as both actual 
 and constructive.* Lis pendens, according to the accepted 
 meaning of the term, is clearh^ notice only by the aid of 
 legal ])resumption.^ When the notice comes to the purchaser 
 in the form of information from one who has actual knowl- 
 edge of the prior title, it seems to stand with some courts 
 
 1 AUen V. Anthony, 1 ]Meriv., 282 ; Holmes v. PoweU, 8 De G., M. & G., 
 572; Hai'dy v. Reeves, 5 Ves., 426; Gordon v. Gordon, 3 Sw., 400; Nor- 
 way V. Rovre, 19 Ves., 144; White v. Wakefield, 7 Sim., 401 ; Johnson v. 
 Clarke, 18 Kans., 157; Miles v. Langley, 1 Riiss. & My., 39; Oxwith v. 
 Plummer, 2 Vern., 636; School Dist. v. Taylor, 19 Kans., 287; Noyes 
 r. Hall, 97 U. S., 34; Tankard v. Tankard, 79 N. C, 654; Crabtree v. 
 Breckenridge, 48 111., 91; Strickland v. Kirk, 51 Miss., 795; Moss v. At- 
 kinson, 44 Cal., 3; Sears v. Munson, 23 Iowa, 380; Phillips v. Costley, 
 40 Ala., 488; Glidewell v. Spaugh, 26 Ind., 819; Bank of Orleans v. 
 Flagg, 3 Barb. Ch., 316; Diehl v. Page, 3 N. J. Eq., 143; Baynard v. 
 Noi-ris, 5 GiU, 468; MuUins v. Wunberly, 50 Tex., 457. 
 
 -Shepardson v. Stevens, 71 111., 646; Buttrick v. Holden, 13 Mete, 355; 
 Stearns v. Gage, 79 N. Y., 102; Buck v. Paine, 50 Miss., 648. 
 
 3Gouverneur v. Lynch, 2 Paige, 300; Brice v. Brice, 5 Barb., 533; 
 Tutlev. Jackson, 6 Wend., 213; McLanghhn v. Shepherd, 32 Me., 143; 
 Hardy v. Morse, 32 Me., 287; Burt v. Cassety, 12 Ala., 739; Scrogginsv. 
 Dougal, 8 Ala., 382; Brush v, Halloway, 2 J. J. Marsh., 180. 
 
 ^Post, ch. IV. 
 
 sPos^, ch. V. 
 
 6 Tost, ch. VI.
 
 DIFFERENT KINDS OF PEOPEKTT. 47 
 
 upon nearly the same footing as actual knowledge bi^ought 
 home to the person to be charged. Indeed there seems no 
 good reason why one should not purchase at his peril, in 
 the face of such information, regardless of whether it comes 
 from a party in interest, or one who tenders gratuitous ad- 
 vice, provided he be one who Imoios or professes to know 
 Avhereof he speaks.^ 
 
 § 67. Purchasers of Cliattels.— The general doctrine 
 by which pm'chasers of real estate are affected with notice 
 of prior unregistered instruments affecting the title, or of 
 prior equities, applies in substantially the same manner and 
 to the same extent to purchasers of chattels in the posses- 
 sion of the vendor at the time of the sale. That is, when 
 the purchase is made 'bonafide from one who has the legal 
 title, or who has been clothed by the owner with all the in- 
 dicia of ownersliip or authority to sell, the purchaser would 
 be protected.- But if the purchase be made with notice of 
 title or interest in another, or with a knowledge of such cir- 
 cumstances as would suffice to put liim upon inquiry leading 
 to actual knowledge of such interest, his purchase would be 
 fraudulent as against the. true owner, and he would not be 
 permitted to profit by it.'' 
 
 § 68. Innocent Pledgee. — The case of Crocker v. Crocker* 
 is an illustration of both propositions in the next preced- 
 ing section. There the plaintiff being indebted to a cor- 
 poration on account of unpaid assessments on shares of 
 
 1 Lawton v. Gordon, 37 Cal., 203. 
 
 2Saltus V. Everett, 20 Wend., 267; Crocker v. Crocker, 31 N. Y., 507; 
 Western Trans. Co. v. Marshall, 37 Barb., 509; Parker v. Middlebrook, 
 24 Conn., 207, 
 
 3 Crocker v. Crocker, 31 N. Y. , 507 ; Wooster v. Sherwood, 25 N. Y. , 278 ; 
 Ploughboy, 1 Gall., 41 ; McAnelly v. Chapman, 18 Tex., 198. In general, 
 in order to affect subsequent purchasers of chattels, or creditors of the 
 seller, with notice of the prior sale, there must be an open and unequiv- 
 ocal change of possession from the seller to the prior purchaser. 
 Bishop V. O'Connell, 56 Mo., 159; Claflinv. Eosenberg, 42 Mo., 439; Lesem 
 V. HeiTiford, 44 Mo., 323. 
 
 4 31N. Y., 507.
 
 48 NOTICK TO PUECnASEES. 
 
 its stock, and being a creditor of the corporation to an 
 amonnt almost equal to the amount of his unpaid assess- 
 ments, it was agreed that upon a sale of his stock for what 
 remained unpaid he was to receive credit for the amount 
 due him, and then pay in the balance. In pursuance of 
 this arrangement, defendant, who was plaintiff's brother, 
 at the instance and request of plaintiff, attended the sale 
 and bid in the stock, but was only required to pay, the 
 amount remaining after the deduction of the amount due 
 plaintiff from the corporation. The legal title was vested 
 in the defendant, who had all the indicia of absolute owner- 
 ship ; but as between himself and brother he held as trustee 
 for the latter. It was also held that he had no title or in- 
 terest which he could convey to a purchaser with notice of 
 the trust, so as to divest the beneficial interest of his cestui 
 que trust; but where one who had neither actual nor con- 
 structive notice of such interest received certain shares of 
 such stock in pledge from the trustee, parting with value 
 therefor, and taking the same in the honest belief that they 
 were the property of such trustee, the innocent party who 
 was thus misled by the fraudulent acts of the trusted agent 
 of the plaintiff was entitled to protection in his possession 
 of the stock. 
 
 § 69. Mere Possession Not Conclusive Evidence of 
 Title. — The case of Wooster -v. Sherwood ^ was where the 
 subject of the sale was a quantity of barley in a brew- 
 ery. The vendor afterwards sold the brewery and contents, 
 giving notice to the purchaser of the specific quantity of 
 barley to which plaintiff was entitled. This passed no title 
 to any portion of plaintiff's barley to the purchaser of the 
 brewery, and a sale and delivery of the same, by the latter, 
 to an innocent purchaser for value, was held equally invalid 
 to divest plaintiff's title, for the reason that the vendor had 
 not been clothed by plaintiff with any apparent authority 
 to sell, or any power to exercise control over the property. 
 
 125N. Y., 278.
 
 DIFFERENT KINDS OF PKOPEETT. 40 
 
 § 70. Secret Instructions to Broker. — It has been else- 
 where held that where one purchased goods and chattels 
 and had them transferred to a broker whose business it was 
 to sell such merchandise, and the broker was authorized by 
 the owner to assume the apparent right to dispose of the 
 property in the ordinary course of trade, the secret instruc- 
 tions to the broker would not affect the rights of a pur- 
 chaser who had no notice of them.^ 
 
 § 71. Secret Lien. — In Western Transportation Com- 
 pany V. Marshall,^ the sale was of a quantity of grain, which 
 the court held had been duly delivered by plaintiff on board 
 defendant's ship, accompanied by such written indicia as, 
 together with the possession of the grain, would lead others 
 to believe that the purchaser was the owner. Under these 
 circumstances it was held that one who purchased without 
 notice of the non-payment of the purchase money, which, 
 according to the contract, was to be paid on delivery, and 
 the grain having been in the possession of the first pur- 
 chaser for four days, was a hona fide purchaser and within 
 the protection of the law. But the learned judge, in ren- 
 dering the opinion in this case, goes to the extent of de- 
 claring that "where the owner voluntarily delivers the 
 possession of merchandise to a vendor, subsequent 'bona fide 
 purchasers from such vendor, and those incurring liabilities 
 and making advances on the faith of such possession, or 
 standing in the relation of hona fide purchasers, are entitled 
 to protection against the claims of the former owner, 
 although the sale he conditional and the purchase price not 
 paid." 
 
 § 72. Conditional Sales. — While it may be true, as it 
 seems to have been held in the case last cited, that a sale may 
 be absolute, although the terms of payment are not complied 
 with by the purchaser; and that the subsequent vendee, 
 without notice of such non-compliance, will be protected as 
 an innocent purchaser, the doctrine has been established by 
 
 1 Pickering v. Busk, 15 East, 38, 
 
 2 37 Barb., 509. 
 
 4
 
 50 NOTICE TO PURCHASEKS. 
 
 a long line of decisions, that where the sale is conditional^ 
 in the sense that the property in the chattels is not to pass 
 until the performance of the conditions, the mere surrender- 
 ing of possession to the conditional vendee will not amount 
 to such apparent authority to dispose of the goods as will 
 enable him to give to a purchaser a title superior to that by 
 which he held. In other words, until the goods are paid 
 for (if that be the condition), they belong to the original 
 owner, and although the purchaser from the conditional 
 vendee should take without notice of the absence of title 
 in his vendor, the owner may reclaim the goods.^ 
 
 § 73. Pledge. — So where property has been deposited 
 with a person as a pledge to secure the payment of a sum 
 of money in the future, or to answer for the depositor's 
 default in the performance of some other act of ])ecuniary 
 benefit to the pledgee, the contract between the parties will 
 govern as to the character of the pledgee's possession ; and 
 should he transfer such possession to another, and attempt 
 at the same time to transfer the title, his act, being in con- 
 travention of the terms of the contract, would be nugatory, 
 so far as it affected the pledgor's right to redeem, although 
 the person to whom the transfer was made had no notice of 
 the owner's claim or title.- In the case cited, the pledge was 
 of certificates of shares of stock, to which were attached a 
 blank power of attorney, authorizing the attorney to sell the 
 stock. ISTotwithstanding that the pledgee, in violation of 
 the terms of the contract, by filling out the power of attor- 
 ney, clothed himself with the apparent jus disjponendi^ it 
 
 1 Clark V. Wells, 45 Vt., 4; Hotchkiss v. Hunt, 49 Me., 213; Crocker v. 
 Gullifer, 44 Me., 491 ; Haa-t v. Carpenter, 24 Conn., 427 ; Forbes v. Marsh, 
 15 Conn., 384; Morris v. Rexford, 18 N. Y., 552; Strong v. Taylor, 2 Hill 
 (N. Y.), 326 ; Riddle v. Coborn, 8 Gray, 241 ; BaiTett v. Pi-itchai-d, 2 Pick., 
 512; Wlaitwell v. Vincent, 4 Pick., 449; Pi-ice v. Jones, 3 Head, 84; 
 Fifield V. Ebner, 25 Mich., 48; Dunbar v. Rawles, 28 Ind., 225; Baker v. 
 Hall, 15 la., 277; Griffin v. Righ, 44 Mo., 326; Little v. Page, id., 412; 
 West J. R. R. Co. V. Trenton Car Works Co., 32 N. J. L., 515; MorriU v. 
 Moulton, 40 Vt., 242; Johnson v. Powers, id., 611. 
 
 -McNeU V. Tenth Nat'l Bank, 55 Barb., 59.
 
 DIFFERENT KINDS OF PEOPEETY. 51 
 
 was held that this did not authorize him to sell without 
 complying with the legal requirements in case of the sale 
 of a pledge, such as notice to, and demand of, the pledgor ; 
 and a sale to an innocent purchaser in fraud of the rights of 
 the pledgor would not divest the title of the latter.^ 
 
 § 74. Condition May be by Parol. — The case of Clark 
 ■V. "Wells 2 was where a coach had been left with a me- 
 chanic for repair, and he supplied new wheels to the 
 vehicle, which Avere by parol agreement to remain his prop- 
 erty until paid for. Before paying for them, however, the 
 owner sold the coach to an innocent purchaser, who resold 
 it to another ; and although neither had notice of the me- 
 chanic's claim to the wheels, it was held that in the ab- 
 sence of evidence showing laches on his part, he might 
 reclaim them from the last purchaser. 
 
 § 75. Property Keclaimed in an Altered State. — An- 
 other example of the effect given to conditional sales, 
 Avhere uninformed purchasers or creditors would be least 
 likely to suspect the property and the possession to be in 
 different persons, is the case of Barret v. Pritchard.* There 
 the claimant had sold wool to a manufactiu'er, upon condi- 
 tion that it was to be paid for in six months, and until paid 
 for, whether it remained in its original condition, was man- 
 ufactured, or in process of manufacture, into yarn or cloth, 
 it should remain the property of the vendor. This was 
 held to be a vaUd contract, and one which could be enforced 
 by the conditional vendor, by reclamation of the property 
 as against creditors without notice. 
 
 § 76. Caveat Emptor. — While it is not denied that 
 possession of personal property is prima facie evidence of 
 ownership, it is quite evident from the foregoing authori- 
 ties that, except where the statute interposes for the pro- 
 tection of innocent purchasers, such property may be held 
 
 1 See, also, BaUard v. Burgett, 40 N. Y., 314. 
 
 2 45 Vt, 4. 
 
 3 2 Pick., 513.
 
 52 NOnCE TO rUKCIIASEKS. 
 
 subject to secret claims, and the title will be transferred 
 subject to the doctrine of caveat emptor} 
 
 § 77. Chattel Mortgages. — The title to personal chat- 
 tels is only affected by the registry laws, when the property 
 is mortgaged, or conveyed in trust as security for the dis- 
 charge of an obligation, for the benefit of the mortgagee or 
 beneficiary mentioned in the deed of trust.^ As respects 
 the registry of chattel mortgages, and the effect of such 
 registry as notice to subsequent purchasers and incum- 
 brancers, the rules are substantially similar to those recog- 
 nized where conveyances of real estate are in question. In 
 some of the states, however, there is a difference in the 
 effect of the registiy of instruments affecting the titles to 
 these different kinds of property, in this: That unregis- 
 tered chattel mortgages are absolutely void, even as against 
 subsequent purchasers or creditors with actual notice 
 thereof. They differ from conve3^ances or incumbrances of 
 real estate, for the reason that their validity depends as 
 much upon their proper acknowledgment and registration 
 as upon their execution and deliver}'-.'^ 
 
 § 78. Possession of Chattels. — What is elsewhere said 
 concerning the doctrine of notice of prior claims to real 
 estate, which comes from knowledge or information of the 
 possession of the property by the adverse claimant, will 
 apply with still greater force, so far as it favors such doc- 
 trine, to the possession of personal chattels. 
 
 § 79. Clioses in Action. — Choses in action which in 
 equity, according to the law merchant, or under the favor- 
 ing provisions of statute law, are assignable, occupy a posi- 
 
 iPannlee v. Catherwood, 36 Mo., 479. 
 
 2 Mueller v. Engeln, 13 Bush (Ky.), 441. 
 
 3 But chattel mortgages will only be declared void as against subse- 
 quent i)urchasers for value. The provision of the statute requiring such 
 instrumGnts to be recorded, in order to give them prioi-ity over the 
 claims of subsequent purchasers, is not intended for the benefit of those 
 who have paid nothing. Kohl v. Lynn, 34 Mich., 360. The effect of re- 
 cording a chattel mortgage, as notice to pm-chasers, will follow the chat- 
 tels when removed to another state. Hall v. Pillow, 31 Ark., 32.
 
 DIFFEREISTT KINDS OF PKOPEETY. 53 
 
 tion with reference to tlie question of notice essentially 
 different from that occupied by any other species of prop- 
 erty. "When the subject of the transfer is not negotiable, 
 according to the law merchant, the equities subsisting 
 against it in the hands of the assignor follow it into the 
 hands of the assignee, whether he has notice of such equi- 
 ties or not. Where the transfer of a non-negotiable secu- 
 rity involves nothing further than a mere change of title, 
 the purchaser is at once subrogated to all the rights, and 
 assumes all the liabilities, attendant upon the ownership of 
 the instrument.^ 
 
 § 80. Negotiable Instruments. — But respecting nego- 
 tiable instruments, and their transfer, the purchaser occu- 
 pies a more advantageous position than the purchaser of any 
 other species of property. It is true that even he will be 
 affected by notice of equities which would have defeated 
 the security in whole or in part, in the hands of the orig- 
 inal paj^ee ; but so favorable is the law to the facile transfer 
 of negotiable paper, that it Avill not suffer its assignability 
 to be obstructed by a merely technical notice to the pur- 
 chaser that the obligor, as between himself and the obligee, 
 has a defense to the demand. The notice of defenses to 
 negotiable paper, to affect purchasers, must therefore be 
 actual and not merely constructhe, and must be of a higher 
 degree than circumstances sufficient to put a man of ordi- 
 nary prudence on inquiry .^ 
 
 1 Sanborn v. Little, 3 N. H., 539. 
 
 2 Swift V. Tyson, 16 Pet., 1 ; Goodman v. Simonds, 20 How., 343 ; Bank 
 of Pittsburgh v. Neal, 32 How., 96; Murray v. Lardner, 2 Wall., 110; 
 Magee v. Badger, 34 N. Y., 247; Belmont Branch Bank v. Hodge, 35 N. 
 Y., 65; Seybel v. Nat'l Cur. Bank, 54 N. Y., 288; Phelan v. Moss, 67 
 Penn. St., 59; Lake v. Reed, 29 la., 258; Worcester Co. Bank v. Dor- 
 chester Bank, 10 Cush., 488; Brush v. Scribner, 11 Conn., 388; Wool- 
 folk V. Bank of America, 10 Bush, 504; Horton v. Bayne, 52 Mo., 531; 
 Merrick v. Phillips, 58 Mo., 436; Hamilton v. Marks, 63 Mo., 167; Law- 
 son V. Weston, 4 Esp., 56; Johnson v. Way, 4 Am. Law, 758; Morehead 
 V. Gilmore, 77 Penn. St., 118; Peacock v. Rhodes, 2 Doug., 611; Crook 
 V. Jadis, 5 Barn. & Ad., 909; Backhouse v. Harrison, 5 Barn. «& Ad.,
 
 54 NOTICE TO PURCHASERS. 
 
 §81. Lost Bill. — The doctrine laid do-^ii iii the pre- 
 ceding section was substantially announced by Lord Ken- 
 ton in the early case of Lawson v. "Weston,^ where the 
 question arose upon a lost bill, which had been discounted 
 without actual notice of the rights of the original payee. 
 It was sought to charge him. with notice by proof that the 
 loss was advertised, and payment stopped by notice to the 
 drawee. As the bill came to the possession of the holder 
 who had discounted it, without fi'aud on his part, the ad- 
 vertisement was held not sufficient to bind hun. The ear- 
 lier case of Miller v. Eace- is cited in support of the same 
 principle, but as that was decided with reference to a bank 
 bill which circulated as cash, it could have no application in 
 considering the question of notice as it affects commercial 
 paper. 
 
 § 82. Holder Affected Only When Grossly Negligent.— 
 This doctrine was shaken for a time in England by a 
 case in which it was decided that where one discounted a 
 
 1098; Goodman v. Harvey, 4 Ad. & El,, 870; Uther v. Rich, 10 Ad. & 
 El., 784; Ai-bouin v. Anderson, 1 Ad. & El. (N. S.), 498; Ti-ieber v. Com'l 
 Bank of St. Louis, 31 Ark., 128; Weit v. Thayer, 118 Mass., 473. An 
 acceptor of a bill, accei^ted in blank, has been held chargeable with no- 
 tice of any fraudulent use made of it. Kerr on Fraud & Jlistake, 248 ; 
 Hatch V. Searles, 24 L. J. Ch., 22; Sharp v. Arbuthnot, 13 Jur., 219. It 
 is not every negotiable instiniment that is protected as bills of exchange. 
 The mere fact that they are negotiable, m the sense that the property in 
 them passes by indorsement, does not seem to requu-e actual notice, or 
 notice so express that pui'chasers could not take them without gross 
 and culpable negligence, to render them subject to the original defenses 
 against them in the hands of such purchasers. This immunity is pecul- 
 iar to instruments known to the law merchant as commercial paper. 
 It is held not to apply to bills of lading, which are, by statute, negotiable 
 "in the same manner as bills of exchange." And hence, where tha 
 piirchaser of such a bill had reason to beheve that his vendor was not 
 the owner thereof, or that it was held to seciu'e an outstanding draft, 
 he was not regarded as a bona fide purchaser, nor entitled to hold the 
 merchandise covered by the bill, against its tnie owner. Shaw v. Rail- 
 road Co., 101 U. S., 557. 
 
 i4Esp., 56. 
 
 21 Burr., 453.
 
 DIFFEKENT KINDS OF PEOPEKTY. 55 
 
 bill wliicli had been advertised as lost, in the ordinary course 
 of his business, under circumstances which ought to have 
 excited the suspicions of a prudent man, he was not entitled 
 to recover against the indorser.^ But in a subsequent case 
 this uncertain and vague test was expressly repudiated, with 
 the concurrence of all the judges of the court of king's 
 bench, and it was held incumbent upon the drawer of an 
 accommodation bill upon which suit was brought by the in- 
 dorsee, in order to avail himself of the defense that the bill 
 was fraudulently put in circulation, to show that the holder 
 had been guilty. of gross neghgence.^ This case was af- 
 firmed at the same term,^ where the case of Gill v. Cu- 
 bitt,^ and others adhering to the doctrine there announced, 
 were expressly overruled. 
 
 § 83. Bad Faith Requisite to Defeat Holder's Rights. — 
 In a still later case before the same court, the question 
 of gross negligence was held proper for submission to the 
 jury in a suit between the indorser for value of a bill of 
 exchange and a prior party thereto; but it was given as 
 the opinion of the court that this alone would not be a suf- 
 ficient answer where the holder had given value for the 
 bill. Bad faith on the part of the purchaser was regarded 
 as an essential fact to be established by the defendant, and 
 though gross negligence might be evidence of such bad 
 faith, it did not amount to the same thing.^ Subsequent 
 Enghsh decisions have reaffirmed this doctrine, and it is now 
 regarded as the settled law of England.^ 
 
 § 84. Purchaser Without Notice Protected. — In Swift 
 V. Tyson,'' the question of notice was not fairly at issue; 
 but it was there laid down by Mr. Justice Stoet, as a 
 general rule, that a purchaser of negotiable paper, in the 
 
 iGill V. Cubitt, 3 Barn. & Cres., 466, 
 2 Crook V. Jadis, 5 Barn. & Ad., 909. 
 3 Backhouse v. Harrrison, id., 1098. 
 * Supra. 
 
 5 Goodman v. Harvey, 4 Ad. & Ell., 870. •- 
 
 6 Supra, % 80. 
 UBPet, 1.
 
 00 NOTICE TO PUKCHASERS. 
 
 ordinary course of business and for a valuable considera- 
 tion, without notice of facts which would impeach its vahd- 
 ity between the antecedent parties, if he took it under an 
 indorsement made before the same became due, held the 
 title unaffected by these facts, and might recover thereon, 
 although, as between the original parties, the transaction 
 was without legal validity. This doctrine was there de- 
 clared by the learned judge to be so long and so well estab- 
 lished, and so essential to the security of negotiable paper, 
 that it had been laid up among the fundamentals of the 
 law, and no longer required argument or the citation of 
 authority in its support.^ 
 
 § 85. Same — Knowledge a Question of Fact. — Incit- 
 ing the above case, and maldng copious quotations from the 
 opinion of the learned judge, Mr. Justice Cliffoki^, in Good- 
 man V. Simonds,- interprets the word 7iotice, as there em- 
 ployed, to be the same as knowledge^ and deduces therefrom 
 the rule that "Nothing less than proof of knowledge of 
 such facts and circumstances can meet the exigencies of such 
 a defense. * * * And the question whether the party 
 had such knowledge or not is a question of fact for the 
 jury. * * * And the proper inquiry is, did the party 
 seeking to enforce the payment have knowledge, at the time 
 of the transfer, of the facts and circumstances which im- 
 peach the title, as between the antecedent parties to the in- 
 strument?^ And if the jury find that he did not, then he is 
 entitled to recover, unless the transaction was attended by 
 bad faith, even though the instrument had been lost or 
 stolen." ' 
 
 1 SwaU V. Clarke, 51 Cal., 227. 
 
 2 20 How., 343. 
 
 3 20 How., 365. 
 ^ 20 How., 366. 
 
 5 Knowledge of the infirmities of a bill or note coming to one of two 
 partners in a jirivate bank will be imputed to the partnership, so that the 
 bank cannot be a hona fide holder of such paper. Stockdale v. Keyes, 
 79 Pa. St., 251.
 
 DIFFEKENT KINDS OF PROPERTY. 57 
 
 § 86. Facts Which Excite Inquiry Held Inatlmissible. — 
 
 In AVoolfolk V. Bank of America,^ Judge Peyor, in render- 
 ing the opinion of the court, says : " In a case like this, the 
 defense must aUege and prove a knowledge of the facts con- 
 stituting the fraud on the part of the holder — that is, such 
 facts as would satisf}^ one of ordinary prudence and judg- 
 ment of the infirmity in the biU ; and the evidence of such 
 facts and circumstances on the part of the holder, as would 
 lead to an inquiry by which only the facts constituting the 
 fraud might be ascertained, is clearly inadmissible." The 
 question of negligence, whether gross or otherwise, or dili- 
 gence on the part of the purchaser, is here allowed to have 
 no influence whatever, even as a fact or circumstance by 
 which a participation in the fraudulent ince]Dtion or circula- 
 tion of the instrument might be established or disproved. 
 
 § 87. Circumstances Which Put Purchaser on His 
 Guard. — In Cone v. Baldwin,- which was an action by the 
 purchasers of a negotiable note against the maker, it is 
 conceded that the defendant was not bound to prove that 
 the plaintiffs purchased with full and certain knowledge of 
 the want or failure of consideration ; but that if the circum- 
 stances attending the transfer were such as to put them 
 upon their guard, they were bound to make inquiry ; and 
 that if they did not they purchased at their peril. Never- 
 theless, it was held in that case that the mere statement of 
 the pa3"ee, in transferring the note by delivery to the plaint- 
 iffs, that they purchased at their own risk, was not a cir- 
 cumstance rendering it incumbent upon them to inquire 
 into the consideration. The point conceded in this case 
 may hardly be taken as a contradiction of the doctrine laid 
 down in the cases previously cited ; though the principle 
 upon which those cases were determined has not passed un- 
 challenged in this country.^ It has not, liowever, met with 
 sufficient opposition to change the current of authority, 
 
 1 10 Bush, 504. 
 
 2 12 Pick., 545. See, also, Goddard v. Lyman, 14 Pick., 268. 
 
 sPringle v. Pliilliijs, 5 Sand., 157; Hamilton v. Marks, 53 Mo., 78.
 
 53 NOTICE TO PURCHASEKS. 
 
 which lias borne constantly in a direction favorable to pur- 
 chasers of negotiable paper. One of the latest and best 
 considered cases upon the subject presents the unusual 
 feature of an entk-e change of view by the same coiu*t, not 
 only in respect to a case involving the same question, but 
 in deciding the same case. The judgment of the trial court 
 had been reversed and the cause remanded. The case went 
 up the second time with instructions given in accordance 
 with the former ruling of the appellate court. The first 
 decision of reversal was expressly overruled and the judg- 
 ment again reversed.^ Judge WAG^'ER, in rendering the 
 opinion in this case, makes an able review of all the most 
 important cases, both English and American, and justifies 
 the departure of the court fi*om the former ruling in the 
 same case, upon principle as well as authority ; there having 
 been several cases decided subsequent to the first hearing 
 in Hamilton v. Marks, where a doctrine was announced in- 
 consistent with that under revicAV, although the case was 
 not expressly overruled.- The conclusion reached by the 
 learned judge is certainl}" in harmony with the ^dews ex- 
 pressed by the courts of last resort of the principal com- 
 mercial states of the Union as well as the supreme court of 
 the United States.^ 
 
 1 Hamilton v. Marks, 63 Mo., 167, But in Pajme v. Flournoy, 29 Ark., 
 500, it is iield that it appearing from the note that it was made payable 
 to an executrix in her representative capacity, was notice that it was 
 assets in her hands. 
 
 ^Horton V. Bayne, 53 Mo., 531; Corby v. Butler, 55 Mo., 398; Merrick 
 V. PhilHps, 58 Mo., 436. 
 
 3 The nile is quite general, so far as the number of authorities go, 
 that one whose name appears only on the back of a note will be re- 
 garded i)rima fade as a maker. 1 Dan'l on Negot. Inst., § 713a. 
 Citing Eey v. Smipson, 23 How., 241; Good v. Martin, 95 U. S., 95; 
 Sylvester v. Downer, 20 Vt., 355; Union Bank v. Willis, 8 Mete. 
 (Mass.), 504 ; Draper v. Weld, 13 Gray, 580 ; Hawkes v. Phillips, 7 Gray, 
 284; Woods v. Woods, 127 Mass., 141; National Pemberton Bank v. 
 Longee, 108 Mass., 371; Perkins v. Barstow, 9 R. I., 507; Baker v. Rob- 
 inson, 63 N. C, 191; Robmson v. Bartlett, 11 Minn., 410; Massey v. 
 Turner, 3 Houst., 79; Weatherwax v. Pame, 2 Mch., 555; Rotschild v. 
 Grix, 31 :inch., 150; Herbage v. McEntee, 40 Mich., 337; Sibley v. Mus-
 
 DIFFEEENT KINDS OF PEOPEETT. 59 
 
 § 88. Bad Faitli an Inference of Fact.— There seems to 
 be a peculiarity common to nearly all the cases in which this 
 question of notice is raised. The inference of notice which 
 is sought to be drawn from circumstances sufficient to put a 
 prudent man upon inquiry is one of law and not of fact. 
 The only question submitted to the jury by the objection- 
 able instruction is whether there existed such circumstances, 
 and from these, if found, the com't is asked to instruct the 
 jury that the legal inference of notice follows. It is fi'e- 
 quently asserted in those cases requmng actual notice of the 
 facts urged by the maker or drawer of negotiable paper, 
 that the question of knowledge or notice is one of fact; 
 and it is difficult to imagine an issuable fact which is not 
 susceptible of proof by the evidence of circumstances. It 
 ma}^, therefore, be fairly deduced from the authorities, that 
 whatever is sufficient to satisfy the jury that the purchaser 
 took the security in bad faith, or that he was wilfully blind 
 to the circumstances impeaching its validity, will warrant 
 the inference that he had actual notice of the facts.^ This 
 
 kegan N. B., 41 I\Iich., 196; Moynahan v. Hanford, 43 IMicli., 330; Childs 
 V. Wyman, 44 Me., 433; Martin v. Boyd, 11 N. H., 885; Carpenter v. 
 Oaks, 10 Rich., 17; Peckliam v, Gilman, 7 Minn., 449; McComb v. 
 Thompson, 3 Minn., 139; Scliley v. Merrit, 37 Md., 353; Norris v. Des- 
 pai-d, 38 Md., 491 ; Walz v. Alback, 37 Md., 404; Ives v. Bosley, 35 Md., 
 263; Third N. B. v. Lange, 51 Md., 138; Barr r. MitcheU, 7 Oreg., 346; 
 City N. B. V. Goodrich, 3 Col., 137; Best v. Hoppie, 3 Col., 139; Nathan 
 V. Sloan, 34 Ark., 534; Houghton v. Ely, 36 Wis., 181; Commonwealth 
 V. Powell, 11 Gratt., 838; Douglas v. Scott, 8 Leigh, 43; Watson v. Hurt, 
 6 Gratt., 633; Orrick v. Colston, 7 Gratt., 189; Woodward v. Foster, 18 
 Gratt., 213; Mammon v. Hartman, 51 Mo., 168. And in Missouri it is 
 held that such an indorser may be so held by an innocent purchaser be- 
 fore maturity, who has caused such note to be protested for non-pay- 
 ment and notice to be given to the indorser, as such protest and notice 
 are not competent evidence of notice of an agreement between the 
 l)ayee and the prima facie maker, that the latter should only be held as 
 an accommodation indorser. Chaffee v. Memphis, etc., R. Co., 64 Mo., 
 193. 
 
 jPackwood v. Gridley, 39 111., 388; Buckner v. Jones, 1 Mo. App., 538; 
 Edwards v. Thomas, 3 id., 382; Clerks' Savings Bank r. Thomas, id., 
 367. In this connection, the case of Cass County v. Greene (66 Mo., 498)
 
 60 NOTICE TO PUKCHASEKS. 
 
 rule does not involve the vagueness and uncertainty of the 
 doctrine so often insisted upon, and, as we have seen, so 
 generally repudiated, that the purchaser of negotiable se- 
 curities is to be charged with notice of their latent infirmi- 
 ties merely by the existence of circumstances sufficient, in 
 the opinion of the jury, to put a man of ordinary prudence 
 upon inquiry. 
 
 is a noteworthy example. Tliis was a proceeding by injunction to pre- 
 vent the negotiation of certain fraudulently issued bonds in the hands 
 of defendant, who claimed to be an innocent pm-chaser for value before 
 maturity. The court, in aflSLrming the decree enjoining the ti'ansfer of 
 the bonds, based its judgment upon the gi'ound that defendant had 
 actual notice of the infirmities of the bonds, though there was no evi- 
 dence of such actual notice other than the inferences to be di-awn from 
 the conduct of defendant, and his oiiportunities for arriving at a knowl- 
 edge of the facts. Defendant was not the fii-st purchaser, and sought to 
 shelter liimself under the absence of notice, both to himself and to the 
 first pm-chaser. But the facts and cucumstances from wliich notice to 
 the defendant was inferred pointed \vith even more unmistakable direct- 
 ness to the fii"st purchaser, as having notice of the fraud with which the 
 securities were tainted. The bonds were first purchased from one of the 
 persons originally concerned in then* fraudulent issue, by a banking 
 copartnership, and the notice imputed to the fii-m was shown by purely 
 cu-cumstantial evidence to have been communicated to one of its mem- 
 bers. The decision in this case was held not to be in conflict with the 
 adjudication of the same question, last theretofore made by the same 
 court, where it was held, in substance, that facts and chcumstances com- 
 ing to the knowledge of a pirrchaser for value of negotiable paper, suffi- 
 cient to put a man of ordinary pnidence upon inquuy, would not suffice 
 to affect the paper in his hands if purchased before matiu'ity. Hamil- 
 ton r. Mai'ks, 63 Mo., 167; supra, § 87. Though the facts and circimi- 
 stances rehed on in tliis case were such as would tend to put a purchaser 
 upon inquuy, and the defendant testified to his want of knowledge prior 
 to his purcliase, the inference drawn from the chcumstances was that, 
 as a matter of fact, he had received notice when he made the purchase 
 of the bonds. To prove notice or knowledge in a case of this kind does 
 not require evidence of a higher character than what would be sufficient 
 to establish any other disputed fact. In transactions of this kind, where 
 the omLS of showing good faith is cast upon the purchaser of negotiable 
 pai^er, it will not be sufficient for him to show that he did not know of 
 the infirmities of the paper so long as it appears that he believed in their 
 existence. And the fact of such behef might readily be inferred from 
 evidence tliat he had reason so to believe.
 
 DIFFEKENT KINDS OF PEOPEETY. 61 
 
 §89. Stolen Securities — Ayoidaiice of Knowledge. — 
 
 In one of the later cases where this question was exam- 
 ined by the commissioner of appeals of the state of New 
 York, in commenting upon the error of the trial court 
 in excluding evidence which, it was alleged, tended to prove 
 good faith on the part of the purchaser, undue weight seems 
 to have been given to what might be, in cases disclos- 
 ing parallel facts, a wilful avoidance of the knowledge 
 which, if communicated, would have rendered the pur- 
 chase an act of bad faith.^ There printed notices of the 
 larceny of certain negotiable securities were left at the 
 place of business of the banking corporation sought to be 
 charged, prior to the purchase of the stolen secm'ities, and 
 one of the excuses deemed admissible in evidence, for the 
 utter disregard of such notices by the officers of the bank, 
 was that the exigencies of their business were such, and their 
 deahngs in such securities so extensive, that the time could 
 not be spared to read and record the large number of such 
 notices left at their place of business, warning them of the 
 stealing- of similar securities. The exigencies of one's own 
 business, when adopted by him, as an absolute standard by 
 which his duty to others is to be measured, seems fraught 
 with danger to all honest people except the one who adopts 
 it. A banking institution in the city of E"ew York, under- 
 stood to be dealing so largely in negotiable securities that 
 its officers were justified in ignoring all warnings with re- 
 spect to stolen securities, would be able to offer absolute 
 security to thieves, 
 
 § 90. Inquiry Excited by Inspection of Paper. — The 
 principle upon which knowledge or information of facts 
 merely sufficient to put the party upon inquiry may be 
 ignored has no application where the knowledge is derived 
 from an inspection of the instrument itself, and points di- 
 rectly to a defect which requires explanation from the 
 holder.2 Neither does it apply where the inquiry excited 
 by circumstances may be prosecuted to knowledge, by an 
 
 iSeybel v. Nat. Cur. B'k, 54 N. Y., 288. 
 
 2 Ayer v. Hutchins, 4 Mass., 370; Hall v. Hale, 8 Conn., 336.
 
 62 NOTICE TO PUECnASERS. 
 
 inspection of the instrument. As where the purchaser has 
 knowledge of facts showing that certain secimties have 
 been lost by tlie holder, or that he has been fraudulently 
 deprived of the possession thereof, and the facts of which 
 he has Imowledge include a description of the lost instru- 
 ments, by numbers or other distinguishing marks ; here in- 
 quiry may be said to be necessary in order to identify an 
 instrument of the general character of those lost or stolen 
 which may be offered him as one of the missing securities. 
 The inquiry, however, need extend no further than the face 
 of the instrument ; but if it falls short of this, he purchases 
 at his peril. ^ 
 
 §91. When General Notice Snffleient.— In Craft's 
 Appeal," two kinds of notice are recognized as sufficient to 
 affect purchasers of negotiable paper, transferred before 
 due. These are styled " particular or explicit," and '• gen- 
 eral or implied," corresponding substantially to our classifi- 
 cation of express and implied.'* And it is there held that a 
 wilful or fraudulent failure to inquire into circumstances 
 known to be such as to invite inquiry would warrant the 
 jury, if they believed from the evidence that such absti- 
 nence was from the belief that inquiry would result in find- 
 ing the note invalid, in regarding it as a case of general 
 notice. And though mere negligence, however gross it may 
 be, is not regarded as amounting to wilful or fraudulent 
 blindness, it is mentioned as proper for submission to the 
 jury in connection with other circmnstances tending to 
 prove such general notice ; but if, notwithstanding the ab- 
 sence of such caution and prudence in making the purchase 
 as should be exercised in the ordinary affairs of life, the 
 transaction was honest on the part of the purchaser, and in 
 the regular course of his business, he will hold the paper 
 discharged of prior equities.* 
 
 1 Howry v. Eppingef, 34 Mich., 29; Craft's Appeal, 42 Conn., 146; 
 Buckner v. Jones, 1 Mo. App., 538. 
 
 2 42 Conn., 146. 
 
 3 Ante, %5 et seq. 
 
 * SwaU V. aarke, 51 Cal., 227.
 
 DIFFEKEXT KINDS OF PKOPEETY. 63 
 
 § 92. Suspicious Circumstances. — But the circum- 
 stances by which it is sought to prove that a purchaser of 
 negotiable paper took with knowledge of equities between 
 the original parties must be of a character in themselves 
 suspicious. The inquiry excited must have reference to 
 some matter affecting the validity of the instrument. It 
 will not be suiEcient that the circumstances attending the 
 transaction, or even the memoranda on the paper itself, are 
 unusual or extraordinary. Unless they direct attention to 
 some infirmity of the instrument, it will be safe for the in- 
 dorser to disregard them. Accordingly, where a note con- 
 tained the memorandum, "secured by mortgage," this was 
 held not sufficient to put a purchaser upon inquiry, nor to 
 charge him with notice of the contents of such mortgage. 
 And the mere fact that the mortgagee mentioned in the 
 mortgage by which the note was secured was a different 
 person from the paj^ee of note was held insufficient to make 
 it the duty of the purchaser to inquire as to the validity of 
 the note.' 
 
 § 92a. The Time When Notice Must be Acquired to 
 Affect Purchasers. — The notice or knowledge of defects 
 in the instrument, or frauds practiced, which tend to de- 
 feat the purchaser's rights, must be acquired prior to or at 
 the time of the purchase.' The time of the purchase is de- 
 termined not so much by the date of the contract of pur- 
 chase as that of payment. Payment of the agreed price is 
 a necessary completion of the contract, before notice is re- 
 ceived, to render it a purchase for value and without notice,^ 
 
 § 93. Payment Before and After Notice. — The protec- 
 tion afforded to purchasers of negotiable instruments before 
 maturity is intended to benefit those who have not only 
 acted in good faith and without notice of the infirmities 
 
 iHovsrrey v. Eppinger, 34 Mich., 29. 
 
 2Hanauer v. Doane, 13 Wall., 342; Kasson v. Smith, 8 Wend., 437; 
 Fisher v. Leland, 4 Cush., 456; Skilding v. Warren, 15 Johns., 270; 
 Norvell v. Hudgins, 4 Munf., 496; Ryland v. Brown, 2 Head, 270; 
 Harrisburg Bank v. Meyer, 6 Serg. & R., 537. 
 
 sCrandell v. Vickery, 45 Barb., 156.
 
 64 NOTICE TO PUKCIIASEKS. 
 
 affecting the instrument in the hands of the original payee, 
 but have paid value therefor. One Avho has paid nothing prior 
 to notice would not be protected in his purchase, and if a 
 partial pa3'ineut is made, the protection Avill only extend to 
 the amount actually paid prior to notice, and as to that paid 
 subsequently he will be treated as a purchaser mala fide} 
 And if notice is received after a partial payment, the pro- 
 tection only goes to the extent of the l>ona fide payment. 
 As to so much of the consideration as is paid after notice, 
 the purchaser will be regarded as a holder in bad faith.- 
 
 § 94r. Patent Defects Affecting Purchasers. — Cases are 
 frequently cited in support of the application, to negotiable 
 instruments, of the doctrine of implied notice, which upon 
 examination appear to be inapplicable, for the reason that 
 the matters therein set up in defense, and Avhich are sup- 
 posed to challenge inquiry, are apparent on the face of the 
 instruments, and if unexplained utterly destroy their nego- 
 tiability.^ A note or bill payable to bearer, or to the order 
 of the payee therein named, after it has been dishonored, 
 can no more be protected in the hands of a subsequent pur- 
 chaser as negotiable paper transferred before maturity, than 
 though it had never contained words of negotiability.* 
 Therefore, if such an instrument appears on its face to have 
 been dishonored by non-payment or non-acceptance, it drops 
 out of its place as a negotiable instrument protected by the 
 law merchant, and so far from its being necessary to bring 
 a knowledge of its latent defects home to the purchaser, in 
 order to charge him, he is bound b}^ the equities subsisting 
 between the original parties without an}- notice at all.^ 
 
 iHaescig v. Brown, 34 Mich., 503; Cass County v. Green, supra, § 88, 
 note. 
 
 2 Dresser v. Misso., etc., R. Co., 93 U. S., 93; Weaver v. Borden, 49 N. 
 Y., 286. 
 
 3HaU V. Hale, 8 Conn., 336; Crossly v. Ham, 13 East, 498. 
 
 ■»! Daniel, Negot. Inst., 593; Andi-ews v. Pond, 13 Pet., 65; Angles. 
 N. W., etc., Ins. Co., 92 U. S., 341; Goodman v. Hai-vey, 4 Ad. & El., 
 870; Fowler v. Brantley, 14 Pet., 318; Swift v. Smith, 103 U. S,, 443. 
 
 5 Fowler v. Brantley, 14 Pet., 318.
 
 DIFFEEENT KINDS OF PEOrERTT. C5 
 
 § Ola. Notice of Want or Failure of Consideration.— 
 
 One of the defenses which the maker of a note, whether 
 negotiable or not, may set up to an action by the payee, is 
 want of consideration,^ or failure of consideration either in 
 whole or in j^art,^ It follows that in a proper case of notice 
 of such want or failure, the same defense may be made 
 when the action is by an indorsee." But the fact of which 
 the purchaser is notified must be of something more than 
 that the consideration was some particular commodity, un- 
 less it be an illegal consideration, or one which is inherently 
 insufficient to support the contract between the parties. The 
 mere fact that the consideration is particularh^ described in 
 the note or bill does not impose upon the purchaser the 
 duty of inquiring into the circumstances of its actual de- 
 livery to the maker, its value, or conformity to the terms of 
 any warranty that may have been given by the payee.^ 
 Thus in Michigan it was held that the fact appearing upon 
 the face of the note, that it was given for a patent right, 
 would not put the purchaser upon inquiry, and charge him 
 with notice of any fraud practiced upon the maker by the 
 vendor of such right.'^ And in N'ew York, that where it 
 was stated on the face of the note that the article for 
 which the note was given was warranted, would not authorize 
 the inference that the purcha,se was made with notice of 
 the breach of such warrant}^^ If, however, the pm'chaser 
 has notice that the note was given in consideration of an 
 
 1 Murphy v. Keyes, 39 N. Y. Sup. Ct., 18; Spurgin v. McPlieeters, 42 
 Ind., 527. 
 
 2 Dickinson r. HaU, 14 Pick., 217; Drew v. Towle, 27 N. H., 412; 1 
 Dan'l on Negot. Inst., § 203. 
 
 3 Rand v. State, 77 N. C, 175; Dogan v. Dubois, 2 Rich. Eq., 85; Len- 
 heim v. Fay, 27 Mich., 70; Coffman v. Wilson, 2 Met. (Ky.), 542. 
 
 ••Borden v. Clark, 26 Mich., 410; Sackett v. Kellar, 23 Oliio St., 554; 
 Beardslee v. Horton, 3 Mich., 560; Loomis v. Moni-y, 15 N. Y. (S. C), 
 312; Dohertyr. Peny, 38 Ind., 15; Miller v. Finley, 36 Mich., 255; Has- 
 keU V. Jones, 86 Pa. St., 173. Contra, Tlurall v. Horton, 44 Vt., 886. 
 See, also. Rand v. State, 77 N. C, 175. 
 
 ■■* Miller t'. Finley, 26 Mich., 255. 
 
 8 Loomis r. Monry, 15 N. Y. (S. C), 812. 
 5
 
 GQ NOTICE TO PUECHASERS. 
 
 executory contract, and that there has been a breach of the 
 contract on the part of the payee, the purchaser cannot re- 
 cover.* But it is held otherwise, if the notice goes no 
 farther than the fact tliat the contract of Avhich the note 
 was the consideration was executory ; for the obvious rea- 
 son tliat the presumption would be that its terms had been, 
 or would be, carried out in good faith, rather than that there 
 had been a breach by the contractor.^ 
 
 The doctrine that notice of want of consideration be- 
 tween the original parties will defeat the action of the 
 purchaser docs not applv to accommodation paper. The 
 very nature of the transaction excludes any such defenses. 
 Its purpose is much the same as a letter of credit from the 
 maker, and to admit the defense of want of consideration 
 against a purchaser would be to defeat the very object for 
 which, it was issued.* But the exemption of the holder of 
 accommodation paper does not extend its protection to 
 matters that are in violation of the terms upon which the 
 maker executed the same. If the pm-chase is made with 
 notice of any such violation of the terms of the original 
 contract, the accommodation maker or indorser cannot be 
 held liable to the purchaser.'* 
 
 § Oil). Notice of Diversion of Accommodation Paper. — 
 Such a violation of contract is the diversion of the paper 
 from the original purpose for which it was issued, par- 
 ticularly if the accommodation maker or indorser were 
 
 1 Bowman v. Van Kuren, 29 Wis., 218; Wagner r. Dieclrich, 50 Mo., 
 484. 
 
 2 Patten v. Gleason, 106 Mass., 439; Bend v. Weitze, 12 Wis., 611; 
 Davis V. McCready, 17 N. Y., 280; Croix v. Sibbett, 15 Pa. St., 238. 
 
 3 Thatcher v. West River Nat. Bank. 19 Mich., 196; Grant v. Ellicott, 7 
 Wend., 227; PoTvell x\ AVaters, 17 Johns., 176; Grandin v. Leroy, 2 
 Paige, 509; Bank of Ireland r. Beresford, 6 Dow., 237; Jones v. BeiTy- 
 hill, 25 Iowa, 289; Stephens v. Monongahela Nat. B'k, 87 Pa. St., 163: 
 Crouise v. Kellogg, 20 111., 11; Mentross v. Clark, 2 Sandf., 115. 
 
 4 Daggett V. Wliiting, 35 Conn., 372; Small v. Smitli, 1 Den., 583; 
 Hickerson v. Raignell, 2 Heisk., 329; Fetters v. Muncie Nat. B'k, 34 
 Ind., 251 ; Hidden v. Bishop, 5 R. I., 29 ; Roberts v. Eden, 1 Bos. & Pull., 
 398; Key v. Flint, 8 Taunt., 21 ; Lord v. Ocean Bank, 20 Pa. St., 384.
 
 DIFFEKEJs^T Ki:rsDS OF" PKOPERTY. 67 
 
 interested, directly or indirectly, in having that purpose 
 carried into effect.^ But such diversion must be in respect 
 to some substantial matter, and not a mere variance in the 
 mode of accomplishing the same result. Thus, if a note is 
 made to enable the party Avho is to put it into circulation 
 to raise money by discounting it at a particular bank, it is 
 not a fraudulent diversion from the original design to have 
 it discounted at a different bank, or used for the pa3nnent 
 of a debt, "where there is no fraud, and the interest of the 
 accommodating party is not thereby prejudiced.^ Where 
 an accommodation note was made for the specific purpose of 
 purchasing property upon which the accommodation party 
 Avas to have a mortgage, and, contrary to the agreement, 
 traded the note for similar property to another party, it was 
 held that the latter could recover from the accommodation 
 party, although he knew that the note was designed to be 
 used in the purchase of the other property, but did not 
 l.now that it was to be mortgaged.^ When, however, the 
 party giving the accommodation has a direct interest in 
 having it used for the particular purpose for which it was 
 designed ; as where it is to take up notes at a bank where 
 it is to be discounted, upon which notes the accommodation 
 party is liable, a failure to use it in that manner and for the 
 purpose agreed upon is a misappropriation or diversion.* 
 
 I Thompson v. Posten, 1 Duvall, 415; Evans v. Kymer, 1 Barn. & Ad., 
 528; Buchanan v. Findlay, 9 Barn. & Cres., 738; supra, § 94a. 
 
 - Daniel on Negot. Inst., § 792; citing Duncan & Sherman v. GUbert, 
 29 N. J. L., 531; Jackson r. First Nat. B'k, 42 N. J. L., 178; Briggs v. 
 Boyd, 37 Vt., 538 ; Purchase v. Mattison, 6 Duer, 587; Wardell v. Howell, 
 gWend., 170; Mohawk Bank v. Corey, 1 Hill, 513; PoweU v. Waters, 
 17 Johns., 176; Bank of Chenango v. Hyde, 4 Cow., 567; Schepp v. 
 Carpenter, 51 N. Y., 602; Eeed v. Trentman, 53 Ind., 438; Brooks v. 
 Hey, 23 Hun, 372; 1 Daniel on Negot. Inst., § 793a, citing Quinn 
 V. Hard, 43 Vt., 375; Fetters v. Muncie Nat. B'k, 34 Ind., 254; Dunn v. 
 "Weston, 71 Me., 270; Kimbro v. Lytle, 10 Yerg., 417; Eutland Bank v. 
 Buck, 5 Wend., 66; Dawson v. Goodyear, 43 Conn., 548; but see Mer- 
 chants' Nat. B'k V. Comstock, 55 N. Y., 24. 
 
 3 Laub V. Rudd, 37 Iowa, 618. 
 
 4WardeU v. HoweU, 9 Wend., 170; Kasson v. Smith, 8 Wend., 437; 
 Moore v. Ryder, 65 N. Y., 440; Comstock v. Hier, 73 N. Y., 269; Dennis- 
 ton V. Bacon, 10 Johns., 198.
 
 68 KcrncE to purchasers. 
 
 There is little or no conflict of authority upon the propo- 
 sition that, when there is a substantial diversion or misap- 
 propriation of paper of this character from its agreed 
 purpose, the purchaser thereof with notice of the agree- 
 ment and the breach will hold it subject to the accommo- 
 dation party's defense on this gromid. But there seems 
 some conflict as to the effect of such misappropriation on 
 the burden of proof. In Is'ew Tork it is held that the 
 diversion is a fraud upon the accommodation party, and 
 shifts the burden of proof upon the purchaser, requiring 
 him to show that he was a purchaser in good faith, and in 
 the ordinary course of business for a valuable considera- 
 tion.^ On the other hand, it is maintained that when such 
 a defense is made, it rests with the accommodation party to 
 show not only a substantial diversion, but that the same 
 was known to the holder at the time of his purchase.^ 
 
 iWardell v. Howell, 9 Wend., 170; Farmers', etc., Nat'l B'k v. Noxon, 
 45 N. Y., 762; Spencer v. BaUou, 18 N. Y., 331; Grocei-s' Bank v. Pen- 
 field, 7 Hun, 279. 
 
 2 Clark V. Thayer, 105 Mass., 216; Stoddard v. Kimball, 6 Cush., 469 
 Robertson v. Williamson, 5 Munf., 331; Dunn v. Weston, 71 Me., 270 
 Gray v. Bank of Ky., 29 Pa. St., 365; Holme v. Kansper, 5 Binn., 469 
 1 Dan'l on Negot. Inst., § 814.
 
 CHAPTEK III. 
 
 NOTICE BY REGISTRATION OF INSTRUIVIENTS. 
 
 I. The General Scope and Operation of the Statute. 
 
 II. Recordable Instridients. 
 
 IIL Statutory Prerequisites to Recording. 
 rv. Errors in the Record. 
 V. Errors by the Party Filing the Instrument. 
 VI. Conflicting Titles Affected by Priority of Registration. 
 VII. Other Notice Considered in Connection With Registration. 
 
 I. The General Scope and Operation of the Statute. 
 
 § 95. Registry Provided for by Statute. 
 
 96. Object of American Registiy Acts. 
 
 97. Registration Notice to Subsequent Purchasers. 
 
 98. To Affect Purchasers Must be Properly of Record. 
 
 99. Prerequisite to Registi-ation. 
 
 100. Subscribing Witnesses. 
 
 101. When Instrument to be Filed. 
 
 102. Consequence of Delay in Filing. 
 
 103. Exceptional Legislation. 
 
 104. English and Irish Registry Acts. 
 
 105. Equitable Mortgage. 
 
 106. Registiy of Marriage Settlement. 
 
 107. Irish Act. 
 
 108. Registered Mortgage and Unregistered Will. 
 
 109. Registered Legal Mortgage and Unregistered Equitable Mortgage. 
 
 110. Memorandum of Further Charge. 
 
 III. Agi-eement to Mortgage. 
 113. Acknowledgment. 
 
 § 95. Registry Provided for by Statute. — The registry 
 of instruments affecting the title to property, being provided 
 for entirely by legislative enactment, can only be treated 
 "with reference to its effect as notice by giving as near as 
 may be the judicial construction placed upon the different 
 statutes. This could, no doubt, be more thoroughly accom- 
 plished by copying each statute in extenso, and then giving
 
 70 NOTICE BY REGISTRATION OF INSTRUMENTS. 
 
 the decisions under them. But this course "svould involve 
 the necessity of extending this treatise to an unwarranted 
 length for the doubtful benefit of presenting a body of 
 statute law which might be undergoing changes while the 
 work was passing through the press. The most that can 
 be safely undertaken in this direction is to present some of 
 the most striking points of difference in the recording acts 
 of the different states of the Union. Those of Great Lrit- 
 ain are so essentially different in their scope and adminis- 
 tration, that, for a practical work upon a subordinate branch 
 of the law, it could hardly be proiitable to compare them in 
 detail with the acts of our own legislative bodies, 
 
 § 96. Object of American Registry Acts.— The gen- 
 eral spirit and object of the different American registry 
 acts are substantially the same. They are intended to fur- 
 nish the best and most easily accessible evidence of the 
 titles to real estate, to the end that those desiring to pur- 
 chase ma}^ be fully informed of instruments of prior date, 
 affecting the subject of their contemplated purchases. And 
 also that, having availed themselves of this means of knowl- 
 edge, they m'ay rest there, and purchase in absolute security, 
 provided they do so without knowledge, information or such 
 suggestions from other facts as would be gross negligence 
 to ignore, of some antecedent conveyance or equitable 
 claim.^ But in order that the subsequent purchaser may be 
 able to maintain the superiority of his title as against the 
 prior purchaser, w^ho has failed to deposit his deed for rec- 
 
 iSee Brooks' Appeal, 64 Pa. St., 127; Bratton's Appeal, 8 Pa. St., 
 164; Foster's Appeal, 3 Pa. St., 79; Dungan v. Am., etc., Ins. Co., 53 
 Pa. St., 253; Ebner v. Gounclis, 5 Watts & S., 49; Cover v. Black, 1 
 Barr., 493; Path v. Anstatt, 4 W. & S., 307; Stewai-t v. Freeman, 10 
 Harris, 123; Cockey v. IMilne's Lessee, 16 Md., 207; Walsh v. Boyle, 30 
 Md., 267; Busey v. Reese, 38 Md., 264; Nelson v. Hagerstown Bank, 27 
 Md., 51; Homer v. Grosholz, 38 Md., 521; Glenn v. Davis, 35 Md., 215; 
 Abrams v. Sheehan, 40 Md., 446; Kane v. Roberts, 40 Md., 590; HaiTal 
 V. Gray, 10 Neb., 189; Hooker v. Hammil, 7 Neb., 234; Lincoln, etc., 
 Ass'n V. Hass, 10 Neb., 583; Jones v. Jolmson, etc., Co., 8 Neb., 451; 
 Hays V. McGuii-e, 8 Yerg., 92; Thomas v. Blackmore, 5 Yerg., 113; 
 Vance v. McNairy, 3 Yerg., 176; Shields v. l^litchell, 10 Yerg., 8.
 
 GENERAL SCOPE AIS'D 0PEKATI(3N OF STATUTE. Tl 
 
 ord, sometliing further is in general required. The general 
 tenor of the statutes is, that conveyances not properly re- 
 corded shall be held void as against a subsequent bona fide 
 purchased or incumbrancer, for a valuable consideration, 
 whose deed is first filed for record. Hence, the advantage 
 only lies with the subsequent purchaser by virtue of prior- 
 ity in placing his deed on record.^ Some of the statutes, 
 however, provide that unregistered deeds shall be void not 
 only against subsequent purchasers without notice, but also 
 as against creditors of the vendor or mortgagor.- And in 
 others, where creditors are not specially mentioned, all in- 
 struments affecting the title are declared void, against all 
 persons except the parties thereto and their heirs, or those 
 having; notice, until filed for record.^ But in the state of 
 
 1 Westbrook v. Gleason, 79 N. Y., 23; Page v. Waring, 76 N. Y., 463; 
 Judson V. Dada, 79 N. Y., 373: Lacustrine, etc., Co. v. Lake Guano, etc., 
 Co., 82 N. Y., 476; Schutt v. Large, 6 Barb., 373; Hoyt v. Thompson, .5 
 N. Y., 347; Ti-uscott v. King, 6 Barb., 346; Newton v. McLean, 41 Barb., 
 285; Odd Fellows' S. B'k v. Banton, 46 Cal., 604; Snodgrass v. Bicketts, 
 13 Cal., 360; Landers v. Bolton, 26 Cal., 393; Packai-d v. Johnson, 51 
 Cal., 545; Frey v. Clifford, 44 Cal., 335; Patterson r. Donner, 48 Cal., 
 369; Wilcoxson v. Miller, 49 Cal., 193; Mahoney v. Iiliddleton, 41 Cal., 
 41; Smith v. Yule, 31 Cal., 180; Fail- v. Stevenot, 29 Cal., 486; Jones v. 
 Mai-ks, 47 Cal., 242; Thompson v. Pioche, 44 Cal., 508; O'Rourke v. 
 O'Coiuior, 39 Ctil., 4-12; Vassault v. Austin, 36 Cal., 691; La^^■ton v. Gor- 
 don, 37 Cal., 203; Fogai-ty v. SaAvyer, 23 Cal., 570; Grellet v, Heilshorn, 
 4 Nev., 526; Warner v. Whittaker, 6 Mich., 133; WHcox v. Hill, 11 
 Mich., 256; Doyle v. Stevens, 4 Mich., 87; BaiTows v. Bauglmian, 9 
 Mich., 213; Rood v. Chapin, Walk. Ch., 79; Coy v. Coy, 15 Muin., 119; 
 Godfrey v. Disbrow, Walk. Ch., 260; Smith v. Gibson, 15 JXmn., 89; Ed- 
 minster V. Higgins, 6 Neb., 269; Metz v. State B'k, etc., 7 Neb., 171; 
 Colt V. Du Bois, 7 Neb., 394; Galway v. Malchow, 7 Neb., 289; Dorsey v. 
 Hall, 7 Neb. 465; Berkley v. Lamb, 8 Neb., 399; Mansfield v. Gregory, 8 
 Neb., 435. 
 
 2 Graves v. Ward, 2 Duv., 301. See, also, Byers v. Engle, 16 Ai-k., 543; 
 Ducoway v. Gait, 20 Ark., 190; Hamilton v. Fowlkes, 16 Ai-k., 340; 
 Koons V. Grooves, 20 Iowa, 373 ; Senter v. Turner, 10 Iowa, 517 ; Dargin 
 V. Beeker, 10 Iowa, 571 ; May v. McKeenon, 6 Humph., 209. 
 
 3 Reed v. Ownby, 44 Mo., 204; School Dist. v. Taylor, 19 Kans., 287; 
 Wickersham v. Chicago, etc., Co., 18 Kans., 487; Claggett v. Crall, 13 
 Kans., 393; Johnson v. Clark, 18 Kans., 157; Stewart v. Clark, 13 Mete. 
 (Mass.), 79; Hynt v. Arnold, 2 Mete. (Mass.), 619; Coffin v. Ray, 1 Mete,
 
 72 NOTICE BY KEGISTRATION OF INSTRUMENTS. 
 
 Alabama the deed is valid against creditors other than 
 tliose by judgment.' 
 § 97. Registration Notice to Subsequent Purchasers.— 
 
 It may be stated, then, as a vule a})[)liealjlu to almost all the 
 states, that where an instalment by which the title to real 
 estate is affected is propcrl}^ recorded, the record thereof is 
 constructive notice to subsequent purchasers or incumbran- 
 cers under the same grantor. Tiiere are a few exceptions 
 to this doctrine, and these for the most part apply to con- 
 veyances of equitable rights or interests.- But as a general 
 rule an}^ instrument affecting the title, which is properly 
 recorded, is absolute notice to every one subsequently deal- 
 ing with the title, irrespective of whether such person has 
 examined the records, or even had an opportunit}^ to make 
 an examination. The presumption of knowledge is con- 
 clusive that he has full notice of any interest, legal or equi- 
 table, which is conveyed, incumbered or in any manner 
 affected by the recorded instrument.'^ 
 
 212; Pomroy v. Stevens, 11 Mete. (Mass.), 244; Houghton v. Bartholo- 
 mew, 10 Mete. (Mass.), 138; Dole v. ThurloAv, 12 Mete. (Mass.), 157; Mar- 
 shall V. Fisk, 6 Mass., 24; Stetson r. Gulliver, 2 Cusli., 494; Bayley v. 
 Bailey, 5 Gray, 505; La-vvi-ence r. Tucker, 7 Me., 195: Rackleff v. Nor- 
 ton, 19 Me., 274; Merrill v. Ireland, 40 jMe., 5G9; Goodman v. Cloudman, 
 43 Me., 577. See, also, Nice's Appeal, 54 Pa. St., 200; Adams' Appeal, 1 
 Pa. St., 447. 
 
 1 Smith V. Branch Bank, 21 Ala., 125; Daniels v. Sorrells, 9 Ala., 436; 
 Andrews v. Burns, 11 Ala., 691; Oliio, etc., Co. v. Ledyard, 8 Ala., 866. 
 
 ^DosweU V. Buchanan, 3 Leigh, 365; Walker v. Gilbert, 1 Freem. Ch., 
 75; Ludlow v. Van Ness, 8 Bosw., 178; De Ruyter v. Trustees, etc., 2 
 Barb. Ch., 556; Berson v. Neman, 63 Cal., 550. 
 
 3 Cook V. Ti-avis, 20 N. Y., 400; Rounds v. McChesney, 7 Cow., 360; 
 Wood V. Chapin, 13 N. Y., 509; Taylor v. Thomas, 5 N. J. Eq., 331; 
 Routhv. Spencer, 38 Ind., 393; Harang r. Plattsmier, 21 La. An., 426; 
 Hunt V. Johnson, 19 N. Y., 279; Armijo v. New Mexico, etc., Co., 5 
 West Coast Rep., 483; Cashing v. Ayer, 25 Me., 383; Mason v. Martin, 4 
 Md., 124; Vaughan v. Greer, 38 Tex., 530; Mayo v. Cait\vi-ight, 30 Ark., 
 407;' Randolph v. N. J. West L. R. R. Co., 28 N. J. Eq., 49; Woodworth 
 V. Guzman, 1 Cal., 203; Call v. Hastings, 3 Cal., 179; Demis v. Burrett, 
 6 Cal., 670; Ciiamberlain v. Bell, 7 Cal., 292; Bu-d v. Dennis, 7 Cal., 297; 
 Hunter v. Watson, 12 Cal., 363; McCabo v. Grey, 20 Cal., 509; Grant v. 
 Bissett, 1 Caines' Cas., 113; Jackson v. Van Valkenburgh, 8 Cow., 260;
 
 GENERAL SCOPE AND OPEEATION OF STATUTE. 7d 
 
 § 98. To Affect Purchasers Must Ibe Properly of Rec- 
 ord. — But this rule, though applicable to aU cases, is not 
 applicable in the same manner, for the reason that the stat- 
 utes are far from uniform in their provisions as to what is 
 essential, in order to render an instrument properly record- 
 able. If not recordable under the law, it could not be 
 treated as properly recorded.^ Many of them also differ 
 "widely from each other in regard to the time from which 
 the record operates as notice. 
 
 §99. Prereciuisites to Eegistratiou. — In a majority 
 of the states, the instrument is entitled to registration when 
 it is properly executed by the party to be bound by its 
 terms, and acknowledged before an officer authorised to 
 take acknowledgments. Subscribing witnesses are dis- 
 pensed with except as a substitute for the acknowledgment 
 before the officer. But in the states of Connecticut, Dela- 
 ware, Florida, Georgia, Louisiana, Maryland, Michigan, 
 Minnesota, ISTew Hampshire, Ohio, South Carolina, Texas, 
 Vermont and Wisconsm, the execution is required to be at- 
 tested by either one or two subscribing witnesses.^ In the 
 state of Louisiana the attestmg witnesses are required to 
 be males, and, where the party is blind, three witnesses are 
 required.^ 
 
 § 1 00. Subscrilbing Witnesses.— The provisions in re- 
 gard to subscribmg witnesses are variously modified in the 
 different states. In some of them the rule is quite peremp- 
 tory and governs all conveyances of real estate, while in 
 others it depends upon where the instrument is executed — 
 whether within or without the limits of the state, the char- 
 Jackson V. Given, 8 Jolins., 137; Webster v. Van Steenhurgh, 46 Barb., 
 211; Holbrook v. Dickenson, 56 111., 497; Hogden v. Guttery, 58 lU., 
 431 ; Hai-rington v. AUen, 48 Miss., 493 ; Peychai-d v. Citizens' B'k, 21 La. 
 An., 263; Gower v. Doheney, 33 Iowa, 36; English v. Waples, 13 Iowa, 
 570; Stewart v. Huff, 19 Iowa, 557; Haynes v. Seachrest, 13 Iowa, 455; 
 Bostwick r. Powers, 12 Iowa, 456 ; Scales v. Wilsey, 11 Iowa, 261. 
 
 1 See infra, § 119 et seq. 
 
 2 See statutes of states mentioned. 
 
 3 Civil Code La., art. 2231.
 
 74 NOTICE BY KEGISTRATIOX OF INSTRUMENTS. 
 
 acter of the instrument, and other cii'cumstances. In some 
 of them, too, the consequences of a faihire to conform to 
 the law Avitli strictness, in the matter of attestation, are 
 more disastrous than in others, esijccially with reference to 
 the effect upon their registration.' 
 
 § 101. When Instrument to be Filed. — In general, the 
 record operates as notice from the date of tiling the instru- 
 ment for record, or from the date of its registration, or 
 other formality deemed sufficient to bring the knowledge 
 of its execution and delivery within the reach of any one 
 who has an interest in making inquiry. But in several of 
 the states the statutes prescribe certain periods of time 
 within which the instrument shall be deposited with the 
 designated officer for record. These periods vary in the 
 different states, as follows: Li Alahama, three months; 
 Delaware, one year; District of Cohuuhia, six months; 
 Florida, six months; Georgia, one year; Indiana, forty- 
 five days ; Kentucky, sixty days when executed and ac- 
 knowledged within the state, and four months in cases of 
 non-resident grantors ; Maryland, ^xy.m.o^W^s,; New Jersey, 
 fifteen days ; Ohio, six months ; Oregon, five da3^s ; Penn- 
 sylvania, when Avithin the state, six months; Avhen the deed 
 is executed without the state, one year; South Carolina, 
 thirty days ; Virginia, within sixty days after delivery of 
 the instrument.- 
 
 § 102. Consequence of Delay in Filing. — These pro- 
 visions are not ordinarily construed as fixing periods of 
 limitation, but rather as giving the grantee so much time, 
 
 1 See cases cited infra, %% 137, 225. 
 
 2 See Reasoner v. Edmonson, 5 Ind., 393; Bii-d v. Wilkinson, 4 Leigh, 
 266; Beverly n Ellis, 1 Riind., 102; McClure v. Thistle, 2 Gratt., 182; 
 Glazebrook v. Eagland, 8 Gratt., 344; Beck v. De Baptists, 4 Leigh, 349; 
 Lane v. Mason, 5 Leigh, 520; Williams v. Beard, 1 S. C, 309; Steel v. 
 Mansell, 6 Rich., 437; Bank of State v. S. C. Man, Co., 3 Strobh., 190; 
 Tact V. Crawford, 1 McCord, 265; Boyce v. Sliiver, 3 S. C, 515; Massey 
 V. Thompson, 2 Nott & McC, 105; ]McFall v. Shen-ard, Harper, 295; 
 Dawsou V. Dawson, Rice, Eq., 243; Byles v. Tome, 39 Md., 461 ; Building 
 Ass'n V. Wilson, 41 Md., 514; Hoopes v. Knell, 31 Md., 550.
 
 GENEKAL SCOrE AND OPEPtATION OF STATUTE. 75 
 
 as days of grace, within wliich tlieir instruments may be 
 registered, witliout incurring the danger of being cut out 
 by conveyances from the same grantor dm*ing the interme- 
 diate time.^ 
 
 § 103. Exceptional Legislation. — Exceptional acts of 
 legislative bodies of the states may provide for the filing 
 of such instruments in a manner to give pm'chasers the 
 substantial benefits of registration without affecting them 
 with constructive notice ; as the law enacted by the legis- 
 lation of the state of Kew York, January 8, 1Y94. The 
 object of this act was to settle conflicting claims to bounty 
 lands in that state. It provided that all deeds and convey- 
 ances theretofore executed of or concerning such lands, or 
 whereby they might be affected at law or in equity, should, 
 on or before a day named, be deposited with the clerk of 
 the city of Albany, and all such, except mortgages duly 
 registered, not so deposited should be adjudged fraudulent 
 and void as against subsequent purchasers or mortgagees 
 for a valuable consideration. It was made the duty of the 
 clerk to keep these instruments arranged in alphabetical 
 order, " to the end that persons inclining to have recourse 
 thereto may inspect the same, paying the usual fees for 
 search and inspection." A subsequent portion of the same 
 act provided for the registry of deeds thereafter executed ; 
 but it was held that compliance with the fu-st provision of 
 the act would not charge subsequent purchasers with con- 
 structive notice of the instruments deposited with the 
 clerk.- 
 
 § 104. English and Irish Registry Acts. — Under some 
 of the English and Irish registry acts it has been decided 
 that the registry of an instrument does not itself operate 
 
 1 Infra, §§ 235, 268. 
 
 2 Wendell v. Wadsworth, 20 Jolins., 638; Grimstone v. Carter, 3 Paige, 
 421 ; Doswell v. Buchanaxi, 3 Leigh, 365 ; Goveneur v. Lynch, 2 Paige, 
 300; De Reuyter v. Trustees, etc., 2 Barb. Ch., 556; Ludlow v. Van 
 Ness, 8 Bosw., 178; Swigert v. Bank, etc., 17 B. Mon., 268; Corn v. 
 Sims, 3 Mete. (Ky.), 391; AValker v. Gilbert, 1 Freem. Ch., 75; Kelly r. 
 Mills, 41 Miss., 267; Jaques v. Weeks, 7 Watts, 261.
 
 TG NOTICE BY KEGISTKATION OF INSTRUMENTS. 
 
 as constructive notice to subsequent purchasers.^ But 
 although the Ii'ish acts do not in express terms declare that 
 the record of conveyances shall be notice to subsequent 
 purchiisers, this effect is given to a compliance with the 
 statute, for the reason that the first one of two purchasers 
 of the same property, who records his conveyance, will have 
 the prior right, although they each purchase from the same 
 t«Tantor. And the statute is held to apply to all instruments 
 affecting tlie title to real estate.- 
 
 § 105. Equitable Mortgage.— Where a mortgage had 
 been duly registered, and S. subsequently received the title 
 deeds on de^Ktsit as security for a debt owing by the mort- 
 gagor without actual notice of the ])rior registered mortgage, 
 it was held that the possession of such title deeds was avail- 
 able in his hands as an equitable mortgage upon the 
 premises, notwithstanding the formal registry of the prior 
 mortgage.' 
 
 § 106. Registry of Marriage Settlement. — So. also, 
 where the law provided for the registry of marriage settle- 
 ments, it was held, in the case of Hodgson v. Dean,* that a 
 subsequent purchaser of the land included in such settle- 
 ment could only be affected by actual notice. It was de- 
 cided that the defendant was not bound to search the 
 register, and therefore could not be constructively notified 
 of its contents. 
 
 § 107. Irish Act. — The Irish registry act, under which 
 the case of Bushell v. Bushell* was decided, after providing 
 
 1 Hodgson V. Dean, 2 Sim. & Stu., 227 ; Underwood v. Lord CourtOAvn, 
 2 Scho<ales & Lefroy, 40; Bushell v. BusheU, 1 id., 90, 103; Morecock v. 
 Dickens, Ambl., 678; Ford v. Wliite, 16 Beav., 120. 
 
 -La touch V. Lord Dunsany, 1 Sch. & Lef., 159; Drew v. Lord Norbury, 
 ;5 Jones & L., 267; Thompson v. Simpson, 1 Dm. & War., 459; In re 
 Di-iscoU, 1 L R. Eq., 285; MUl v. Hill, 12 Jones «& L., 107; 3 H. L. Cas., 
 828; Corbett v. Cantillon, 5 Ir. Ch. R., 126; Hunter u. Kennedy, 1 Ir. 
 Ch. R., 148. 
 
 s Wiseman v. Westland, 1 Young & Jervis, 117. 
 
 <SuiJra, §104. 
 
 »lSch. & Lef., 90.
 
 GENEEAL SCOPE AND OPEKATION OF STATUTE. li 
 
 for the registry of deeds and conveyances, declared " that 
 every such deed or conveyance, a memorial whereof- shall 
 be duly registered according to the rules and directions 
 in this act prescribed, shall be deemed and taken as good 
 and effectual, both in law and equity, according to the 
 priority of time of registering such memorial, for and con- 
 cerning the honors, manors, etc, in such deed or convey- 
 ance mentioned or contained, according to the right, title 
 and interest of the person so conveying, etc., against all 
 and every other deed, conveyance or disposition of the 
 honors, etc., or any part thereof, comprised or contained in 
 any such memorial as aforesaid." Still this was not deemed 
 sufficient to constitute such registry constructive notice to 
 a subsequent pmxhaser of the property included in the 
 memorial, and he would not be bound except by actual 
 notice. 
 
 § 108. Registered Mortgage and Unregistered Will. — 
 A more recent case arising under the registry act for the 
 East Eiding of Yorkshire ^ seems to present a view of the 
 law somewhat more favorable to the tenant whose evidence 
 of title is registered, than is accorded to him in the earher 
 Enghsh cases cited. It is decided that a mortgagee whose 
 mortgage has been duly registered shall prevail against a 
 devisee in an unregistered will which was discovered sub- 
 sequent to the registration of the mortgage given by the 
 heir, and after the time within which the registry act re- 
 quired wdlls to be registered in order to be valid against 
 conveyances from the heir. The statute also provides that 
 where there is an impediment to the registration of the 
 will within the time, that the registration of a memorial of 
 such impediment will preserve the rights of devisees, as 
 though the will itself had been registered, until such time 
 as the impediment is removed. It was held in the case 
 cited that the failure to discover the wiU was such an im- 
 pediment as was contemplated by the act, and because the 
 
 iChadwick v. Tiimer, 1 Ch. Ap. Cos., 310.
 
 7b NOTICE BY KEGISTKATION OT INSTRUMENTS. 
 
 devisees who were ignorant of their interests in the prem- 
 ises did not deposit for registration a memorial of the im- 
 pediment to tlie registration of the subsequently discovered 
 will, that instrument was void as against the subsequent 
 mortgagee without notice.' 
 
 ^ 101). Registered Legal Jlortgage and Unregistered 
 Equitable Mortgage. — So under the registry act for Ire- 
 land in a recent case,- where the owner of an estate had 
 created an unregistered equitable mortgage upon his estate 
 by the deposit of the title deeds, such equitable mortgage 
 was postponed to a subsequent registered legal mortgage. 
 And it was further held that such legal mortgage could not 
 be successfully assailed upon the ground that the solicitor 
 employed to draAV the same accepted a frivolous excuse for 
 tlie absence of the title deeds, and drew the mortgage from 
 memoranda of tlie contents of the deeds furnished by the 
 mortgagor. It was held to be inconsistent with the policy 
 of the Irish registry law to impose on a mortgagee or pur- 
 chaser the duty of inquiry, with a view to the discovery of 
 previous unregistered interests. 
 
 §110. Memorandum of Further Charge. — So, also, 
 where a mortgage was given on lands in Yorkshire and was 
 duly registered under the act,^ and a subsequent memoran- 
 dum of " further charge " on the same property in favor of 
 the mortgagee for additional advances was made, although 
 no amount was mentioned in the mortgage, the memoran- 
 dum was deemed a proper instrument for registry, and not 
 being registered Avas postponed to a subsequent registered 
 mortgage in favor of a mortgagee without notice of the 
 further charge.* 
 
 § 11 1. Agreement to Mortgage. — An unregistered agree- 
 ment to give a mortgage on lands in a register county was 
 
 ' See Wyatt v. Barwell, 19 Ves., 435. 
 
 2 Agra. Bank v. Barry, L. R., 7 H. L., 135. 
 
 3 2 and 3 Anne, ch. 4. 
 
 ^Credland v. Potter, 18 Eq. Cas., 350; S. C, aflarmed, 10 Ch. Ap. 
 Cas., 8.
 
 GE2?EEAL SCOPE AND 0PERATI02T OF STATUTE. 79 
 
 held, pursuant to the registry act/ to be a proper subject for 
 registration, and was accordingly postponed to a subsequent 
 registered mortgage, taken without notice of the unreg- 
 istered agreement.^ 
 
 §112. Acknowledgment. — The recording acts of the 
 states of this Union almost uniformly require instruments 
 offered for record to be duly acknowledged before an officer 
 authorised by law to take acknowledgments. And though 
 the officers designated by law to receive such instruments 
 for record have no judicial authority to determine whether 
 they are legally entitled to registry, and consequently re- 
 ceive and file such as are offered, regardless of legal defects 
 in their execution or acknowledgment, yet a faiku-e to com- 
 ply with these formal prerequisites on the part of a grantee 
 generally has the effect to invalidate the record as con- 
 structive notice to subsequent purchasers.* It is not suffi- 
 cient that the genuineness of the signature, or even the 
 fact that the execution was properly acknowledged, can be 
 estabhshed by evidence. All this must appear in the official 
 certificate attached to the instrument, and be spread upon 
 the records, in order that the record shall operate as con- 
 structive notice. 
 
 1 5 Anne, ch. 18. 
 
 -In re Wright's Mortgage Tn^st, 16 Eq. Cas., 41. 
 
 3 Herndon v. Kimball, 7 Ga., 432 ; Graves v. Graves, 6 Gray, 391 ; Selk- 
 ing V. Hebel, 1 Mo. App., 340; Brown v. Lunt, 37 Me., 423; De Witt v. 
 Moiilton, 17 Me., 418; Stevens v. Morse, 47 N. H., 532; Isham v. Ben- 
 nington Iron Co., 19 Vt., 230; Blood v. Blood, 23 Pick., 80; Sumner v. 
 Rhodes, 14 Comi., 135; Carter v. Champion, 8 Conn., 548; Green r'. 
 Drinker, 7 W. & S., 440 ; Heistner v. Fortner, 2 Binn., 40 ; Parkist v. Alex- 
 ander, 1 Johns. Cli., 394; Johns v. Reardon, 3 Md. Cli., 57; Cockey v. 
 Milne, 16 Md., 200; Thomas v. Grand Gulf B'k, 9 Sm. & M., 201; Work 
 V. Hai-per, 24 Mss., 517; Sti-ong v. Smith, 3 McLean, 362; Graham v. 
 Samuel, 1 Dana, 166; White v. Deimian, 1 Ohio St., 110; Reynolds v. 
 Kingsbury, 15 Iowa, 238 ; Brinton v. Seevers, 12 Iowa, 389,
 
 80 NOTICE BY KEGISTKATION OF IXSTKUMENTS. 
 
 II. Kecordable Instruments. 
 
 § 113. What Instruments Should be Recorded. 
 
 114. Reservation of Right of Way. 
 
 115. Deed of Assignment. 
 
 116. Assignment of Lease. 
 
 117. Assignment of Mortgages. 
 
 118. Consideration. 
 
 119. Instruments Not Recordable. 
 
 120. Assignment for Benefit of Creditors. 
 
 121. Certificate of Emancipation. 
 
 122. Executory Contract. i 
 
 123. Same. 
 
 §113. V/hat Instruments Should be Recorded.— In 
 
 construing some of the registry acts of the states of the 
 Union, it has been held that only instruments by which 
 the legal title to the premises was conveyed were entitled 
 to registration.^ But the prevailing rule now is that any 
 instrument by which an equitable interest in the property 
 is affected, or a right arising out of the property is granted 
 or reserved, should be recorded,^ and, if executed with all 
 the formalities prescribed by law, the record ^vill be con- 
 structive notice to subsequent purchasers or incumbrancers 
 to the same extent as the record of a conveyance of the 
 legal title.' 
 
 1 Halstead v. Bank of Kentucky, 4 J. J. Marsh., 554. 
 
 2 Notices of various kinds are required to be filed for record in order 
 to establish liens upon real estate. It is held that a substantial compli- 
 ance with the statute will create a mechanic's hen. Hobbs v. Spiegle- 
 berg, 5 West Coast Rep., 327. 
 
 sParkist v. Alexander, 1 Johns. Ch., 394; U. S. Ins. Co. v. Shriver, 
 3 Md. Ch., 381; Alderson v. Ames, 6 Md., 52; Russel's Appeal, 15 Perm. 
 St., 319; Bellas v. McCarty, 10 Watts, 13; Digman v. McCollum, 47 Mo., 
 372 ; Ray v. Bush, 1 Root, 81 ; St. Andrews v. Lockwood, 2 Root, 239 ; 
 Welsh V. Gould, 2 Root, 287 ; Hall's Heu-s v. Hall, 2 Root, 383 ; Alexander 
 V. Webster, G Md., 359; Gen. Ins. Co. v. U. S. Ins. Co., 10 Md., 517; Beers 
 V. Hawley, 2 Conn., 467; Wheaton v. Dyer, 15 Conn., 307; Hinman v. 
 Huuuan, 4 Conn., 575; Hine v. Robbins, 8 Conn., 342; Dickenson v. 
 Glenny, 27 Conn., 104; Hunt v. Johnson, 19 N. Y., 279; Crane v. Turner, 
 7 Hun, 357; 67 N. Y., 437; Patten v. Moore, 32 N. H., 382; Griswold v. 
 Smith, 10 Vt., 452; Siter v. McClanachan, 2 Gratt., 280; Doyle v. Teas,
 
 KECOEDABLE INSTEUMENTS. 81 
 
 § 1 1 4. Resei'Tation of Right of Way. — So where a right 
 of way was, by agreement, reserved out of land convej^ed by 
 a deed in which no mention of the reservation was made, it 
 was held that an innocent purchaser, for a valuable consider- 
 ation, from the grantee was not charged with notice of sucli 
 reservation, because the same had not been reduced to writ- 
 ing and filed for record as was required of instruments 
 affecting the title to the land itself.^ The same rule would 
 hold good of other easements, either granted or reserved. 
 
 § 1 1 5. Deed of Assignment. — It has also been held that 
 a deed of assignment in trust for the benefit of creditors 
 may be recorded. And, in the absence of fraud, such rec- 
 ord would be sufficient notice to the creditors affected by 
 the conveyance.- 
 
 § 1 1 6. Assignment of Lease. — So where a lease of real 
 estate is transferred l)y a separate instrument, such in- 
 strument, being a transfer of an interest in land, is properly 
 recordable ; and when the statute is complied Avith in respect 
 to the acknowledgment and other prerequisites, and the 
 description is sufficiently certain to identify the premises as 
 those contained in the lease, the record will operate as 
 notice to subsequent purchasers.' 
 
 § 117. Assignment of Mortgage. — And where the stat- 
 ute declared that assignments of mortgages " may be re- 
 corded," without special provision for the record of such 
 assignments operating as notice, although the language was 
 mandatory as to such records being received in evidence, it 
 was decided that such records would be notice to subsequent 
 pm'chasers or assignees, the same as though the provisions 
 of the statute had been imperative in requiring the registry 
 of assignments.^ 
 
 5 m., 203; Wilder v. Brooks, 10 Minn., 50; Kiser v, Heuston, 38 HI., 252; 
 Bank of Greensboro v. Clapp, 76 N. C, 483; Schuttr. Large, 6 Barb., 373. 
 
 iBusli V, Golden, 17 Conn., 594. 
 
 •^ Farquharson y. Eichelberger, 15 Md., 63. 
 
 SMartindale v. Price, 14 Ind., 115. 
 
 < Pepper's Appeal, 77 Pa. St., 373; Phillips v. Bank of Lewistown, 18 
 Pa. St., 394. 
 6
 
 S2 NOTICi: IJY KEGISTRATION OF INSTRUMENTS. 
 
 § 118. Consideration. — The fact that such a deed is 
 without consideration, or has only such consideration as at 
 common law is called good as distinguished from vahtalle, 
 d(;es not disentitle it to registry ; and being recorded after 
 all the requisite formalities have been complied with, the 
 record operates as notice, as though the conveyance were 
 for a valuable consideration.^ Of deeds of this class, those 
 from husband to wife are instances, and the record of such 
 deeds has been held to stand upon the same footing as to 
 notice as the record of any other conveyance.- 
 
 § 1 1 9. Instruments Not Recordable. — JBut an instrument 
 which is not required to be recorded, nor even mentioned in 
 the statutes among those which may be recorded, would 
 not be regarded as one contemplated b}' the legislature as a 
 recordable instrument; consequently, should it be copied 
 upon the records, such copy would not amount to construct- 
 ive notice to any one.'' 
 
 § 120. Assignment for Benefit of Creditors. — So where 
 a deed of assignment for the benefit of creditors was not 
 recpiired by law to be recorded, the record of such deed Avas 
 held not to be notice to those who might purchase in igno- 
 rance thereof.* 
 
 § 121. Certificate of Emancipation. — So, also, was it 
 held that a certificate of emancipation was an instrument 
 
 1 Mayor v. Williams, 6 Md., 235; Williams v. Banks, 11 id., 198; Cook's 
 lessee V. Kell, 13 Md., 469. 
 
 -Wilder v. Brooks, 10 I\Iinn., 50; Digman v. McCollum, 47 Mo., 372. 
 But a subsequent convej'ance, to take advantage of a prior unregistered 
 insti-ument, must be supported by a consideration. Merriman v. Hyde, 
 ONeb., 120; infra, §226. 
 
 3 James v. Morey, 2 Cow., 246; Villard v. Robert, 1 Sti-obh. Eq., 393; 
 Moreau v. Detcliemendy, 18 Mo., 522; Parker?'. Hill, 8 Mete, 447; Jones 
 V. Roberts, 65 Me., 273; Parret v. Shaubhut, 5 Minn., 323; Washburn v. 
 Burnham, 63 N. Y., 301; Grimstone v. Carter, 3 Paige, 421; Betser v. 
 Rankin, 77 111., 289; Pitcher v. BaiTOws, 17 Pick., 361 ; Boggs v. Vamer, 
 (•) Watts & S., 469; Mott v. Clark, 9 Pa. St., 399; Graves v. Graves, 6 
 Gray, 391 ; Bossard v. Wliite, 9 Rich. Eq., 483 ; Galpin v. Abbott, 6 Mich., 
 17 ; Reed v. Coale, 4 Ind., 283 ; Brown v. Budd, 2 Ind., 442 ; Lewis v. Baird, 
 3 McLean, 56. 
 
 * Burnham v. Chandler, 15 Tex., 441.
 
 EECOEDABLE I?s"STRUMENTS. 83 
 
 not required to be recorded nor entitled to record.^ And 
 the same was held regarding a deed to a slave, though it 
 was decided that the recording of such deed was sufficient 
 to rebut the idea of concealment, and might be offered in 
 evidence as a circumstance tending to prove actual notice.^ 
 
 § 122. Executory Contract. — An executory contract, 
 except where its registry is provided for by law, would gain 
 nothing by being recorded. Such record would not be 
 notice of the existence of such contract to any persons 
 except those Avho actually saw the same.^ 
 
 § 123. Same. — And even where the ISTew York statute 
 made provision for the registry of such contracts,* it was 
 held that the record did not constructively impart notice to 
 any one, because the statute providing for their registry 
 was merely to preserve the evidence of the contract, and 
 not to give notice of its existence.^ 
 
 1 Common wealth v. Rhodes, 6 B. Mon., 171. 
 
 -'Bossard v. White, 9 Richardson's Eq., 483. 
 
 SMesick v. Sunderland, 6 Cal., 297. 
 
 nR. S., 763, §29. 
 
 5 Washburn t\ Burnham, 63 N. Y., 132; Boyd v. Schlesinger, 59 id., 
 ^01. The original and not a copy must be filed for record. Ladley v. 
 Oreighton, 70 Pa. St., 490.
 
 84 KOTICE BY REGISTKATION OF IXSTRUMENTS. 
 
 TTT. Statdtoey Pkekkquisites to Eecokding. 
 
 § 124. Statute Must be Complied With. 
 
 125. Necessity of Acknowledgment. 
 
 126. Certificate of Official Character Required, 
 
 127. Defective Acknowledgments Cured by Legislation. 
 
 128. Acknowledgment Unnecessary. 
 
 129. Execution Acknowledged by One of Two Grantors. 
 
 130. Officers Before Wliom Acknowledgment Made. 
 
 131. Lack of Unifomiity in Designating Officers. 
 
 132. Acknowledgment of Deed Affecting Land in Another State. 
 
 133. Justices of the Peace. 
 
 134. Acknowledging Officer a Party in Interest. 
 
 135. Defects Must Appear Upon the Face. 
 
 136. Officers De Facto. 
 
 137. Attesting Witnesses. 
 
 138. When Two Required. 
 
 139. Witnessed by One, Insufficient. 
 
 140. Defective Execution Held luTmaterial. 
 
 141. Record Inoperative Without Delivery. 
 
 142. Delivery After Recording, 
 
 143. Same — Effect of Subsequent Delivery. 
 
 144. Must be Recorded by Proper Officer. 
 
 145. Recorded by Officer De Facto. 
 140. Same. 
 
 § 124. Statute Must be Complied Witli. — The require- 
 ments of the statute, both in regard to the oflBcial character 
 of the acknowledging officer and the contents of his cer- 
 tificate, must be complied with in every substantial particu- 
 lar, or the record of the instrument will be inoperative as 
 constructive notice.^ 
 
 §125. Necessity of Ackiiowledgment. — In many in- 
 stances this construction of the statute has seemed to work 
 hardship upon those who had purchased upon the faith of 
 the record title. But not only is the construction given to 
 the statute by the courts strictly defensible, but the statu- 
 tory provision itself is dictated by the highest considera- 
 
 ' Shults V. Moore, 1 McLean, 520; Zeigler v. Shomo, 78 Penn. St., 357; 
 Pringle v. Dunn, 37 Wis., 449; Galpin v. Abbott, 6 Mich., 17; Graves 
 V. Graves, 6 Gray, 391.
 
 STATUTORY PREEEQUISITES TO KECOEDING. 85 
 
 tions of security to owners of real estate. "Were it not for 
 this check upon human cupidity the records might be cum- 
 bered with fraudulent conveyances from supposititious grant- 
 ors, which, while they failed to clothe the- grantees Avith 
 even a shadow of title, would suffice so to becloud the titles 
 of those who were purchasers from the true owners, as to 
 frighten timid purchasers and depreciate the value of prop- 
 erty. So, too, is this wise provision a wholesome restraint 
 upon forgery. The commission of this crime is rendered 
 less easy and safe when, to make it effective, it becomes 
 necessary for the forger to take a public officer into his confi- 
 dence.^ In some of the states, however, where deeds are 
 required to be acknowledged in order that they, or certified 
 copies thereof, may be oifered in evidence without further 
 proof of their execution, the omission of this formality does 
 not affect the record of the instrument as constructive notice.^ 
 
 § 126. Certificate of Official Character Required. — 
 Following this principle of construction of a statute requir- 
 ing the certificate of a clerk of a court of record, where the 
 acknowledgment was before a notary public in another 
 state, to the genuineness of the notary's seal and certificate, 
 it was held that a deed acknowledged beyond the limits of 
 the state before a notary whose official character, etc., was 
 not so certified, was improperly admitted to record, and did 
 not operate as constructive notice.* 
 
 § 127. Defective Acliiiowledgmeiits Cured hy Legisla- 
 tion. — In some of the states, however, legislation has come 
 to the relief of defectively acknowledged instruments. The 
 general tenor of these curative acts is that from the taking 
 
 iDe Witt V. Moulton, 17 Me., 418; Isham v. Bennington Iron Co.. 19 
 Vt., 230; Stevens v. Morse, 47 N. H,, 532; Johns v. Reardon, 3 Md. Ch., 
 57; Heistner v. Fortner, 2 Binn., 40; Blood v. Blood, 23 Pick., 80; 'Strong 
 V. Smith, 3 McLean, 362; Sumner v. Rhodes, 14 Conn., 135; Work v. 
 Harper, 24 ]\Iiss., 517; Reynolds v. Kingsbury, 15 la., 238; Graham v. 
 Samuel, 1 Dana, 166; Hodgson v. Butts, 3 Cranch, 140; Harper v. Reno, 
 1 Freem. Ch., 323; Thomas v. Grand Gulf B'k, 9 Sm. & M., 201. 
 
 2 Infra, § 128. 
 
 * Musgrove v. Bonser, 5 Oregon, 313.
 
 86 NOTICE BY KEGISTKATION OF IXSTEUMENTS. 
 
 effect of the statute all iustrumcuts pre\'iously recorded, 
 defectively acknowledged or attested, or not acknowledged 
 and attested at all, should operate as constructive notice to 
 purchasers to "the same extent as though they had been 
 properly acknowledged. Notwithstanding the apparent re- 
 trospective operation of statutes of this kind, they have 
 uniformly been approved by the courts and sustained as 
 constitutional.' 
 
 § 128. Ackiiowledgnieiit Unnecessary. — Under statutes 
 which may fairly be regarded as exceptional, the record of 
 a deed has been held to operate as constructive notice to 
 subsequent purchasers though defectively acknowledged. - 
 And where the statute provided that no instrument affect- 
 ing real estate should be of any vahdity against subsequent 
 purchasers for a valuable consideration without notice, un- 
 less recorded, and that where a deed had been acknowledged 
 and certilied in the manner prescribed by law, the original 
 might be read in evidence without further proof of the ex- 
 ecution,' it was held that as the statute was silent as to the 
 matter of acknowledgment as a prerequisite to tbt> registry 
 of the deed, and only required this formality as a condition 
 to its being read in evidence without proof of execution, a 
 deed in fact registered, even though it were not acknowl- 
 edged, woidd be constructive notice to subsequent grantees 
 who purchased for value, and without actual notice.* 
 
 § 129. Execntion Acknowledged by One of Two Grant- 
 ors. — And even in a case where the statute required the 
 instrument to be acknoAvledged to render its registry effect- 
 ive as notice to subsequent purchasers, it was held that an 
 
 ■ 1 Watson V. Mercer, 8 Peters, 88 ; Tate v. Stooltzfoods, 16 Serg. & 
 Rawle, 35; "Wallace v. Moody, 26 Cal., 387; Logan v. Williams, 76 111., 
 175; Gatewood v. Hart, 58 Mo., 261; Allen v. Moss, 27 Mo., 354; Barnet 
 V. Barnet, 15 Serg. & R., 72; Hughes v. Cannon, 2 Humph., 589; Reed 
 V. Kemp, 16 111., 445; Brown v. Simpson, 4 Kans., 76. 
 
 2 Gillespie v. Reed, 3 McLean, 377 ; Reed v. Kemp, 16 111., 445. (Under 
 Stat. July 21, 1837.) 
 
 3 Comp. Laws Kansas, p. 355. 
 
 * Simpson v. Mundee, 3 Kan., 172; Brown v. Simpson, 4 Kan,, 76.
 
 6TATUT0EY PEEEEQUISITES TO KECOKDING. ST 
 
 acknowledgment by one of two grantors met all the require- 
 ments of the statute, so as to render the record of the deed 
 not only constructive notice of the conveyance of the interest 
 of the grantor who acknowledged the deed, but also the in- 
 terest of the one who failed to acknowledge.^ The reasoning 
 in this case was that the object of the statute being to give 
 publicity to conveyances, that object was attained whenever 
 the deed was placed upon record, and it could not have been 
 recorded without authority, because, when it was acknowl- 
 edged by one, its registry was authorized as to him, and it 
 was quite clear that his conveyance could not be recorded 
 without recording that of the other grantor. 
 
 § 130. Officers Before Whom Acknowledgment Made. — 
 The officers empowered to certify to the acknowledgment 
 of instruments for record as designated by the recording 
 acts of the various states are numerous and diverse in their 
 characters. But perhaps the most universally recognized, 
 as well as the most generally resorted to, are notaries pub- 
 lic. In addition to these are judges, including justices of 
 the supreme court of tlie United States, and of the different 
 states and territories, county and probate judges, and nearly 
 all judicial officers of intermediate degree. Another class 
 that is quite generally recognized are justices of the peace. 
 These, as well as most other officers who do not use a seal 
 to authenticate their official acts, are less frequently em- 
 ployed, for the reason that it is generally necessar}^, when the 
 instrument affects property in another state, to fortify their 
 certification of the acknowledgment by the certificate of the 
 clerk of a court of record that such officer had been com- 
 missioned and qualified, and that his signature is genuine. 
 Besides those already mentioned are chancellors, clerks, 
 mayors, masters in chancery, court commissioners, prothon- 
 otaries, foreign ministers, consuls, and otlier diplomatic 
 officers, and commissioners especiall}'- appointed for that 
 purpose by governors of different states. Even surveyors, 
 and army officers of the rank of major, or of higher rank, 
 have been designated in some instances. 
 
 1 Shaw V. Poor, 6 Pick., 86.
 
 88 NOTICE BY KEGISTKATION OF INSTKUMENTS. 
 
 § 131. Lack of Uniformity in Designating Officers.— 
 
 It may not be out of place to remark here that much of the 
 apparent hai'slmess in the operation of the recording acts 
 arises from mistake in selecting the officers before whom 
 acknoAvledgments are made. These misfortunes are owing 
 to a want of uniformity in the statutes of the different 
 states. And it is no consolation, but rather an aggravation, 
 to reflect that the diversities have no better foundation than 
 local caprice. 
 
 § 132. Acknowledgment of Deed Alfecting Land in 
 Another State. — When the instrument executed in one 
 state affects the title to land in another, the law of the state 
 where the land lies, of course, will govern, and not that of 
 the place where the instrument is executed ancl acknow^l- 
 edged. As the validity of the record depends in no small 
 degree upon the officer Avhose certificate authenticates the 
 acknowledgment, the selection of the proper one becomes a 
 matter of importance. 
 
 § 133. Justices of the Peace. — It has been hold under a 
 statute limiting the jurisdiction of justices of the peace to 
 taking the acknowledgments of such instruments as affected 
 lands lying within their own counties, that where the ac- 
 knowledgment was taken before a justice, to a deed of land 
 in another county, the record of such deed failed to impart 
 constructive notice.' 
 
 § 134. Acknowledging Officer a Party in Interest. — So, 
 also, when there is any circumstance that disqualifies the 
 officer from acting in the particular instance, the record 
 will be vitiated. x\s, Avhen on the face of the deed it ap- 
 peared that the acknowledgment was before a party in inter- 
 est, it was held to be improperly recorded, and that the 
 record did not impart constructive notice to subsequent 
 purchasers.- 
 
 § 135. Defects Must Appear Upon the Face. — It would 
 be otherwise, however, where the instrument was fair upon 
 
 1 Bishop V. Schnekler, 46 Mo., 473; Musick v. Barney, 49 Mo., 458; 
 Gatewood v. Hart, 58 Mo., 261. 
 2 Stevens v. Hampton, 46 Mo., 404.
 
 STATUTORY PKEEEQUISITES TO EECOEDIKG. 89 
 
 its face, as the record will impart notice, notwithstanding 
 hidden defects in the execution or acknowledgment.^ 
 
 § 136. Officer De Facto. — But where the acknowledg- 
 ment is certified* by an officer de facto, though he be a 
 usurper of the office, if the jurisdiction extends to the tak- 
 ing of acknowledgments, the instrument will be properly 
 recorded, and the record will be as effective as though it had 
 been acknowledged before an officer de jure? Any subse- 
 quent proceeding by which the usurpation of the office might 
 be established would not affect the validity of his official 
 acts regularly performed. 
 
 §137. Attesting Witnesses. — In a majority of the states 
 of the Union the certificate of acknowledgment is all the 
 authentication required to admit the instrument to record. 
 It is only in the absence of such certificate that the execu- 
 tion is requii'ed to be proved by attesting witnesses, as a 
 substitute for the more convenient method of acknowledg;- 
 ment before an officer. But in some of the states, as we 
 have seen,* the attestation of witnesses is required in addi- 
 tion to the formal acknoAvledgments, and in some of these, 
 instruments copied upon the records without being so at- 
 tested have been held not to impart constructive notice b}'' 
 virtue of their registry.* 
 
 § 138. WlieuTwoRequiretT.— As where the execution of 
 a deed was required by statute to be attested by two sub- 
 scribing witnesses, and one of the names subscribed thereto 
 was that of the wife of the party executing it as grantor, 
 this defect was held to be of so substantial a nature that an 
 instrument so witnessed was not a deed, and not entitled to 
 be recorded ; consequently the record would not operate as 
 constructive notice.^ 
 
 ' Stevens v. Hampton, 46 Mo., 404. 
 2 Brown v. Lunt, 37 Me., 423. 
 
 3 S«jJ»ro, §99. 
 
 4 Pringle v. Dunn, 37 Wis., 449 ; Parret v. Shaubliut, 5 Mum., 323 ; Gal- 
 pin V. Abbott, 6 Mich., 17. 
 
 5 Carter v. Chami ion, 8 Conn., 549.
 
 90 NOTICE BY KEGISTRATION OF INSTKUMENTS. 
 
 § 1 39. Witnessed l)y One, Insufficient. — So when a mort- 
 gage required by statute to be attested by two ^ntnesses, in 
 addition to the acknowledgment, though regular in every 
 other respect, was executed in the presence of, and attested 
 by, but one witness, this was held to be a substantial defect 
 in the execution of the instrument, by reason of which it 
 was not recordable, and the unauthorized record thereof 
 would not affect subsequent pm'chasers or incumbrancers.^ 
 
 § 140. Detective Execution Held Immaterial. — But the 
 authorities are not uniform in exacting strict compliance 
 with legal requirements in the execution of the instrument 
 as a condition precedent to its admission to the records. 
 Where equitable interests are recognized as the proper sub- 
 jects of registration, the record of any instrument which 
 passes the equity would be good constructive notice of that 
 interest, and woidd be as conclusive upon subsequent pur- 
 chasers as though the legal title had passed to the grantee. 
 In pursuance of this doctrine, where a seal was recognized 
 as one of tlie essentials of a deed to real estate, and ac- 
 knowledgment Avas the only legal formality prescribed for 
 the admission to the public records of instruments whereby 
 legal or equitable titles or interests in real estate were 
 affected, it was held that a deed of conveyance from which 
 the seal was omitted j^assed an equitable interest to the 
 grantee, and, being duly acknowledged, was properly re- 
 corded, and the same effect was to be given to the record 
 of this unsealed deed as it woidd have been entitled to had 
 it been sealed. It was constructive notice to aU subsequent 
 purchascrs." 
 
 § 141. Record Inoperative Without Delivery. — xV fur- 
 ther prerequisite to a vahd registry is that the instrument 
 must be delivered before recorded. Therefore the deed 
 should not be deposited for record until after delivery. The 
 obvious reason of this rule is that untD. delivery the deed is 
 
 1 White V. Denman, 1 Ohio St., 110. 
 
 SMcClurg V. Phillips, 57 Mo., 214; Harrington v. Fortner, 58 Mo., 468; 
 Brydon v. Campbell, 40 Md., 331.
 
 t 
 STATUTORY PKEKEQTJISITES TO EECOEDING. 91 
 
 incomplete. It was not intended that instruments affecting 
 the title to real estate, which were by law required to be 
 recorded, should operate as constructive notice of a change 
 of ownership in the property which they were utterly 
 powerless to effect. A deed without dehvery is as inopera- 
 tive as though it had never been executed, and may be of 
 even less effect than it would be with a defective execution.^ 
 
 § 142. Delivery After Recording. — Where a deed was 
 executed and acknowledged by the grantor, who of his own 
 motion filed it for record, and, after it had been duly copied 
 upon the records, delivered it to the grantee, the record was 
 held not to impart notice from the date of filing, for the 
 reason that until delivered it was not a completed instru- 
 ment, as the title to the property was stQl in the grantor.- 
 
 § 143. Same — EfTect of Subsequent Delivery. — Where, 
 however, the deed is delivered after it has been recorded, it 
 does not lose all the benefits of the registration, but the 
 record will be notice to all who purchase subsequent to the 
 delivery ; but those who may have purchased during the 
 time between the registration and the delivery of the deed, 
 without notice, and for value, wiU be as effectually protected 
 as though the instrument had never been recorded at all.^ 
 
 § 143a. Delivery to the Recorder for the Grantee.— 
 It is not, however, to be understood, that to give the deed 
 effect it must be delivered to the grantee in person. The 
 title will pass as well when the deed is delivered to an in- 
 termediate party for the grantee, as when it is placed in 
 the hands of the latter. And if tliis delivery is made to 
 the recording olficer, not only that he may spread its con- 
 tents on the public records, but that he may act for the 
 grantee in accepting the instrument ; if the delivery be in- 
 tended by the grantors as irrevocable between himself and 
 the grantee, there is no reason why it should not operate 
 as effectually to vest title in the pm-chaser as though it had 
 
 » Parker v. Hill, 8 Mete, 447. 
 
 2 Parker v. HiU, 8 Mete, 447 ; Life Ins. Co. v. Eowand, 26 N. J. Eq., 389. 
 
 !> Parker v. Hill, 8 Mete, 447; Jones v. Roberts, 65 Me., 373.
 
 92 NOTICE BY REGISTRATION OF INSTRUMENTS. 
 
 been personally delivered. And if it has this effect the 
 recorcl will take effect from the date of the deposit of the 
 instrument with the officer.* The fact that the instrument 
 was lilod for record has been accepted as -prima facie evi- 
 dence of delivery ;2 but so far from its being regarded as 
 conclusive, it was held to be rebutted b}" evidence that the 
 execution and recording of the instrument Avas unknown to 
 the grantee at the time, although he had previously assented 
 to the conve3'ance.* 
 
 § 144. Must be Recorded by Proper Officer.— It would 
 seem scarcely necessary to add that, in order to render the 
 recording effectual, it should be the act of an officer duly 
 authorized and empowered to act in the premises. The 
 more copying an instrument upon the records by a volun- 
 teer who had not been previously deputized or authorized to 
 perform the work would not amount to constructive notice. 
 
 § 145. Recorded by Officer De Facto. — But where an 
 officer is acting under a government de facto, though it be 
 unlawful and revolutionary, if it be of paramount force 
 within the district where the officer exercises his functions, 
 his official acts, not directly in aid of the Avar power of the 
 unlawful government, will be regarded as valid and binding. 
 
 § 140. Same. — So the registry of a deed by a clerk who 
 continued to exercise his official duties in the state of Vir- 
 ginia after the passage of the ordinance of secession, while 
 the county Avas under control of the military poAver, Avas 
 held valid.* 
 
 iSee Gould v. Day, 94 U. S., 405; Cornall v. Duvall, 23 Ark., 136; 
 Mallory r. Stoddar, 6 Ala., 801; Tibbals v. Jacobs, 31 Conn., 428; Ren- 
 fro V. Han-ison, 10 Mo., 411; Church v. Gilmore, 1 A^^'ood, 656; Lady 
 Superior v. McNauiara, 3 Barb. Ch., 375; Marsh v. Austui, 1 Allen, 235; 
 Bennett r. Waller, 23 111., 97; Hays v. Davis, 18 N. H., 600; Mysoner v. 
 Fi-ench, 73 N. C, 609; Withers r. Jenkins, 6 Rich. S. C, 122. 
 
 -'Himes v. Keighbhngher, 14 111., 469, 
 
 3 Union, etc., Ins. Co, v. Campbell, 95 111., 267. 
 
 * Henning v. Fisher, 6 W, Va., 238. See, also, Texa-s v. Wliite, 7 Wall. 
 733; Thorington v. Smith, 8 id., 1 ; Griffin r. Cunningham, 20 Gratt., 81 ; 
 Sherfy v. Argenbright, 1 Heiskell, 128 ; Harrison v. Farmers' Bank of 
 Virginia, 6 W. Va., 1.
 
 EKROES IN THE EECOKD. 93 
 
 IV. EeEOES in the E.ECOED. 
 
 § 147. Effect of Error in Eecord. 
 
 148. Errors in Descrijition. 
 
 149. Effect of Filing and Subsequent EiTor in Recording. 
 
 150. To Wliom is the Officer Responsible for Errors? 
 
 151. Different Construction of the Statute. 
 
 152. The Notice Unaffected by EiTors in Recording. 
 
 153. Partial Omission. 
 
 154. Entire Omission. 
 
 155. Views of Early American Authorities, 1793. 
 
 156. Same — 1794. 
 
 157. Destruction of the Records Does Not Affect Notice. 
 
 158. Effect of Error in Amount Secured by Mortgage. 
 
 159. Error in Description. 
 
 160. Fraudulent Concealment by Officer. 
 
 161. Immaterial EiTors. 
 
 162. Principles Governing Errors in the Record. 
 
 163. Failure to Record in Proper Time. 
 
 164. The Index. 
 
 165. Failure to Index Does Not Affect Record. 
 
 166. Error in Index Does Not Affect Record. 
 
 167. Failure to Index Under Iowa Statute. 
 
 168. Index Sufficient to Put Upon Inquiry. 
 
 169. Index Held Part of the Record. 
 
 170. Grantee Cannot Control the Officer. 
 
 171. Mortgagee Not Affected by Officer's Failure. 
 
 172. Index No Part of the Record. 
 
 173. Same — Current of Authority. 
 
 § 147. Effect of Error in Record. — The record, in order 
 to fulfil its proper function, should be an exact copy of the 
 words and figures contained in the original, set forth in 
 their proper order of arrangement. The greatest care is 
 usually taken, in recording, to produce a literal transcript of 
 the instrument filed for record — even to the perpetuation 
 of its errors and omissions. But in prosecuting his labors 
 with the exact nicety required to avoid trifling errors, the 
 officer occasionally commits errors of a graver sort, by 
 which the record is liable to mislead. Errors of this kind 
 have been held to vitiate the record and destroy its effi-
 
 9i NOTICE BY KEGISTRATION OF INSTEUMENT8. 
 
 ciency as constructive notice.^ ISTot only should tlie record 
 be a faitliful transcript of the original, but it is held that it 
 must be recorded in the proper book in order to operate as 
 constructive notice.- "Where separate books are provided 
 for absolute conveyances, and are differently designated 
 from those used for mortgages, it has been decided that 
 Avliere a conveyance is recorded in the book of mortgages, 
 or a mortgage in the book of conveyances, it will not be- 
 come constructive notice for an}^ purpose whatever.' 
 
 § 148. Errors in Description. — As where the statute 
 rendered the filing of the instrument constructive notice to 
 all purchasers subsequent to the date of such filing, regard- 
 less of the time of copying the instrument upon the rec- 
 ords, it was held that, after the record was completed, 
 purchasers without actual notice of the contents of the 
 original had only constructive notice of what such record 
 would disclose ; and there being an error in the description, 
 by Avhich it appeared that the interest conveyed was the 
 undivided interest, whereas, in the original deed, it was the 
 individual interest, it was held that the notice was only of 
 the conveyance of the undivided half, as appeared by the 
 records.* So where the recorder inserted the name of the 
 wrong person as grantor, the record was treated as notice 
 of d^ convej^ance b}''- the individual whose name was erro- 
 neously entered upon the records as executing the instru- 
 ment.'* 
 
 § 149. Effect of Filing and Snbsequent Error in Re- 
 cording. — Many of the recent authorities seem to favor 
 the view that when the instruments have been spread upon 
 the records, they only give notice of the contents of such 
 
 ' Jennings v. "Wood, 20 Ohio, 261 ; Terrel v. Andrew County, 44 Mo., 
 309. 
 
 2 Van Thorniley v. Peters, 26 Ohio St., 471. 
 
 3 Leach's Appeal, 44 Pa. St., 140; Fisher v. Tunnai'd, 25 La. An., 
 179; Succession of Cordeviolle v. Dawson, 26 La. An., 534; Verges v, 
 Prejean, 24 La. An., 78. 
 
 *]Miller v. Bradford, 12 la., 14. 
 
 5 Jennings v. Wood, 20 Ohio, 261,
 
 EEEOKS IJ?" THE KECOED. 95 
 
 as are correctly recorded, although previous to their being 
 recorded the filing for record is complete notice of the con- 
 tents of the original. The pui'chaser is protected in placing 
 complete reliance upon the records as he finds them, and is 
 not bound to take notice of errors in recording of which he 
 has never been actually informed. This doctrine is fully 
 maintained and ably set forth in the case of Terrel v. An- 
 drew County,^ by Judge Wagner, who, in delivering the 
 opinion of the court, sa3^s : " The obligation of giving the 
 notice rests upon the party holding the title." If his duty 
 is imperfectly performed, the consequences must fall upon 
 him and not an innocent purchaser. In this case the fiUng 
 is recognized as sufiicient to protect the grantee, even where 
 the deed has not been recorded. In examining titles, one 
 first searches the records, and then examines the files in 
 case he finds nothing recorded. But if the record shows a 
 conveyance he will be guided by that, and will not consult 
 the files in order to examine the original. It was held that 
 the bond given by the recorder for the faithful perform- 
 ance of his duties was for the benefit of every person in- 
 jured by his dereliction of dut}^, and not merely for the 
 benefit of subsequent purchasers ; in this case for the one 
 who deposited the deeds and paid for having them recorded. 
 According to the views of the learned judge, it would seem 
 to be incumbent upon the grantee to supervise the work of 
 the ofiicer, or at least to examine the record when com- 
 
 1 44 Mo., 309. See, also, Lally v. Holland, 1 Swan (Tenn.), 396; Brydon 
 V. Camijbell, 40 Md., 331; Barnard v. Campau, 29 Mch., 163; Pi-ingle v. 
 Dunn, 37 Wis., 449; Van Tliorniley v. Peters, 26 Ohio St., 471; Calder 
 V. Chapman, 52 Pa. St., 359; Colomer v. Morgan, 13 La. An., 202; Suc- 
 cession of Cordeviolle v. Dawson, 26 id., 534; Fisher v. Tunnard, 25 id., 
 179; Verges v. Prejean, 24 id., 78; Grimstone v. Carter, 3 Paige, 421; 
 Jennings v. Wood, 2 Ohio, 261; Miller v. Bradford, 12 la., 14; Hughes 
 V. Dudnam, 8 Jones, 127; Peck v. Mallams, 10 N. Y., 509; Beekman v. 
 Frost, 18 Johns., 544; Young v. Wilson, 27 N. Y., 351; S. C, 24 Barb., 
 510; Babcock v. Bridges, 29 Barb., 427; Pettibone v. Griswold, 4 Conn., 
 158; Hart v. Chalker, 14 Conn., 77; Viele v. Judson, 82 N. Y., 32. In 
 some of the above cases the error by which the record was vitiated was 
 in the original instrument.
 
 96 NOTICE BY KEGISTEATION OF INSTEUSrENTS. 
 
 plcted, and compare it with the original. The officer seems 
 to act in the capacity of agent of the grantee. 
 § 1 50. To Whom is the OHieer Responsible for Errors ? — 
 
 If this were a purely speculative question, and not one 
 which must be determined by the weight of authority, one 
 might be led to inquire why it is that for such acts of non- 
 feasance or misfeasance these officers are not always re- 
 quired to answer to the same class of persons. As will 
 presently appear, the innocent purchaser is in some in- 
 stances regarded as the one whose rights are prejudiced by 
 acts of negligence, somewhat similar to those treated of in 
 the opinion above quoted, and the record remains unques- 
 tioned.^ 
 
 § 151. DifFereut Construction of the Statute. — The 
 case of Terrel v. AndreAV County may be regarded as set- 
 tling the law upon this question for the state within Avhose 
 jurisdiction it was decided; but the principles upon which 
 the decision is based not only may be questioned, but con- 
 fronted by a very respectable array of authorities express- 
 ing opposite views. 
 
 § 152. The Notice Unaffected by Errors in Record- 
 ing. — In a case where the records had been mutilated and 
 partially destroyed, Breese, J., who delivered the opinion 
 of the court, in commenting upon the doubts raised as to 
 whether the deed had been properly recorded in the first 
 instance, says: " But assuming that the deed was not prop- 
 erly recorded in the first instance, we then say that it is 
 sufficient that the deed was left for record by the grantee." ^ 
 
 § 153. Partijil Omission. — So in another case arising 
 in the same state, it was held that Avhen the deed is left 
 Avith the officer, the grantee has done all he is required to 
 
 1 Throckmorton v. Price, 28 Tex. , 605 ; Franklin v. Cannon, 1 Root 
 (Conn.), 500. See, also, infra, § 152 etseq.; Temple v. The People, 6 
 Bradw., 378. 
 
 - Merrick u. Wallace, 19 111., 486; Weise v. Barker, 2 Pac. Rep., 919 
 (Colo.). See Gammon v. Hodges, 73 111., 140; Shannon v. Hall, 72 111., 
 354; Mims v. Mims, 35 Ala., 23.
 
 EKKOKS IN THE EECOKD. 97 
 
 do, and Ms rights will be protected though the recorder 
 records only a part of the deed.' 
 "§ 154. Entire Omission. — So, also, was it held in the 
 case of Throckmorton v. Price,- that a grantor leaving his 
 deed for record is not bound to see that it is recorded. His 
 filing it is regarded as equivalent to its registration so far 
 as he is concerned, and his rights will be protected though 
 it be not recorded at all.' 
 
 § 155. Tiews of Early American Authorities, 1793. — 
 That there is no novelty in this view of the law will ap- 
 pear by consulting the earlier American authorities. In the 
 case of Cannon v. Franklin,* decided in Connecticut as early 
 as 1793, it was held, where a deed had remained for a long 
 time in the office of the clerk without being recorded, 
 through no fault of the grantee, that he should not be prej- 
 udiced by the negligence of the officer, but the deed should 
 be regarded as recorded from the time it was left with the 
 ofiicer for that purpose.^ 
 
 § 156. Same — 171)4. — In another case a mortgage was 
 delivered to the clerk for registry, on June 26, 1766, and after 
 an indorsement was made thereon to the effect that it was 
 then duly registered, it was returned to the mortgagee. 
 Subsequently, in the year l771, the land was conveyed by 
 the mortfi-aofor to another, and the deed was recorded the 
 same year. The land was conveyed by deed to still another 
 purchaser, without notice, in 1772, and the deed recorded 
 immediately ; the purchaser going into possession in 1773. 
 The mortgage was not actually copied upon the records 
 until as late as 1794:; yet in an action of ejectment by the 
 mortgagee, he was held to be entitled to the possession, as 
 he was not at fault m the matter of registration. The de- 
 posit of the mortgage with the clerk was all the duty which 
 
 1 Riggs V. Boylan, 4 Biss., 445; Oats v. Walls, 28 Ark., 244. 
 
 2 28 Tex., 605 ; McGregor i\ Hall, 3 Stewart & Porter (Ala.), 307. 
 sPasch. Dig., §210. 
 
 * 1 Root, 500. 
 
 ^Hartmyer v. Gates, 1 Root, 61 [decided in 1774]; McDonald v. Leach, 
 Kingley (Conn.) 72 [1786]. 
 7
 
 OS NOTICE BY REGISTRATION OF INSTRUMENTS. 
 
 the law imposed upon him, and all subsequent purchasers 
 were thereby constructively notified of the incumbrance.* 
 
 § 157. Destruction of the Eecords Does Not Affect 
 Notice. — It has also been decided that where the deed has 
 been once recorded, a subsequent burning or other destruc- 
 tion of the records will not render the. same ineffectual as 
 notice-to subsei]uent purchasers.^ Tliis latter position will 
 hardly be disputed, j^et it is supported by the same reason- 
 inir as that ur^ed in defense of the constructive notice of a 
 deed properly deposited for record, and omitted, or improp- 
 erly transcribed, by a negligent officer. 
 
 § 1 58. Effect of Error in Amount Secured by Mort- 
 gage. — Upon the other hand, it was decided where a clerk, 
 in recording a mortgage, committed an error in transcrib- 
 ing the amount secured, and rendered it three hundred in- 
 stead of tlirce thousaiul dollars, that the record was only 
 notice of the amount therein expressed.* 
 
 § 15t). Error in Description. — So where, in recording, 
 a conveyance of the east half of a tract of land was re- 
 corded by mistake as the west half the error was held to 
 vitiate the record.* 
 
 § IGO. Frauilulent Concealment by Officer. — And even 
 ■where the officer designedly, and for the purpose of con- 
 cealment and fraud, copied a deed deposited with him for 
 record into a book which was no longer used as a record of 
 titles, the deed was held not to be recorded, and failed to 
 impart notice constructively.^ 
 
 § KJl. Immaterial Errors. — But mere clerical errors, 
 such as a mistake in a letter in the name of a trustee in an 
 assignment, or when the assignment is stated to be to one 
 person and the habendum is to another, will certainly not 
 
 1 Jiukl V. Woodruff, 2 Root, 298. 
 
 -' Alvis V. Morrison, 63 111., 181 ; Shannon v. Hall, 72 111., 354; 23 Am. 
 Rep., 146. See note to Alvis v. Morrison, 14 Am. Rep., 117. 
 
 3 Frost V. Beekman, 1 John.s. Ch., 288; Beekman v. Frost, 18 Johns., 
 544; Peck v. MaUams, 10 N. Y., 509. 
 
 * Sanger v. Craigue, 10 Vt., 555. 
 
 5 Sawyer v. Adams, 8 Vt., 172.
 
 EKROES rST THE EECOKD, 99 
 
 rob tlie record of its cliaracter as constructive notice.^ So, 
 where there is enough upon the record to put a prudent man 
 upon inquiry, it has generally been held sufficient to amount 
 to constructive notice, although the property is misdescribed 
 in the record.^ 
 
 § 162. Principle (xoyeriiing Errors in the Record. — In 
 order to arrive at a correct conclusion, upon principle, in 
 regard to the conflicting rights of prior and subsequent ])ur- 
 cliasers, as affected by the registry laws, one of the most 
 pertinent inquiries is. For lohose 'benefit was the statute en- 
 acted? Or, in other words, whom does it protect, and upon 
 Avhom does it impose additional burdens? A brief glance 
 at the common law status of the parties will answer these 
 questions at once. The prior grantee was secure without 
 the aid of the statute, whether the subsequent pm'chaser 
 knew of the existence of his deed or not. The purchaser 
 had the most imperfect means of ascertaining the condition 
 of the title. The statute was interposed for the purpose of 
 furnishing him with the necessary information, and in 
 doing so it was found necessary to impose an additional 
 obligation on the prior grantee. If, then, the law is prima- 
 rily for the protection of the subsequent purchaser, it 
 would seem that any breach of duty by the officer was a 
 violation of his rights in the premises, and the delinquent 
 official should be required to answer to him. Tlie conclu- 
 sion seems to follow inevitably, that, from the deposit of the 
 instrument with the proper officer for record, it should be 
 regarded as constructive notice to all persons who subse- 
 quently deal with the title, notwithstanding any errors by 
 the officer in recording the instrument, or even when he 
 neglects to record it at all. The eiffect of an error commit- 
 ted by the recorder must be carefully distinguished from 
 the consequences of misleading errors in the original. Even 
 where the statute makes the filing of the instrument notice 
 to all persons subsequently deahng with the title, the error 
 
 iWyatt V. Barwell, 19 Vesey, Jr., 435; Ince v. Everard, 6 T. E., 545. 
 2 Partridge v. Smith, 2 Biss. C. Ct., 183.
 
 loo NOTICE BY KEOISTKATIOX OF INSTRUMENTS. 
 
 by which the purchaser is misled takes effect as soon as the 
 instrument is deposited with the officer. It is the fault of 
 the party who gives the notice and not of the officer who 
 transcribes the erroneous instrument. In the other case the 
 duty of the grantee is fully accomplished when a perfect 
 instrument is deposited in the hands of the proper officer, 
 and he should not be held responsible for the latter's negli- 
 gence in discharging a public duty.' 
 
 § 163. Failure to Kecord in Proper Time. — So, where 
 a time is fixed by law within which an instrument is re- 
 quired to be recorded in order to operate as notice to 
 subsequent purchasers, and the officer, through press of 
 business, negligence, or dishonest motives, fails to record it 
 within such a time, his failure will not be allowed to work 
 prejudice to the interests of the party who is interested in 
 maintaining the validity of the record, when the instru- 
 ment has been deposited with the recorder within the stat- 
 utory period.- 
 
 § 164. The Index. — There are other errors committed 
 by the recording officers, scarcely less misleading in their 
 character, or disastrous in their operation, than mistakes or 
 omissions in copying the instruments fi[led for record. The 
 index to the record is of such importance that without 
 it the cost of emplo}ing a competent person to examine 
 the records would, in some instances, equal, if not exceed, 
 the value of the property to be conveyed. These are, in 
 some cases, held to be essential parts of the records, in 
 the absence of which subsequent purchasers would not be 
 charged with notice.' In this case it was so held, though 
 the question was not essential, and had nothing to do with 
 a detennination of the controversy ; as the purchaser was 
 charged with actual notice of the recorded but non-indexed 
 mortgage. The question was also discussed in Schell v. 
 
 1 Hughes V. Dudnam, 8 Jones, 127. 
 SHaiTold V. Simons, 9 Mo., 326. 
 »Speer v. Evans, 47 Penn. St., 141.
 
 EEKOKS IN THE RECOKD. 101 
 
 Stein/ but no decisive conclusion arrived at, for the reason • 
 that in that case the deed was properly entered, as the stat- 
 ute required, in the index to the volume in which it was re- 
 corded, but was omitted from the general index kept by the 
 recording officer, for which, however, the law made no pro- 
 vision. In this case the court regarded the officer as rest- 
 ing under an obligation to furnish the necessary information 
 to searchers of the records, and if he voluntarily provided 
 a general index, upon the correctness of which they were 
 induced to rely, he was liable to such as were misled by 
 failure to make entries therein according to his usual custom. 
 
 § 165. Failure to Index Does Not AfiFect Record. — 
 Where, however, the question has come up directly for de- 
 cision, it has been held, in the majority of cases, that the 
 failure to index is an act of misprision for which the officer 
 is liable to the searcher of the records who is thereby misled 
 to his injur}^^ The grounds upon which this is placed, in a 
 recent case,^ seem very reasonable. It is claimed that the 
 ease with which what is on the records may be found is not 
 a matter which concerns the owner of the deed, but rather 
 the searcher of the records. The index is made for the 
 benefit of the public who may desire to use it for the pur- 
 pose of investigating the condition of titles to property, 
 and not for the benefit of the owners of the property, 
 who know that they have done all that the law requires of 
 them in filing their evidence of title for record.^ 
 
 § 166. Error in Index Does Not Affect Record. — A case 
 decided under the Iowa statute presents some striking if 
 not perplexing features.^ The statute provides for index- 
 ing all instruments filed. Such index to show the names of 
 
 1 76 Peiin. St., 398. 
 
 2 Curtis V. Lyman, 24 Vt., 338; Bishop v. Schneider, 46 Mo., 472; B'd 
 of Com'rs v. Babcock, 5 Or., 473; Green v. Carrington, 16 Ohio St., 548; 
 Speer v. Evans, 47 Pa. St., 141. 
 
 3 Chatham v. Bradford, 50 Ga., 327. 
 
 < Mut. Life Ins. Co. v. Dake, 1 Abb. (N. C), 381 ; Board of Com'rs v. 
 Babcock, 5 Or., 472; Green v. Carrington, 16 Ohio St., 548. 
 8 Barney v. Little, 15 Iowa, 527.
 
 102 NOTICE BY REGISTRATION OF INSTRUMENTS. 
 
 grantors and grantees, the time of tiling, the date of the 
 instrument, its character, and the book and page where the 
 record may be found. The entries in the index, with the 
 exception of the page, are completed before the instrument 
 is required to be recorded in extenso. The views expressed 
 by Judge Dillon in delivering the opinion of the court in 
 this case are not in entire accord with the authorities here- 
 inbefore cited. But the statute is peculiar in respect to the 
 feature of indexing. Compliance with its requirements, in 
 this particular, renders the entries made " constructive notice 
 to all the Avorld of the rights of the grantee conferred by 
 such instrument," and the instrument may be copied into 
 the records " as soon as practicable," after which the index 
 entries are completed by inserting the number of the page 
 upon which the instrument is recorded. In this instance the 
 recording officer discharged his duties without substantial 
 error or omission until he came to the final act required in 
 order to complete the performance of his functions in con- 
 nection with this particular deed. He entered the wrong 
 jpage of the record opposite his entries in the index ; so that 
 instead of directing the attention of the examiner of the 
 records to the page where the instrument, briefly described 
 in the al})habetical index, was copied at length, he was re- 
 ferred to a different page where another deed was recorded, 
 from the same grantor, but to a different grantee. This was 
 held sufficient to put a purchaser upon inquiry, and by the 
 dissimilarity between the names of parties as they apj^eared 
 in the index and on the page referred to, suggest an error 
 which would have been fully disclosed by a more careful 
 search. 
 
 § H>7. Failure to Index Under Iowa Statute.— This 
 would seem to be a sti'onger case in support of the validity 
 of records, as constructive notice, regardless of the index, 
 than that of Chatham v. Bradford, were it not for the 
 reasoning by which it is supported. If an index, mislead- 
 ing on account of a palpable error, might not vitiate the 
 record, it could be claimed, with a fair show of reason, that
 
 EKROKS IN THE EECOED. 103 
 
 a perfect record with no index would be valid. But this 
 court, earlier in the same term, decided that a failure to 
 index rendered the record void as to subsequent purchasers 
 without actual notice.^ This, too, under an earher statute, 
 which had not the same provisions as to indexing. The 
 portion prescribing the manner of indexing was not, as it 
 was in the later statute, preceded by the statement that no 
 instrument affecting real estate should be of any validity 
 against subsequent purchasers, etc., "unless recorded in the 
 office of the recorder of deeds, in the county in which the 
 land hes, as hereinafter provided.'''' The earlier statute also 
 contained a provision tliat instruments required to be re- 
 corded should, " from the time of filing the same with the 
 recorder, impart notice to all persons of the contents 
 thereof." The court, however, in the case last cited, held, 
 as in the case of Terrel v. Andrew County,- that the notice 
 by filing was only temporary, and ceased when the instru- 
 ment had been spread upon the records, and a failure to 
 index rendered the record worthless. In so deciding, the 
 eminent judge who delivered the opinion in both the Iowa 
 cases followed the authorities in that state,^ and has in turn 
 been followed by others to the same effect.* 
 
 § 168. Index Sufficient to Put Upon Inquiry. — Where, 
 however, the requirements of the statute have been complied 
 with in every substantial particular, a mere omission b}^ the 
 recording officer to make any of the entries in his index 
 which the act prescribes, where such omission leaves enough 
 to direct the attention of one who examines the index to 
 the proper book and page, or is even sufficient to put a cau- 
 tious or prudent man upon inquiry, the records will not be 
 thereby rendered void, as notice to purchasers. As, where 
 the description was omitted and instead thereof the recorder 
 
 I Barney V. McCai-ty, 15 la., 510. 
 2 44 Mo., 309. 
 
 ^Miller v. Bradford, 12 la., 14; Noyes v. Harr, 13 id., 570; Breed v. 
 Conley, 14id.,269. 
 < Gwinn v. Turner, 18 la., 1 ; Whalley v. Small, 25 id., 184.
 
 104 NOTICE BY REGISTRATION OF INSTRUMENTS. 
 
 inserted the words, " see records." This was held not to be 
 misleading, and hence did not vitiate the record.^ So, too, 
 where instead of the description Avere the words " certain 
 lots of land," the court held this sufficient to put a purchaser 
 upon inquiry, and hence to charge him with notice construct- 
 ively. - 
 
 § 169. Index Held Part of the Record. — In a case 
 decided under a statute clothing the index Avith the charac- 
 ter of notice to subsequent purchasers, it Avas held to be a 
 record by Avhich they were charged with constructiA'e notice, 
 even Avhen there Avas a substantial error in the record itself.'' 
 
 § 170. Orautee Cannot Control the Officer. — It seems 
 the more reasonable doctrine that the neglect of clerical 
 duties b}' the officer should not be chargeable to the grantee 
 or mortgagee, AA^ho, in depositing the instrument for record, 
 does so in obedience to the mandate of the laAv. The doc- 
 trine of respondeat superior cannot apply as though the 
 officer were the priA^ate agent or servant of the party whose 
 deed is deposited. He is not chosen by the party depositing 
 the instrument to perform the duties of filing, recording 
 and indexing, but is designated by the law as the propei' 
 officer, and the grantee or mortgagee is compelled to appl a' 
 to him and none other, and having done so, has no control 
 whatever over his action.* 
 
 §171. Mortgagee Not Affected by Officer's Faihire. — 
 It has therefore been justly held, where the law made it 
 incumbent upon the county clerk to number mortgages of 
 chattels when deposited for record, that his failure to per- 
 form this duty in any instance should not impair the rights 
 of the mortgagee, hoAvever much subsequent purchasers 
 might be misled to their injury by the omission.^ 
 
 § 172. Index No Part of the Record. — So, also, AAhcre 
 the statute required the clerk to make an index of the rcc- 
 
 ' Calvin v. Bowman, 10 la., 529; White v. Hampton, 13 id., 259. 
 
 2Bostwick V. Powers, 13 la., 456. 
 
 3 Shove V. Larsen, 23 Wis., 143. 
 
 * Infra. 
 
 'Dodge V. Porter, 18 Barb., 193.
 
 EEEOES m THE EECOED. 105 
 
 ords, it was held that this duty was prescribed for the pur- 
 pose of furnishing facilities for those interested in searching 
 the records. And that the index being no part of the rec- 
 ords themselves, it was not essential that the instrument 
 should be indexed in order to become constructive notice to 
 subsequent parties.^ 
 
 § 173. Same — Current of Authority. — The fact that 
 questions of this kind are decided by courts with different 
 and independent jurisdiction, each construing its own stat- 
 utes, may account, to some extent, for the diversity of 
 opinion upon the importance of indexing the records. But 
 the difference is too marked and decided to be altogether 
 accounted for in this manner. It will be noticed that in 
 neighboring states having registry laws with substantially 
 the same provisions in this respect, the statutes have received 
 opposite constructions. But the current of authority seems 
 to be decidedly against the doctrine that the index is an 
 essential part of the record.- 
 
 1 Curtis V. Lyman, 24 Vt., 338. 
 
 2 See cases cited swpra.
 
 106 NOTICE BY EEGISTRATION OF INSTBUMENTS. 
 
 V. Ereoks by the Paet? Filing the Instktjment. 
 
 § 174. Misleading Errors in Original 
 
 175. Insufficient Description. 
 
 176. En-ors in Numbering. 
 
 177. Description of Cliattels. 
 
 178. Description of Debt Due. 
 
 179. Conditions Insufficiently Expressed. 
 
 180. Sufficient Certainty. 
 
 181. Approximate Certainty. 
 
 182. Mortgage Securing Future Advances. 
 
 183. Description Which May be Rendered Certain by Inquiry, Suffi- 
 
 cient. 
 
 184. EiTors Not Misleading. 
 
 185. Immaterial Where Purchaser Not Misled. 
 
 186. Instrvmieuts Should be Filed for Record in Their True Character. 
 
 187. Deed With Defeasance is Mortgage. 
 
 188. Defeasance Must be Recorded as Mortgage. 
 
 189. Parol Defeasance, Deed Recorded as Mortgage. 
 
 190. Sheriff's Deed Recorded as Mortgage, Insufficient. 
 
 191. Record of Secret Mortgage. 
 
 192. Must be Filed in Proper County. 
 
 193. Effect of Filing in AVrong County. 
 
 194. Deposit of Chattel Mortgage in Wrong Town. 
 
 195. Change of County, Subsequent to Fihng, Will Not Affect Reg- 
 
 istry. 
 
 § 174. Misleading Errors in Original. — There are er- 
 rors, mistakes, omissions and ambiguities, such as are cal- 
 culated to mi'slead an examiner of the records, for which 
 the recording officer is in no way responsible. This is when 
 the fault lies in the original. In such cases, if the discrep- 
 ancy is of a substantial nature, the record is vitiated. As 
 where the property intended to be conveyed was the east 
 half of a lot, and was described in the deed as the west half 
 the record failed to give notice of the conveyance of the 
 propert}'' intended,' 
 
 § 175. Insnfflcient Description. — Also, where a transfer 
 of a lease of real estate was made by a separate instrument, 
 which, being a transfer of an interest in land, was entitled 
 
 1 Sanger v. Craigue, 10 Vt., 555 ; Lally v. Holland, 1 Swan (Tenn.), 396.
 
 EEKOKS Br PAKTY FILING ESTSTEUMENT. 107 
 
 to be recorded, it was held that in order to operate as con- 
 structive notice to subsequent purchasers, it should contain 
 such a description, not only of the premises, but of the 
 term, that the original lease could be recognized as the thing 
 transferred.^ 
 
 § 176. Errors in Niiml)erinf?. — The purchaser at an ex- 
 ecution sale of land previously conveyed by a deed in which 
 the land is so indefinitely described or erroneously num- 
 bered that it cannot be identified, or is likely to be mistaken 
 for another tract, is not affected by the record of such prior 
 deed with notice of what was intended to be thereby con- 
 veyed.- 
 
 § 177. Description of Chattels. — The record of a mort- 
 gage of chattels, in order to operate as notice to subsequent 
 purchasers, must contain such a description of the things 
 included in the mortgage as to enable one examining the 
 records to identify the property. As where cows were 
 mortgaged and left in possession of the mortgagor, their 
 calves, brought forth after the execution of the mortgage, 
 would not be included therein unless mentioned.* 
 
 § 178. Description of Debt Due. — So, where the instru- 
 ment was a mortgage, and the description of the debt 
 secured was " a debt due from the mortgagor to the mort- 
 gagee by note, dated lOtli of May, 1834, on demand, with 
 interest," without specifying the amount, it was held not to 
 be notice to subsequent purchasers of a valid security, for 
 the reason that the spirit of the recording acts I'equires the 
 record to disclose, with as much certainty as possible, the 
 state of the incumbrances upon the property.* 
 
 § 17 9. Conditions Insufficiently Expressed. — So, also, 
 where the condition of the morto^ao-e was that the luort- 
 gagor should pay all notes indorsed by the mortgagee for 
 
 1 Mai-tindale v. Price, 14 Ind., 115. 
 
 2 Bank v. Ammou, 27 Penn. St., 172; Nelson v. Wade, 21 la., 49; Her- 
 man V. Deming, 44 Conn., 124; Miiri^hy v. Hendricks, 57 Ind., 593: 
 Mundy v. Vawter, 3 Gratt., 518; Thorp v. Merrill, 21 Minn., 336; Rodgers 
 V. Kavanaugh, 24 HI., 583. 
 
 '■* Winter v. Landphere, 42 la., 471. 
 
 * Hart V. Chalker, 14 Conn., 77.
 
 108 NOTICE BY KEGISTKATION OF INSTRUMENTS. 
 
 the mortgagor, and all receipts held by the mortgagee 
 against the mortgagor, the record of such mortgage was 
 held void as against creditors of the mortgagor,^ 
 
 § 1 80. Sufticient Certainty. — On the other hand, where 
 the mortgage described the debts secured with such partic- 
 ularity that there could be no difficulty in determining by 
 inquiry what debts were and what were not embraced in 
 the description, the maxim, " That is certain which may be 
 made certain," will be applied. It has accordingly been 
 held not to be requisite that the condition should be so com- 
 pletely certain as to preclude the necessity of extraneous 
 inquiry.- 
 
 § 181. Approximate Certainty. — And where the debt 
 secured ^vas described in the defeasance clause as follows : 
 " If I shaU well and truly pay to B., on demand, with in- 
 terest, the sum of $1,500, which I am indebted to him, on 
 book and by several notes, the exact date and amount not 
 recollected, but amounting, in the whole, together with the 
 debt on book, to the sum of $1,500 07' thereabouts, then this 
 deed shall be void ; " and it appearing that when the mort- 
 gage was given the mortgagor was in failing circumstances 
 and had not time to ascertain the precise amount to be se- 
 cured, which was, in reality, in excess of $1,500, the mort- 
 gage was held valid as against other creditors and subsequent 
 incumbrancers, and the record operated as notice to them 
 to the extent of the amount mentioned therein,' 
 
 § 182. Mortgage Seeming Futnre Advances. — It has 
 also been held that the record of a mortgage is not intended 
 as notice of the amount due thereon, and is valid when 
 future advances are secured, without specifying the amount 
 with particularity.* 
 
 iPettibone v. Griswold, 4 Conn., 158. 
 
 2 Young f. Wilson, 27 N. Y., 351; MoneU v. Smith, 5 Cow., 441; Rob- 
 inson V. Williams, 23 N. Y., 380; Stoughton v. Pasco, 5 Conn., 442; 
 Merrills v. Swift, 18 id., 257; United States v. Hooe, 3 Cranch, 73; 
 Ki-amer v. Farmers' and Mechs.' Bank, 15 Ohio, 253. 
 
 SMerriUs v. S^vift, 18 Conn., 257. 
 
 <BeU V. Fleming, 13 N. J. Eq., 13.
 
 EEEOES BY PAETT FILING INSTRUMENT. 109 
 
 § 183. Description Which May be Rendered Certain 
 by Inqniry, Sufficient. — In order that the record of a deed 
 shall be vitiated by errors or uncertainty in the description, 
 or other part of the original, the error must be in a matter 
 of substance, or the uncertainty one which cannot be ren- 
 dered certain by such inquiries as the record would naturally 
 excite. So, where there was a contract to convey, in which 
 the property was descrilDed as so many acres of " my land 
 which I hold in the South Mountain, anywhere on the turn- 
 pike road between ISTewman's and the bridge over the Cana- 
 dequingt creek," it was held that this gave the covenantee 
 a right of selection within the prescribed hmits, and the 
 record of the instrument was constructive notice of that 
 right.^ 
 
 § 184. Errors Not Misleading. — So, also, where, in a 
 deed, the number of the town and range were transposed, 
 so that there was no such piece of land in the county as 
 described in the deed, it was held that the record of the 
 deed disclosed enough to put a prudent man upon inquiry, 
 and as such was suiBcient notice to subsequent purchasers 
 of the land actually intended to be conve3"ed.2 
 
 § 185. Immaterial Where Purchaser Not Misled. — The 
 error in the deed, in order to vitiate the record thereof, 
 must be one calculated to mislead the pm'chaser. There- 
 fore, if the purchaser had any knowledge of the error, or 
 from his knowledge of the property and its surroundings, 
 would have been able to interpret the record and give it the 
 meaning it was supposed and intended to convey, it Avoidd 
 be sufficient to charge him with notice,^ As where a mis- 
 take in the record was discovered by the attorney of the 
 subsequent purchaser, such mistake being in the description 
 "West" instead of "Korth," the fact that, this was easily 
 recognized by the attorney of the purchaser while engaged 
 
 •Brotherton v. Livingston, 3 W. & S., 334. 
 
 2Parti-idge v. Smith, 2 Biss., 183. This is probably as strong a case as 
 the rule will support. 
 3Erickson v. Raflerty, 79 111., 209.
 
 110 NOTICE BY KEGISTKATION OF INSTKHMENTS. 
 
 in examining the records for his principal, manifested such a 
 knowledge of the property and its situation' that the mis- 
 take would not vitiate the record.* 
 
 § 18G. Instruments Should be Filed for Becord in 
 Their True Character. — Another important requirement 
 in regard to the registry of instruments, in order that they 
 may operate as constructive notice, is that they should be 
 registered in their true characters. ■ Otherwise they may 
 fail to give notice, not only of the estate or interest they 
 arc intended to affect, but of that which they on their face 
 purport to convey. As where an instrument is drawn and 
 executed in the form of an absolute deed, which is intended 
 only to take effect as a mortgage, it should be registered 
 as a mortgage, and not as an absolute deed. The reason of 
 this is that the instrument, not being an absolute convey- 
 ance of the property, its registry as such cannot charge any 
 one with notice of its contents. It being in reality a mort- 
 gage, it should be recorded where the searcher for mortgeges 
 would be most likely to find it — in the record of mort- 
 gages.2 
 
 § 187. Deed With Defeasance is Mortgage. — So Avhere 
 there w^as a written defeasance to an absolute deed, and the 
 deed was recorded among the absolute deeds, but the de- 
 feasance was unrecorded, the two instruments were treated 
 as one, and that one a mortgage, which, not being properly 
 recorded, through the negligence of the parties interested, 
 was postponed to the lien of a subsequent judgment.' 
 
 § 188. Defeasance Must be Recorded as Mortgage. — 
 So, also, where a separate defeasance was recorded, but in 
 
 'Jones V. Bamford, 21 la., 217; Thornliill v. Burthe, 29 La. An., 639; 
 Slater v. Breese, 36 Mich., 77; Shepard v. Sliopard, 36 Mich., 173; Boon 
 V. Piei-pont, 28 N. J. Eq., 7. 
 
 2Dey V. Dunham, 2 Johns. Ch., 182; James v. Morey, 2 Cowen, 246; 
 Manufacturers' Bank v. Bank of Pennsylvania, 7 Watts & Serg., 335. 
 
 ^Friedly v. Hamilton, 17 Serg. & Rawle, 70; Brown v. Dean, 3 Wend., 
 208; Jaques v. Weeks, 7 Watts, 261; Edwards v. Trumbull, 50 Penn. 
 tSt. , 509. In Pennsylvania it would be held good for nothing, either as a 
 conveyance or as a mortgage. Corpman r. Baccastow, 84 Pa. St., 363.
 
 EEROES BY PAETY FILING INSTEUMENT. Ill 
 
 the same book with the deed instead of in the record of 
 mortgages, it was held not to amount to constructive notice 
 to a creditor, for the reason that it would not He in his way 
 if examining the record for mortgages.^ 
 
 § 189. Parol Defeasance, Deed Recorded as Mort- 
 gage. — And even where there is no written defeasance to 
 the deed, but the contract to re-convey rests entirely in 
 parol, though upon the face of it was an absolute deed ; or 
 when the mortgage is so imperfect in form as not to give 
 adequate expression to the intention of the parties, still in 
 either case the intention with which the instrument was 
 drawn, being the true guide to its construction, will govern 
 its registration. If recorded otherwise than as a mortgage, 
 the record loses its character as constructive notice to pur- 
 chasers or creditors.- 
 
 § 1 90. Sheriff's Deed Recorded as Mortgage, Insuffi- 
 cient. — So, where a sheriff's deed was at his instance re- 
 corded in the mortgage book instead of the record of 
 absolute deeds, it was held that this error rendered the 
 record void, and if the deed were not properly recorded 
 until after attachment by a creditor, the record could not 
 affect the seizure.* 
 
 § 191. Record of Secret Mortgage. — There is perhaps 
 a stronger reason for discrediting the record of a secret 
 mortgage because of its being recorded in the wrong book, 
 than there would be for drawing the lines with the same 
 strictness in cases where the fault Hes entirely with the re- 
 cording officer. In the one case the fecord is misleading, 
 because the original instrument is designedly so ; while in 
 the other the honest intentions of the parties have been 
 
 1 McLanalian v. Eeeside, 9 Watts, 508 ; Grimstone v. Carter, 3 Paige, 
 421; Jackson v. Van Valkenburg, 8 Cow., 260; Hendrickson's Appeal, 
 24 Pa. St., 363; Corpman v. Baccastow, 84 Pa. St., 363; Cogau v. Cook, 
 23 Minn., 137. 
 
 2 Shaw V. Wilshire, 65 Me., 485. 
 
 3 Colomer v. Morgan, 13 La. Ann., 203.
 
 112 NOTICE BY KEGISTEATION OF INSTRUMENTS. 
 
 defeated by the misprision of a public officer over whose 
 acts they could have no control.^ 
 
 § 102. Must be Filed in Proper County. — Another im- 
 portant requisite to the validity of the record of an instru- 
 ment is that it must be deposited for record in the county, 
 town, parish or other place designated by law for the keep- 
 ing of such records. Upon this rule the courts of the dif- 
 ferent states are almost, if not quite, uniformly agreed, 
 however much they may disagree as to other details of their 
 registry acts. So where, under the provisions of a statute 
 requiring instruments affecting the title to land to be re- 
 corded in the town where the land was situated, though the 
 registry elsewhere might be sufficient to charge those who 
 had actually seen and read the record, it would not suffice 
 to give that constructive notice for which the registry sys- 
 tem was designed.- 
 
 § 193. Effect of Filing in Wrong County. — Also, where 
 a new county had been mapped out of another, and the 
 land was situated in the new county, but a grantee not being 
 advised of the change, which had been legally prescribed 
 while the negotiations for the purchase were pending, de- 
 posited his deed for record in the old county instead of the 
 new, its registration was held to be worthless as notice to 
 those who were uninformed of the transfer.^ 
 
 § 194. Deposit of Chattel Mortgage in Wrong Town. — 
 So, also, where mortgages of chattels were required by 
 
 1 Purchaser without notice from grantee in absolute deed intended as 
 mortgage, protected. Jaques v. Weeks, 7 Watts, 261 ; Orvis v. Newell, 
 17 Conn., 97; Bush v. Golden, 17 id., 594; HaiTison v. Cachelin, 23 Mo., 
 117; Mesick v. Sunderland, 6 Cal., 297; Hart v. Farm. & Mech. Bank, 33 
 Vt., 252; Bailey v. Myiick,-50 Me., 171. 
 
 2Pemn v. Reed, 35 Vt., 2; King v. Portis, 77 N. C, 25; Astor v. 
 Wells, 4 Wheat., 466; Lewis v. Baud, 3 McLean, 56; Stevens v. Brown, 
 3 Vt., 420; Kerns v. Swope, 2 Watts, 75; Hundley v. Mo\mt, 8 Sm. & 
 Mar., 387; Crosby v. Houston, 1 Tex., 203; St. John v. Conger, 40 111., 
 535; Stewart r. McSweeney, 14 Wis., 468. 
 
 3 Astor V. Wells, 4 Wheat., 466; Stewart v. McSweeney, 14 Wis., 468.
 
 ERRORS BY PARTY FILING INSTRUMENT. 113 
 
 statute to be recorded in the to^\Ti where the mortgagor had 
 his domicile, and a mortgage was given b}^ two joint owners 
 of certain articles of personal property, who resided in dif- 
 ferent towns, which mortgage was only recorded in the 
 town in which one of such mortgagors was domiciled, the 
 failure to record in both towns was held to render the mort- 
 gage void as against subsequent innocent purchasers.^ 
 
 § 195. Change of County Subsequent to Filing Will 
 Not Affect Registry. — But, where the deed is deposited for 
 record in the office of the recorder of the county in which 
 the land is located at the time, and by a subsequent sub- 
 division the land falls within the boundaries of another 
 county, such change will not affect the validity of the regis- 
 tration.2 
 
 1 Rich V. Roberts, 48 Me., 548. 
 
 2 Milton V. Turner, 38 Tex., 81. 
 
 8 -•'-
 
 114 >:OTICE BV KEGISTKATION OF INSTRUMENTS. 
 
 VI. Conflicting Titles Affected by Priority of Kegis- 
 
 TKATION. 
 
 § 196. Ordor of Priority Between Deeds. 
 
 197. Simultaneous Mortgages. 
 
 ] 98. As Between Original Parties, Priority Subject to Stipulation. 
 
 199. Registration Will Not Divest Accrued Rights. 
 
 200. Innocent Purchaser Not Chai'ged "With Notice of Priorities Ex- 
 
 cept by the Record. 
 
 201. Order of Filing Governs Priority. 
 
 202. Deed Recorded in Reasonable Time. 
 
 203. Subsequent Purchasers Alone Affected. 
 
 204. Record of Quitclaim. 
 
 205. The Instrument Must be in the Chain of Title, 
 
 206. Same, Further Illustrated. 
 
 207. Effect of Jlissmg Link. 
 
 208. Record Impai'ts No Notice of Relations Between Parties. 
 
 209. Recitals of IMaterial Facts Held Not to be Notice. 
 
 210. Example of Broken Chain of Title. 
 
 211. Example of Contrary Doctrine. 
 213. The Above Criticised. 
 
 213. Sheriff's Deed from Apparent Stranger. 
 
 214. Record of Conveyance Anterior to Grantor's Title. 
 
 215. Illustration of Same. 
 
 216. Contrary Doctrine Criticised. 
 
 217. Purchaser from Hen- Without Notice of Ancestor's Uni'ecorded 
 
 Deed. 
 
 218. Reasons Assigned for the Rule. 
 
 219. Reasons Assigned for Contrary Doctrine. 
 
 220. The Rule Sustained on Pi-mcii)le. 
 
 221. Review of Authorities. 
 
 222. Weight of Authority and Governing Principle. 
 
 223. Record of Convej-ances Between Strangers Does Not Affect Pur- 
 
 chasers. 
 
 224. Effect of Record of Instraments Affecting Chattels Follows 
 
 Projierty. 
 
 225. Time Given for the Registration of Deeds. 
 
 226. Must be Pm-chaser for Value. 
 
 227. Assignee for Benefit of Creditors. 
 
 228. Creditors Purchasing at Execution Sale. 
 
 229/ Purchasers at Execution Sale Notified by Registiy Prior to 
 
 Sale. 
 230. Interest of Mortgagee Not Affected by Bidding at Execution Sale.
 
 CONFLICTING TITLES. 115 
 
 § 196. Order of Priority Between Deeds. — As between 
 unregistered instruments affecting the title to real estate, 
 the order of their priority will be governed by the order of 
 their dates. As between registered instruments, however, 
 they will generally take precedence in the order hi which 
 they are recorded.^ So where there has been a sale of real 
 estate by an insolvent debtor, for the purpose of defraud- 
 ing his creditors, and the fraudulent grantee has conveyed 
 the premises to an innocent purchaser for value, as between 
 the creditors of the innocent debtor, and the innocent pur- 
 chaser from the fraudulent grantee, the law will favor the 
 most vigilant.- 
 
 §197. Simultaneous Mortgages. — So, also, where two 
 mortgages on the same property were simultaneously given, 
 with the understanding between the mortgagees and the 
 mortgagor that the two were to take effect as separate and 
 equal incumbrances, and that between them there was to be 
 no priority, and subsequently one of the mortgagees re- 
 corded and then transferred his mortgage to a lona fide 
 purchaser, who took without notice of the other, and who, 
 in his turn, transferred the instrument to still another inno- 
 cent purchaser, for value, before the other mortgage was 
 recorded, it was held that the last purchaser might take ad- 
 vantage of the prior registration of his mortgage.^ 
 
 § 198. As Between Original Parties, Priority Subject 
 to Stipulation. — In one case, where a mortgage and a judg- 
 ment against the mortgagor were entered of record on the 
 same day, it was held that, prima facie, they would be 
 treated as taking effect simultaneously ; but a verbal agree- 
 ment between the parties that the mortgage was to have 
 
 1 Lightner v. Mooney, 10 "Watts, 407. 
 
 2 Choteaa v. Jones, 11 111., 300. 
 
 3 Greene v. Deal, 4 Hun, 703. But see Greene v. Warnick, 64 N. Y., 
 220, where Greene v. Deal is reversed for the reason that the assignee of 
 a mortgage is held to be entitled to the protection of the registiy laws 
 only with respect to a subsequent transfer of the same mortgage. See, 
 also, Jones on Mortg., § 566.
 
 110 NOTICE BY REGISTKATION OF INSTRUMENTS. 
 
 precedence as notice would be binding upon them, though 
 not upon a loiia fide assignee of the judgment.^ 
 § 199. Registration Will Not Divest Accrued Rights.— 
 
 AVhere a purcliaser with notice of a prior unregistered 
 conveyance from his grantor had his deed recorded first, 
 and then conveyed to another who purchased without act- 
 ual notice of the prior conveyance, and for a valuable con- 
 sideration, it was lield that if the first conveyance was 
 recorded before his purchase, he would be charged with 
 notice, notwitlistanding the prior registration of his grant- 
 or's deed, and the deed to him would be void.- However, 
 had the first mentioned purchaser taken his conveyance in 
 good faitli, ]iis prior registry would have given him a per- 
 fect title, which would have passed to his grantee notwith- 
 standing the subsequent registration of the prior deed.* 
 
 § 200. Innocent Purchaser Xot Charged With Notice of 
 Priorities Except by the Record. — In another case, which 
 seems to conflict with that of Van Eensselaer v. Clark, the 
 land had been mortgaged, and before the mortgage was 
 recorded the mortgagor conveyed it to another, and for a 
 part of the purcliase money took notes secured by a mort-, 
 gage upon the premises from a purchaser who had actual 
 notice of the first mortgage. This conveyance and the sec- 
 ond mortgage were both recorded prior to the first. After 
 tlie first mortgage was recorded, the notes secured by the 
 second mortgage were transfeiTcd by indorsement to several 
 successive purchasers with notice of the rights of prior 
 parties, but the last indorsee had no other than constructive 
 notice from the record of the first mortgage. Prior to the 
 assignment of the notes, the second mortgagor conveyed 
 his equity of redemption to a purchaser with notice. The 
 holder of the notes was held to be charged with constructive 
 notice of the fkst mortgage, but not Avith notice of the fact 
 that the purchaser from the first mortgagor took with notice 
 
 1 Hendrickson's Appeal, 24 Penn. St., 363. 
 
 2 Van Eensselaer v. Clark, 17 Wend., 25. 
 ^ Supra, § 196.
 
 CONFLICTING TITLES. 117 
 
 Oi the prior unregistered incumbrance, so that, being an 
 innocent holder, he was allowed to foreclose the mortgage 
 b}^ which the notes were secured.^ 
 
 § 201. Order of Filing (xoveriis Priority. — Though it 
 be true that generally a prior deed will be postponed to a 
 subsequent one taken without notice when the latter is first 
 .•ecorded, yet this is only where the subsequent deed is first 
 leposited for record by the purchaser. For the recording 
 akes effect by relation back to the date of filing for record. 
 \nd where two instruments affecting the title to the same 
 and adversely to each other are filed for record, and the 
 last filed is first spread upon the records through the negU- 
 gence or corrupt design of the officer, no advantage will 
 thereby accrue to the grantee in the deed so favored.^ 
 
 § 203. Deed Recorded in Reasonable Time. — Where a 
 deed was executed before the property was attached, though 
 the attachment took place twenty-four hours prior to the 
 registry of the deed, it was held that, as the instrument was 
 recorded in a reasonable time, it would take precedence and 
 render the attachment void.'' 
 
 §203. Subsequent Purchaser Alone Affected. — The 
 only purchasers who are charged with notice by the regis- 
 tration of an instrument affecting the title to land are 
 those who purchase subsequent to the deposit of the instru- 
 ment with the registering officer.^ The frequent announce- 
 ment of the doctrine that the recording of an instrument 
 affecting the title to land was " notice to all the world " 
 has at times encouraged the belief that its operation might 
 be so extended as to affect prior as well as subsequent pur- 
 
 iDay V. Clark, 25 Vt., 397. 
 
 ■■^■VVarnock v. Wightman, 1 Brevard, 339; Jarves u. Aikens, 25 Vt., 685. 
 
 3Goodsell V. Sullivan, 40 Conn., 83. 
 
 * Infra; Hunter v. Watson, 12 Cal., 363; Howard Ins. Co. v. Halsey, 
 8 N. Y., 271 ; Hill v. McCai'ter, 27 N. J. Eq., 41 ; Van Orden v. Johnson, 
 1 McCarter, 876; Blaii- v. Ward, 10 N. J. Eq., 119; James v. Brown, 11 
 Mich., 25; Cooper v. Bigley, 13 id., 463; Doolittle v. Cook, 75 111., 854; 
 Iglehart v. Crane, 42 id., 261 ; Denster v. McCamus, 14 Wis., 307 ; Straight 
 V. Harris, id., 509; Halstead v. Bank of Kentucky, 4 J. J. Marsh., 554.
 
 lis N0TIC1-: BY EEGISTK.VTION OF INSTRUMENTS. 
 
 cluisei-s or mortgagees, and tlius control tlieu- action with 
 reference to the property in which they claimed an interest. 
 But neither the letter nor the spirit of the recording acts 
 can be supposed to have reference to prior deeds or mort- 
 gages already recorded. The effect of recording a convey- 
 ance is not intended to be retrospective. The recording of 
 a mortgage is not constructive notice to a prior mortgagee 
 whose mortgage is already recorded. And yet the courts 
 of equity have been asked, for the purpose of granting 
 peculiar I'ehef to subsequent mortgagees, to give such a 
 construction to the statute as woidd entirely invert the 
 operation of its provisions. The propriety of this construc- 
 tion has been claimed in furtherance of the equitable doc- 
 trine that mortgagees, where the same mortgage covers 
 several piarcelg of land, are required to subject the mort- 
 gaged promises to the payment of their demands in the in- 
 verse order of their alienation. " Or, in other words, when 
 a mortgagee, with notice of the equitable rights of subse- 
 quent purchasers or incumbrancers, releases one of several 
 parcels of land mortgaged for the same debt of which the 
 mortgagor still holds the equity of redemption, unincum- 
 bered by a subsequent mortgage, being primarily liable for 
 the debt, he will not be permitted to enforce his demand 
 against other parcels included in his mortgage which have 
 been conveyed or incumbered subsequent to the first mort- 
 gage, without first deducting from his debt the value of the 
 parcels released by him; for the reason that the release 
 would impose an additional bm^den upon that portion still 
 held.' But the recognition of this doctrine does not carry 
 with it the admission of the record of the subsequent in- 
 cumbrance, as a substitute for the actual notice which would 
 be necessary to affect the conscience of the prior mortgagee 
 and render his act in releasing the portion of the mort- 
 
 1 StujTesant v. Hone, 2 Barb. Ch., 151 ; Taylor v. Maris' Ex'rs, 5 Rawlo, 
 51; Cheeseborough v. Millard, 1 Johns. Ch., 409; Guion v. Knapp, 6 
 Paige, 35; Blair u. Ward, 10 N. J. Eq., 119; Wai-d's Ex'r v. Hague, 25 
 N. J. Eq., 397.
 
 CONFLICTING TITLES. " 119 
 
 gaged premises primarily liable, a fraud upo,n subsequent 
 purchasers or mortgagees. He is not required to search the 
 record for instruments recorded subsequently to his own 
 which may affect the title.^ Hence when the owner of 
 premises conveyed the same by quitclaim deed, which was 
 not recorded, and subsequently, for value received, conveyed 
 the same premises bj' quitclaim to another, it was very 
 properly held that the latter's deed had no effect whatever 
 on the title of the original grantee.^ A quitclaim deed is 
 limited in effect by its own terms to the title remaining in 
 the grantor at the time, and it is quite clear that no title 
 remains after it has been conveyed even by a quitclaim. 
 
 § 204. Record of Quitclaim. — The record of an instru- 
 ment is constructive notice of what the record shows, and 
 nothing more. So, where a quitclaim deed has been filed 
 for registration, and is duly spread upon the records, this 
 amounts to notice simply that the grantor's interest in the 
 land therein described was thereby conve3'ed to the grantee, 
 and not that the grantor had any title thereto." 
 
 § 205. The Instrument Must be in the Chain of Title.— 
 Nor wnll the putting on record a deed from one who had no 
 record title affect the conscience of a subsequent purchaser of 
 the legal title, nor charge that title with any equities w^hich 
 the deed may have raised between the bargainor and the bar- 
 gainee. In other words, the record is only constructive 
 
 ' Stuyvesant v. Houe, 1 Sandf. Ch., 419; Taylor v. Maris, 5 Rawle, 51; 
 Stuyvesant v. Hone, 3 Barb. Ch., 151; Blair v. Ward, 10 N. J. Eq., 119; 
 George v. Wood, 9 AUen, 80; Howard Ins. Co. v. Halsey, 8 N. Y., 371; 
 James v. Brown, 11 Mich., 35; Bh-nie v. Main, 39 Ai'k., 591; Flynt v. 
 Arnold, 3 Mete, 619; Mahoney r. IMiddleton, 41 Cal., 41 ; Fallas v. Pierce, 
 30 Wis., 443; Sims v. Hammond, 33 la., 368; Goelet v. McManus, 1 Hun, 
 306; Ring v. Steele, 3 Keyes, 450; Schutt v. Large, 6 Bai-b., 373; 
 (overruling) Connecticut v. Bradish, 14 Mass., 396; Trull v. Bigelow, 
 16 id., 406; GHddon v. Himt, 34 Pick., 331; Ely v. Wilcox, 30 Wis., 523. 
 
 2 Marshall v. Roberts, 18 Minn., 405; 10 Am. Rep., 301. 
 
 3 Hutchinson v. Harttman, 15 Kans,, 133; Stuyvesant v. Hone, 1 Sand. 
 Ch., 419.
 
 120 NOTICE BY REGISTKATION OF IKSTRUMENTS. 
 
 notice to tlioso claiming under the same grantor.^ Except 
 in cases where the title of such grantor is one which has 
 ripened to perfection from adverse possession.- 
 
 § 206. Same, Further Illustrated.— The principle stated 
 above may be further illustrated by a case w^here the con- 
 test was between an attaching creditor, and a purchaser 
 whose deed was recorded prior to the attachment. But the 
 rn-antor of this pmxhaser had himself purchased from the 
 debtor of the attaching creditor, and had failed to file his 
 deed for record. As a consequence of this omission the 
 record disclosed no conveyance from the debtor, and it was 
 held that the record of the deed to the last purchaser did 
 not amount to constructive notice of the um^ecorded deed 
 to his grantor." 
 
 §207. Effect of Missing Link.— So, where the deed 
 from the vendor is not recorded, a deed of trust, or mort- 
 gage given by his vendee for the pm'chase mone}^, will not 
 be notice to subsequent purchasers of the unrecorded deed. 
 There is a break in the chain of title. A necessary Unk is 
 wanting in order to connect the mortgagor with the title. 
 There is nothing to guide the purchaser beyond the record 
 
 1 Ci-ockett V. Maguiie, 10 Mo., 34; Roberts v. Bourne, 23 Me., 165; 
 Veazie v. Parker, id., 170; Pierce v. Taylor, id., 246; Leach v. Beattie, 
 33 Vt., 195; Losey v. Simpson, 11 N. J. (Eq.), 246; Long v. Dollarliide, 
 24 Cal., 218; Rogers v. Burchard, 34 Tex., 441; Baker v. Griffin, 50 
 Miss., 158. 
 
 a Baker v. Griffin, 50 Miss., 158; Embiuy v. Conner, 3 Sandf., 98; 
 Farmers' Loan, etc., Co. v. Malt by, 8 Paige, 361 ; Cook v. Travis, 20 N. Y., 
 402; St. John v. Conger, 40 lU., 535; Brock v. Headen, 13 Ala., 370; 
 Dolin V. Gardner, 15 Ala., 758; Feimo v. Sayre, 3 Ala., 478; Digman v. 
 McCoUum, 47 Mo., 372; McCoy v. Trastees, etc., 5 S. &R., 254; Tilton 
 V. Hunter, 24 Me., 29; Blake v. Graham, 6 Ohio St., 580; Leiby v. Wolf, 
 10 Ohio, 83; Hctherington v. Clark, 30 Penn. St., 393; Bates v. Norcross, 
 14 Pick., 224. 
 
 a George v. Wood, 9 Allen, 80; Felton v. Pitman, 14 Ga., 530; Chicago 
 V. Witt, 75 111., 211; Page v. Waring, 76 N. Y., 463; Calder v. Chapman, 
 52 Pa. St., 359; Keller v. Nutz, 5 S. & R., 246; Blake v. Graham, 6 Ohio 
 St., 580; Harris v. Arnold, 1 R. I., 125; Roberts v. Bourne, 23 Me., 165.
 
 CONFLICTINa TITLES. 121 
 
 title of the vendor, and the discovery of the mortgage for 
 the purchase money would be purely accidental.^ 
 
 § 208. Record Imparts No Notice of Relations Between 
 Parties. — The constructive notice by registration does not 
 necessarily imply knowledge, on the part of subsequent pur- 
 chasers, of the relations subsisting between the parties to 
 the recorded instrument. So, where a mortgage was given 
 by A. and B. on .several pieces of land owned by them in 
 severalty, to secure their joint note, which was executed by 
 B. as surety for A., and subsequently A. gave a second mort- 
 gage on his land, and B., by reason of his being sm*ety for 
 A., claimed that he was entitled to pay off the first mortgage, 
 and be subrogated to all the rights of the first mortgagee for 
 his indemnity, thereby taking precedence of the second 
 mortgagee, it was held that, as the record imparted no 
 constructive notice of his suretyship, and actual notice 
 thereof was not proven, innocent purchasers or incum- 
 brancers could not be affected.- 
 
 § 209. Recitals of Material Facts Held Not to Ibe No- 
 tice. — It has even been held that the record is not always 
 constructive notice of all it contains material to the title. 
 As where there was a recital in the body of a deed, which 
 
 1 Veazie v. Parker, 23 Me., 170; Pierce v. Tayor, id., 246; Felton ?;. 
 Pitman, 14 Ga. , 530 ; De Yampert v. Brown, 28 Ark. , 166 ; Bazeniore v. 
 Davis, 55 Ga., 504; Whittington v. Wright, 9 Ga., 23; Crockett v. Ma- 
 guii-e, 10 Mo., 34; Rogers v. Burchard, 34 Tex., 441 ; Losey v. Simpson, 11 
 N. J. Eq., 246; Bates v. Norcross, 14 Pick., 224; Quirk >!;. Thomas, 6 
 Mich., 76. 
 
 2 Bancrofts. Cousen, 13 Allen, 50; Harrison v. Cachelin, 23 Mo., 117; 
 George v. Kent, 7 Allen, 16; Morris v. Wadsworth, 17 Wend., 103; 
 Dimon v. Dunn, 15 N. Y., 498; Humphreys v. Ne-RTnan, 51 Me., 40; 
 Thomson v. Wilcox, 7 Lans., 376; HaU v. McDuff, 24 Me., 311 ; Bai-bour 
 V. Nichols, 3 Pt. I,, 187; BoUes v. Chauncey, 8 Conn., 389; Peters v. 
 Goodrich, 3 Conn., 146; Tripe v. Marcy, 39 N. H., 439; Souder i7. Mor- 
 row, 33 Pa. St., 83; Leach v. Beattie, 33 Vt., 195; Clabaugh v. Byerly, 
 7 Gill, 354; Kyle V. Thompson, 11 Ohio St., 610; Grandin v. Anderson, 
 15 Ohio St., 286; Doyle v. Stevens, 4 Mich., 87; Buchanan v. Interna- 
 tional Bank, 78 111., 500 ; McCabe v. Grey, 20 Cal., 509 ; Demiis v. Burritt, 
 6 Cal., 670; Montefiore v. Browne, 7 H. L. Cas., 241; Orvis v. NeweU, 17 
 Conn., 97.
 
 122 KOTICE BY EEGISTEATION OF INSTEUMENTS. 
 
 disclosed the fact that a ])rior mortgage had been given on 
 the same premises, and such mortgage was unrecorded, the 
 recital was not treated as constructive notice to subsequent 
 purchasers, of the existence of the mortgage.^ 
 
 g '210. Example of Brolven Chain of Title. — In a recent 
 case, where there was an outstanding unrecorded deed of the 
 premises and a deed duly recorded from the grantee to an- 
 other person, and also a deed from this other person to still 
 another, which last was likewise recorded, it was sought to 
 charge an innocent purchaser, by the record of these two 
 deeds, with constructive notice of the prior unrecorded deed. 
 From the report of the case it seems that before completing 
 the transaction, the purchaser sought to be charged ob- 
 tained an abstract of the title, in which both these convey- 
 ances, the one from the grantee in the unrecorded deed and 
 that from his grantee, were mentioned. It further appears 
 that in neither of these was there any recital of the unre- 
 corded instrument which formed a necessary link in the chain 
 of title. It was held that the conveyance appearing of 
 record did not operate as constructive notice of the um^e- 
 corded instrument under which they both held; but in 
 reaching this conclusion the court intimated that the case 
 might have been differently decided had there been a re- 
 cital of the unrecorded instrument in those appearing of 
 record.- It is impossible to gather from the report of the 
 case cited whether or not the fact that the purchaser had 
 been furnished with an abstract of the title was insisted 
 upon as actual notice. What seems to have been in dis- 
 pute, however, was whetlier the record of the deeds from 
 parties who, for all that appeared of record, were strangers 
 to the title, was constructive notice of the unrecorded deed. 
 In cases where this issue alone has been raised, it has been 
 almost uniformly decided that even the recitals in detached 
 instruments, however explicitly they may refer to prior un- 
 recorded instruments affecting the title, wiU not charge 
 
 » Crofut V. Wood, 3 Hun, 571. Seo S. C, 65 N. Y., 437. 
 
 2 Chicago 1-. Witt, 75 lU., 211. See, also, DooUttle v. Cook, id., 354.
 
 CONFLICTING TITLES. 123 
 
 subsequent purchasers with constructive notice of the facts 
 therein recited.^ 
 
 §211. Example of Contrary Doctrine.— The views ex- 
 pressed by the court in a still more recent case seem to be 
 directly at variance with the weight of authority upon this 
 question.- The controversy lay between the plaintiff claim- 
 ing by adverse possession, under color of title, and defend- 
 ant, a purchaser at an execution sale. The plaintiff held a 
 deed, duly aclmowledged and recorded, from a purchaser 
 at a prior execution sale. In attempting to execute the 
 deed to the first purchaser the sheriff omitted to affix the 
 seal or scroll, which was imperatively required to give 
 validity to the deed. This omission the court declared 
 rendered the deed a nullity.* And being an attempted ex- 
 ecution of a statutory power in derogation of a common 
 law right, equity would not aid its imperfect execution.* 
 It was not the conveyance of an equitable interest, as it 
 would have been had the deed been a voluntary one, and 
 the seal omitted by mistake.^ This void deed, however, 
 was copied upon the records before the purchase bj" the 
 defendant, as was also the deed from plaintiff's grantor. 
 It is not clear from the report of the case whether the de- 
 fendant, prior to his purchase, had ever seen the record 
 copy of the sheriff's deed ; but the court held that, as the 
 deed to plaintiff recited the former judgment, execution 
 and sale, described the land correctly, and stated that the 
 first sheriff's deed was executed, it was sufficient to put de- 
 fendant upon inquiry, which would have resulted in a 
 knowledge of plaintiff's claim, and was consequently con- 
 structive notice to him. 
 
 iLosey v. Simpson, 11 N. J. Eq., 346; Keller v. Nutz, 5 S. & E.', 24G; 
 Maiil V. Rider, 59 Penn. St., 167; Long v. DoUarhide, 24 Cal., 318; Fenno 
 V. Sayre, 3 Ala., 458; Tilton v. Hunter, 34 Me., 39; Ely v. Wilcox, 30 
 Wis., 530. 
 
 2 Hamilton v. Boggess, 63 Mo., 233. 
 
 3 Allen t7. Moss, 37 Mo., 354. 
 
 * Moreau v. Detcliemendy , 18 Mo. , 533 ; Moreau v. BraiJiam, 37 Mo. , 851 . 
 
 SMcClurg V. Phillips, 57 Mo., 314.
 
 124: NOTICE BY EEGISTEATION OF INSTEUMENTS. 
 
 § 212. Tlie Above Criticised. — The views expressed by 
 the court in this case seem irreconcilable with those previ- 
 ously expressed by the siune and other courts, upon any 
 other hypothesis than that defendant had actual notice of 
 the record. The case might have been decided by leaving 
 entirely out of consideration the cpiestion of constructive 
 notice by registration, and resting upon plaintiff's adverse 
 possession, which seems, from the instruction reported, to 
 liave been the view taken by the court beloAV. If it is true, 
 as we have seen, that the record is only constructive notice 
 to those claiming to purchase under the same grantor,^ the 
 record of the plaintiff's deed could not have been construct- 
 ive notice to one pm^chasing at the last execution sale, be- 
 cause it was from one who, so far as the record disclosed, 
 was a stranger to the title. Neither its recitals nor the un- 
 authorized record of the void sheriff's deed, nor both these 
 together, could connect the plaintiff's deed with the title of 
 the judgment debtor under whom the defendant claimed. 
 The deed from the purchaser at the first execution sale was 
 properly recorded, it is true ; but bet^v^een it and the title 
 of the judgment debtor there was a blank. In order to 
 make the record of its recitals constructive notice, the same 
 operation must be given to the record of the void deed as 
 to a valid one, or else there is nothing to lead the searcher 
 of the records to a knowledge of the fact by which he is to 
 be bound. 
 
 § 213. Slieriif's Deed from Apparent Stranger. — The 
 record of a deed from a sheriff, pursuant to an execution 
 sale, wiU not be notice to a subsequent purchaser, when the 
 title acquired by such subsequent purchase is derived from 
 a different source, and there is nothing appearing of record 
 connecting the execution debtor Avith tlie title. As, where 
 certain land was paid for with the money of a judgment 
 debtor, and at his request conveyed to another, in trust for 
 his wife, for the purpose of defrauding his creditors, and 
 
 1 Supra, § 205 et seq. ; infra, § 213.
 
 CONFLICTING TITLES. 125 
 
 tlie land was sold on execution against the husband, and 
 subsequently purchased from the trustee and the wife by 
 one having no actual notice of the equity of the husband 
 or of the sheriif's sale, the record of the deed from the 
 sheriff would not charge such subsequent purchaser with 
 constructive notice of anything by which his title might be 
 affected.^ 
 
 § 214. Record of Conveyance Anterior to Grantor's 
 Title. — The purchaser is not charged with notice from the 
 record of conveyances from his grantor prior to such 
 grantor's acquisition of title.^ In such case the subsequent 
 purchaser would not be estopped by the record of a mort- 
 gage from his grantor prior to the date of his grantor's 
 deed. To hold otherwise would be to impose upon the 
 purchaser the duty of examining the records indefinitely.^ 
 
 §215. Illnstration of Same. — So, in a case where a, 
 tract of land was conveyed by deed to A., with the excep- 
 tion of a certain lot included in the general boundaries, and 
 the deed was duly recorded, after which A. mortgaged the 
 entire tract to B,, this mortgage was also placed upon 
 record. Subsequently A. purchased the lot. C. held a 
 judgment against A. The entire tract was sold to satisfy 
 the mortgage claim, and the lot was sold to satisfy the 
 judgment. In a contest between the purchaser at the 
 mortgage said and the purchaser at the execution sale, it 
 was held that the latter by his purchase acquired the better 
 title to the lot. He Avas only constructively notified by the 
 
 1 Crockett v. Maguii-e, 10 Mo., 34. 
 
 2 Loan & Trust Co. v. Maltby, 8 Paige, 361 ; Faircloth v. Jordon, 18 
 Ga., 850. 
 
 SHetzel v. Barber, 69 N. Y., 1; Buckingham v. Hanna, 2 Oliio St., 
 551 ; Doswell v. Buchanan, 3 Leigh, 365. But see Pike v. Galvin, 29 Me., 
 183; Wark v. WiUard, 13 N. H., 389; KimbaU v. Blaisdell, 5 N. H., 533; 
 Jarves V. Aikens, 25 Vt., 635; White v. Patten, 24 Pick., 324; Somes r. 
 Skinner, 3 Pick., 52; Doyle v. Peerless, etc., Co., 44 Barb., 239; Digmau 
 V. McCollum, 47 Mo., 372; Duchess of Kingston's Case, 3 Smith's Lead. 
 Cases (7th Am. ed.), 705.
 
 12G NOTICE BY REGISTRATION OF INSTRUMENTS. 
 
 record of incumbrances placed n]ion the lot by the judg- 
 ment debtor subsequent to his acquisition of title.^ 
 
 § 2 1 6. Contrary Doctrine Criticised. — The doctrine of 
 estoppel l)y deed was applied to a case similar to the fore- 
 troin"-, and it was held by a divided commission that the 
 record of a mortgage, prior to the purchase of the premises 
 bv the mortgagor, was- binding upon privies in blood, priv- 
 ies in estate, and privies in law, after the title was acquired 
 by tlie mortgagor.- But upon both principle and autliority, 
 it seems more consonant with the spirit of the recording 
 acts to absolve purchasers from the duty of examining the 
 records for conveyances from their grantors, prior to thc^ 
 time when they had a title to conve3^ 
 
 § 217. Purcliaser from Heir Without Notice of An- 
 cestor's Unrecorded Deed. — "Where the grantor of real 
 estate dies, and the deed is not recorded, it lias been held 
 that a subsequent purchaser from the heir for a valuable 
 consideration, and without notice of the unrecorded deed, 
 would be protected to the same extent as though he had 
 purchased from the ancestor under similar circumstances.^ 
 
 § 218. Reasons Assigned for the Eule. — The following 
 are the principal reasons assigned for thus holding: The 
 heir stands in the shoes of his ancestor. The title to the 
 real estate descends to him immediate!}" on the death of 
 the ancestor. When the purchaser ascertains who is the 
 sole heir, he would ordinarily be walling to treat with him 
 much as he would have treated with the ancestor in his 
 
 ' Cakler v. Chapman, 53 Penn. St., 359. 
 
 2Tefft V. Munson, 57 N. Y., 97, citing upon the general doctrine of 
 estoppel by deed against mortgagor, Wark v. Willard, 13 N. H., 389; 
 Kimball v. BlaisdeU, 5 id., 533; Somes v. Skinner, 3 Pick., 52; Baulc of 
 Utica V. Mersereaii, 3 Barb. Ch., 538; Jackson v. Bull, 1 Johns. Cas., 81; 
 White V. Patten, 24 Pick., 324; Pike v. Galvin, 29 Me., 183. 
 
 SMcCulloch V. Eudaly, 3 Yerg., 346; Powers v. McFerran, 2 Serg. & 
 Rawle, 44; Kenedy u. Northup, 15 111., 148; Kupert v. Mark, id., 540; 
 Youngblood v. Vastine, 46 Mo., 239; Chad wick v. Tui-ner, 1 Ch. Ap. 
 Cos., 310.
 
 CONFLICTING TITLES. 127 
 
 life-time. It. is true that the heir coiild not hold the prop- 
 ert}^ as against his ancestor's grantee whose deed was un- 
 registered. In this respect he is in neither a better nor a 
 worse condition than his ancestor while living. If the real 
 estate of which one dies apparently seized is to remain 
 forever subject to unrecorded instruments affecting the 
 title, the benefit to be derived from the registry laws is 
 utterly lost as soon as the title is cast by descent. If one 
 hold a deed to land which is unregistered at the death of 
 his grantor, unless subsequent purchasers from the heir are 
 protected, the same as subsequent purchasers from the 
 ancestor, it need never be registered, in order to protect the 
 grantee's title. It is believed that it was never intended by 
 any of the recording acts, that the death of a grantor 
 should be allowed to create a break in the chain of title, as 
 it appeared of record, and protect the grantee whose deed 
 was unregistered against subsequent purchasers without no- 
 tice. The onl}^ question is, whether a contrary intention is 
 sufficiently expressed in the statute. 
 
 § 219. Reason Assigned for Contrary Doctrine. — It 
 has been held that the grantee of the heir will not be pro- 
 tected in his title against the claim of the ancestor's grantee 
 or mortgagee whose deed or mortgage is unrecorded, be- 
 cause the language of the statute does not warrant such an 
 interpretation.' Though it is admitted that a purchaser at 
 administrator's sale, who has his deed first recorded, will be 
 protected against claims under prior imregistered instru- 
 ments, it is said the heir has nothing to convey.^ 
 
 § 220. The Rnle Snstained on Principle. — The lan- 
 guage of the statute usually is in substance that no instru- 
 ment affecting the title to real estate shall be effectual as 
 against any persons except grantors, and their heirs, unless 
 
 1 Webb V. Wilcher, 33 Ga., 565 ; HiU v. Meeker, 24 Conn., 211 ; Ralls v. 
 Graham, 4 Mon., 120; Hancock v. Beverly, 6 B. Mon., 531; Harlan v. 
 Seaton, 18 id., 312. 
 
 -Tucker v. Harris, 13 Ga., 1 ; Caldwell v. Head, 17 Mo., 561 ; McCam- 
 ant V. Patterson, 39 id., 100; Gibson v. Choteau, id., 536.
 
 128 NOTICE BY REGISTRATION OF INSTRIIMENTS. 
 
 recorded in the maimer prescribed. It is argued in tliose 
 cases where protection is denied to innocent purchasers 
 from heirs, that the title passes by the execution and deliv- 
 ery of the deed and not by its registration ; therefore, the 
 ancestor having divested himself of all title to the premises 
 during his life-time, at his death nothing descended to the 
 heir which he could convey. By the same rule no title 
 remained in the ancestor which he could convey ; yet if ho 
 attempted it, the subsequent innocent purchaser, by the 
 exercise of proper diligence in filing his deed for record, 
 could secure the title. 
 
 § 221. Review of Authorities. — In the case of Harlan r. 
 Seaton,' the court does not attempt a vigorous defense, upon 
 principle, of the position assumed, but virtually yields to 
 the doctrine of stare decisis. Early decisions of the same 
 question by the same court are followed, for the declared 
 reason that they have established a ride of property in that 
 state, and it is deemed better that the law should remain 
 permanent, even though originally settled upon doubtful 
 principles. 
 
 § 222. Weightof Authority and Governing Principle.— 
 As between these conflicting views, the weight of authority 
 seems to be in favor of extending the same protection to 
 lona fide purchasers from the heirs of a deceased grantor, 
 where the prior deed is unregistered, as is afforded to subse- 
 quent purchasers from the grantor himself. This view 
 seems also to be supported by the better reason. Following 
 the record as a guide, the title seems to be in the heir at the 
 moment of the ancestor's death. It is true that, as against 
 his ancestor's grantee, he has no title at all ; but the same 
 could be said with equal truth of the grantor himself where 
 the subsequent deed is from him. It is probable, however, 
 that the courts of each state where the question has been 
 once decided will generally adhere to its own construction 
 of the statute, as best calculated to insure permanency in 
 the laws governing property — though the case of Toung- 
 1 Swpra, §219.
 
 CONFLICTING TITLES. 129 
 
 blood V. Yastine/ being the latest decision of the court 
 where it was decided, flatly overrules the earlier cases 
 cited 2 in which a contrary view is expressed by the same 
 court. 
 
 § 223. Record of Conveyances Between Strangers Does 
 Not Affect Purchasers. — The record of a conveyance from 
 one stranger to the title, to another, does not affect a subse- 
 quent purchaser who claims under a different grantor.' A 
 fair illustration of this doctrine is found in the case of Blake 
 V. Graham.* In that case there had been an unauthorized 
 deed executed by an executor in Pennsylvania, of lands in 
 Ohio, which deed was recorded in Ohio ; but it was held to 
 be of no avail as notice to purchasers from the heirs of the 
 testator.^ 
 
 § 224. Effect of Record of Instruments Affecting Chat- 
 tels Follows Property. — Ante-nuptial contracts of such a 
 nature as to be binding upon the parties, affecting the title 
 to chattels, when properly acknowledged and recorded in 
 the state where the property is situated at the time, have 
 been held to follow the chattels when removed to another 
 state, and operate as constructive notice in the new locality.^ 
 So where personal property is mortgaged in one state ac- 
 cording to the laws thereof, and duly recorded, the rights 
 of the mortgagee are preserved after the removal of the 
 property to another state.^ 
 
 § 225. Time Given for the Registration of Deeds. — 
 Where the statute prescribes a time within which the deed 
 to be operative as notice to subsequent pm^chasers shall be 
 
 146 Mo., 239. 
 
 2 Caldwell v. Head, and McCamant v. Patterson, supra, § 219. 
 
 3 McCoy V. Trustees, etc., 5 S. & R., 254; Tilton v. Hunter, 24 Me., 29; 
 Leiby v. Wolf, 10 Ohio, 83; Hetherington v. Clai'k, 30 Penn. St., 893; 
 Bates V. Norcross, 14 Pick. , 224. 
 
 *6 Ohio St., 580. 
 
 5 Leiby v. Wolf, 10 Ohio, 83; Hetherington v. Clark, 30 Penn. St., 893; 
 Bates V. Norcross, 14 Pick., 224. 
 
 6DeLane v. Moore, 14 How., 253; Hicks v. Skinner 71 N. C, 639. 
 
 'Hall V. PiUow, 31 Ark., 33; Feurt v. RoweU, 63 Mo., 634. 
 9
 
 130 NOTICE UY KEGISTKATION OF INSTRUMENTS. 
 
 jQled for record, it is given a retrospective effect from the 
 date of filing (if within the prescribed time) back to the 
 date of the deed, and is held to take precedence of instru- 
 ments of subsequent date, even though the latter be li^'st 
 Hied for record. The same advantage, however, is not 
 always accorded to mortgages and deeds of trust, as these 
 are held to be constructive notice only from the time they 
 are lodged with the proper officer for registration.^ "Where 
 a time is fixed for recording instruments, and they are 
 not recorded until after the expiration of the statutory 
 period, they are generally held to be notice to purchasers 
 and incumbrancers subsequent to their being filed for rec- 
 ord.2 
 
 § 226. Must be Purchaser for Yalue. — It is not every 
 one who may be technically styled a subsequent purchaser 
 that Avill be allowed to take advantage of the fact that a 
 prior deed to the same premises is unregistered. It is not 
 suiiicient that he is a purchaser without notice. He must 
 also be a purchaser who has parted with value.^ But the 
 record of a voluntary conveyance will be as effective for 
 
 1 Claiborne v. HoLnes, 51 Miss., 146; StanseU v. Eoberts, 13 Ohio, 148; 
 Mayhaan v. Coombs, 14 id., 428: Coster v. Bank of Georgia, 24 Ala., 37; 
 De Vandal v. Malone, 25 Ala., 272; Gray's Adm'r v. Cmise, 36 Ala., 559. 
 
 2Hardaway v. Semmes, 24 Ga., 305; Doe v. Bank of Cleveland, 3 
 McLean, 140; Williams v. Adams, 43 Ga., 407; Allen f. Holding, 29 Ga., 
 485; Rushim v. Shields, 11 Ga., 636; Bm-khalter v. Ector, 25 Ga., 55; 
 WiUiams u. Logan, 32 Ga., 165; Lee v. Cato, 27 Ga., 637; Wyatt v. Elam, 
 19 Ga., 335; Smith v. Smith, 13 Ohio St., 532; Lessee of AUen v. Pai'ish, 
 3 Oliio, 107 ; Lessee of Cunningham v. Buckingham, 1 Oliio, 264 ; Lessee 
 of Irvin v. Smith, 17 Ohio, 226 ; Northnip's Lessee v. Brehmer, 8 Ohio, 
 392; Spader v. Lawler, 17 Olaio, 371; Bloom v. Noggle, 4 Oliio St., 45; 
 Price V. Methodist Episcopal Ch., 4 Ohio, 515; Bercaw v. CockeriU, 20 
 Ohio St., 163; Owens r. Miller, 29 Md., 144; Knell v. Building Ass'n, 34 
 Md., 67; Leppoc v. Nat. Union Banlc, 32 Md., 136; Lester v. Hardesty, 29 
 Md., 50; Adm'rs of Carson v. Phelps, 40 Md., 97; Estate of Leiman, 32 
 Md., 225. 
 
 3 Aubuchon v. Bender, 44 Mo., 560; Setter v. Alvey, 15 Kans., 157; 
 Martmr. Sale, 1 BaUey's Eq., 1; Hoffman v. Strohecker, 7 Watts, 90; 
 Snider u. Snider, 8 Phila., 160; Union Canal Co. v. Young, 1 Whart., 
 432.
 
 CONFLICTING TITLES. 131 
 
 the purpose of giving notice to subsequent parties, as 
 tTiougli it were for a valuable consideration.^ 
 
 § 227. Assignee for Benefit of Creditor. — In thus re- 
 stricting the operation of the statute, it has been held that 
 an assignee for the benefit of creditors is not a purchaser 
 for value, and therefore such an assignment would be post- 
 poned to a prior unrecorded mortgage.^ 
 
 § 228. Creditor Purchasing at Execution Sale. — And 
 so where, at an execution sale, the creditor was the pur- 
 chaser, and the amount for which the purchase was made 
 was credited on his judgment, it was held that he was not 
 a purchaser for a valuable consideration, and was not en- 
 titled to the protection of the registry laws.* 
 ' § 229. Purchasers at Execution Sale Notified by 
 Begistry Prior to Sale. — But whoever is the purchaser at 
 execution sale, whether he be a creditor or not, is charged 
 with constructive notice of all instruments affectino: the 
 title, executed and delivered by the debtor prior to the judg- 
 ment, and subsequently recorded, provided such instruments 
 are recorded prior to the sale.* 
 
 § 230. Interest of Mortgagee Not Affected by Bidding 
 at Execution Sale.— So it has been held that where a 
 mortgagee whose mortgage had been registered prior to 
 the execution sale, but subsequently to the docketing of the 
 judgment, attended and. bid at the sale, his interest was not 
 affected by such silence or apparent acquiescence, though 
 had the mortgage remained unrecorded until after the sale, 
 the purchaser, if without notice, would have taken the 
 property freed from the incumbrance.^ 
 
 iBeal V. Warren, 2 Gray, 447. See Mayor v. Williams, 6 Md., 235; 
 Cooke's Lessee v. Kell, 13 Md., 469 ; Williams v. Bank, 11 Md., 198 ; supra, 
 % 118. 
 
 2 Mellon's Appeal, 32 Penn. St., 121 ; Britton's Appeal, 45 Penn. St., 172. 
 
 3 Ayers v. Duprey, 27 Tex., 593. In general a pm-chaser at an execu- 
 tion sale is affected with notice of all the infirmities in the title of the 
 judgment debtor. Richardson v. Wicker, 74 N. C, 278. 
 
 * Thomas v. Kennedy, 24 la., 397; Jackson v. Post, 15 Wend., 588. 
 
 5 Jackson v. Dubois, 4 Johns,, 216; Knouff v. Thompson, 10 Penn. 
 St., 57.
 
 132 NOTICE BY KEGISTKATION OF INSTRUMENTS. 
 
 YII. Other Notice Considered m Connection with Eech 
 
 ISTRATION. 
 
 § 231. Actual Notice of Unregistered Deed. 
 
 232. Purchaser Protected by Good Faith of Execution Creditor. 
 
 233. Equitable Interference in Favor of Holder of Unrecorded Title. 
 
 234. Creditor's Interest Held to Attach from Date of Levy, 
 
 235. Unregistered Deeds Good Against Creditoi-s With Notice. 
 
 236. Notice of Deed Must be Subsequent to Its Execution. 
 
 237. Notice of Assignment Governed by Same Principle. 
 
 238. Judgments Given Precedence Over Prior Deeds. 
 
 239. Deed Takes Priority if Registered Before Execution Sale. 
 
 240. Judgments Do Not Become Liens After Conveyance and Before 
 
 Registry. 
 
 241. Title Not Affected by Recording Deed After Title Vests in Inno- 
 
 cent Purchaser. 
 
 242. Reasons for the Above Doctrine. 
 
 243. Effect of Re-i3urchase by Fi-audulent Grantor, 
 
 244. Conflicting Decisions as to Sufficient Notice of Unregistered 
 
 Deed. 
 
 245. Express Notice Reqvured. 
 
 246. Actual or Constructive. 
 
 247. Different Kinds of Notice Referred to. 
 
 248. Cases Holding Notice Ineffectual Against the Record. 
 
 249. Cases Holding Implied Notice Sufficient. 
 
 250. Illustration of Implied Notice. 
 
 251. Any Kind of Notice Will Affect Purchasers. 
 
 252. Putting Upon Inquiry Held Insufficient. 
 
 253. Kjiowledge of Mortgage Withheld from Record. 
 
 254. Record of Insti'ument Affectmg Equitable Interest. 
 
 255. Effect of Withdi-awing Deed from Files Before Recording, 
 
 256. Priority Secured by Registration. 
 
 257. Fraud Practiced by Agent. 
 
 258. Vague Information Disregarded. 
 
 259. Subsequent Purchase Not Invalidated by Notice of Prior Deed. 
 
 260. Same — Doubtful Authority. 
 
 261. Record Chain of Title Incomplete. 
 
 262. Assignee of a Mortgage Regarded as Purchaser. 
 
 263. Time of Notice. 
 
 264. Same, to Attaching Creditor. 
 
 265. When Notice Too Late. 
 
 266. After Purchase at Execution Sale. 
 
 267. Before Legal Title is Conveyed. 
 
 268. Time of Filing for Record Fixed by Statute.
 
 OTHEK NOTICE CONSIDEKED. 133 
 
 § 269. Recording After Death of Grantor. 
 
 270. Examining Eecords Insufficient Inquiry. 
 
 271. Unrecorded Chattel Mortgage. 
 
 272. Description of Debt in Mortgage. 
 
 § 231. Actual Notice of Unregistered Deed. — Actual 
 notice of an unregistered deed will be as effectual as the 
 formal registration of the instrument.^ But this actual no- 
 tice must be brought home to the party to be affected by it. 
 The fact that one of two partners, judgment creditors, had 
 seen a deed from the debtor, who had been allowed to re- 
 main in possession of the premises for two years, and the 
 deed had remained unrecorded for that time, was not 
 deemed such notice, or evidence of notice, as would entitle 
 the grantee in the prior unregistered deed to reliel^ 
 
 §231a. The Extent to Which Actual Notice Affects 
 Subsequent Purchasers. — Where one purchases land pre- 
 viously conveyed by his grantor, he cannot occupy the 
 position of a purchaser in good faith, unless he is without 
 notice of the prior conveyance. If the prior deed is regis- 
 tered, he has constructive notice, by which he and all 
 purchasers under him are bound. But even where it is 
 unregistered, and the subsequent vendee pays full value for 
 the property, if he is otherwise notified of the prior convey- 
 ance, he takes no title, except where, under the peculiar 
 provisions of the controlling statute, no kind of notice, in 
 the absence of registration, will be effectual.^ Although he 
 
 'Tuttle V. Jackson, 6 Wend., 213; Greaves v. Tofield, L. R., 14 Ch. 
 Div., 563; Ford v. White, 16 Beav., 120; Benliam v. Keane, 3 De G., F. & 
 J., 318; Chadwick v. Turner, L. R., 1 Ch., 310; Credland v. Potter, L. 
 R., 10 Ch., 8; Doe v, AUsop, 5 B. & Add., 143; Walhs v. Rhea, 10 Ala., 
 451; Jordan v. Mead, 12 Ala., 247; Wyatt v. Stewart, 34 Ala., 716; Dear- 
 ing V. Watkins, 10 Ala., 20; Boyd v. Beck, 29 Ala., 703; Chew v. Barnet, 
 11 S. & R., 389 ; Green v. Drinker, 7 Watts & S., 440 ; Hams v. Bell, 10 S. 
 & R. , 39. See ante, ch. I, part I ; Bowman v. Lee, 48 Mo., 335 ; The " John 
 T. Moore," 4 Am. Law T., 406. 
 
 2Farnsworth v. Childs, 4 Mass., 637. See Ingram v. PhiUipps, 3 Strob- 
 hart, 565. 
 
 SMahoney v. Middleton, 41 Cal., 41; Davis v. Earl of Strathmore, 16 
 Ves., 419; Le Neve v. Neve, Wliite & Tud. Lead. Cas. in Eq. (4th Am. 
 ed.), 109; Britten's Appeal, 45 Pa. St., 172. But see, as to the effect of a
 
 13i NOTICE BY KEGISTKATION OF INSTRUMENTS. 
 
 pays value for the property, and is beforehand with the 
 prior grantee in getting his instrument recorded, he will 
 hold the title subject to the superior rights of the prior pur- 
 chaser. There is but one advantage he can gain by record- 
 ing his conversance in advance of the others, and that is to 
 be able to pass a good title to one pui'chasing without notice 
 of the former convej'ance. And even such innocent pur- 
 chaser, in order to obtain the beneht of his position as such, 
 must file his conveyance for record in advance of the filing 
 of that of the first grantee.^ 
 
 § 232. Purchasers Protected by Good Faith of Execu- 
 tion Creditor. — However, in the case of Low v. Blinco,- it 
 is laid down as a rule, deduced from the authorities cited 
 below, that a pm^chaser at an execution sale, with notice of 
 an outstanding unregistered title, is protected, provided the 
 creditor acts in good faith without notice. The creditor 
 having the right to direct the sale, the purchaser takes all 
 the title the sheriff can be required to sell.^ 
 
 § 233. Equitable Interference in Favor of Holder of 
 Unrecorded Title. — Com-ts of equity do not always regard 
 purchasers at execution sales as purchasers for value. And 
 have refused to allow a judgment creditor to subject land 
 of his debtor to his judgment in equity after such land had 
 been sold to another, though not yet conveyed, even where 
 the creditor had no notice of such sale, either actual or con- 
 structive.* 
 
 peculiar statute, Wliite v. Denman, 1 Ohio St., 110; Bloom v. Noggle, 
 4 Ohio St., 45; HoUiday v. Fi-anMin Bank, 16 Ohio, 533; StauseU v. Rob- 
 erts, 13 Oliio, 148; Jackson v. Luce, 14 Ohio, 514; Mayhani ?;. Coombs, 
 14 Oliio, 428; Robinson v. Willoughby, 70 N. C, 858; Leggett v. Bullock, 
 Busb. L.. 283; Baker v. Woodward, 5 West Coast Rep., 136. 
 
 1 Mahoney v. Middleton, 41 Cal., 41 ; Fallass v. Pierce, 30 Wis., 443 ; Ring 
 V. Steele, 3 Keyes, 450 ; Goelet v. McManus, 1 Hun, 306 ; Sims v. Hammond, 
 33 Iowa, 368. But see Ghdden v. Hunt, 24 Pick., 221; Connecticut v. 
 Bradish, 14 Mass., 296. 
 
 210 Bush (Ky.), 331. 
 
 3 Morton v. Robards, 4 Dana (Ky.), 258; Halley v. Oldham, 5 B. Monr., 
 233; Righter v. Fon-ester, 1 Bush, 278. 
 
 *KeUy V. Mills, 41 Miss., 267.
 
 OTHER NOTICE CONSIDEEED. 135 
 
 § 234r. Creditor's Interest Held to Attach from Date 
 of Levy. — Under a statute making the record of written in- 
 struments notice to subsequent purchasers and creditors 
 from the date of filing for record, it was held that where a 
 levy, subsequent to the date of the deed, but before the 
 same was filed for record, a purchaser at the sale under such 
 levy would be protected in his purchase, against the grantee, 
 whose deed was not recorded until after the levy, provided 
 the creditor had no notice of the deed at the time he di- 
 rected the levy.^ 
 
 § 235. Unregistered Deeds Good Against Creditors 
 With Notice. — Unregistered deeds are good as against cred- 
 itors with sufficient notice to put them upon inquiry. And 
 possession by the grantee has been held sufficient notice to 
 creditors, as well as subsequent purchasers and mortgagees." 
 
 § 236. Notice of Deed Must be Suhseqneut to Its Exe- 
 cution. — The notice to creditors should be subsequent to 
 the execution of the instrument. So, where one of two 
 creditors of an insolvent debtor, anticipating the execution 
 of a deed to the other creditors by way of a preference, and 
 in fact having positive knowledge that such deed was in 
 com'se of preparation, sued out a writ of attachment before 
 the deed was dehvered, and had the same le\'ied upon the 
 debtor's land before the deed had been deposited for record, 
 but not before the completion of the conveyance, it was 
 held that the title derived under the execution of the at- 
 tachment would prevail over that under the deed.* 
 
 § 237. Notice of Assignment Governed by Same Prin- 
 ciple. — So, also, in a contest between two creditors of a 
 mortgagee, where one of them obtained an assignment 
 of the security while an assigmnent to the other was being 
 drawn, and made haste to have it first recorded, his dihgence 
 in taking advantage of the compliant disposition of the 
 debtor, and the deliberate movements of the other creditor, 
 
 iReichertv. McClure, 23 lU., 516. 
 
 2 Dixon V. Doe, 1 Sm. & Marsh., 70; Priest v. Eice, 1 Pick., 164, 
 
 3 Gushing v. Hiu-d, 4 Pick., 253.
 
 136 NOTICE BY REGISTRATION OF INSTUUMENTS. 
 
 gave him the better title to the mortgage. He was not in- 
 formed of the assignment to the other, after it was made, 
 and could not be charged with notice of a fact by informa- 
 tion received before the fact was accomplished. The mere 
 circumstance that he knew of his rival's intention to obtain 
 an assignment of the security could give that rival no 
 superior equity ; so that his vigikmce in being beforehand 
 with the other creditor, and getting his instrument first of 
 record, was sufficient to give him the paramount right.^ 
 
 § 238. Judgments Given Precedence Over Prior 
 Deeds. — In some instances, the courts, under the peculiar 
 wording of the recording acts of their states, or influenced 
 and controlled by earlier decisions of the same courts, have 
 held that a creditor would not be affected by the registra- 
 tion of a prior deed, subsequent to the obtaining of a judg- 
 ment,-' or even the contraction of the debt for which the 
 judgment is rendered.^ 
 
 § 239. Deed Takes Priority if Registered Before Exe- 
 cution Sale. — The better opinion seems to be, however, 
 under statutes rendering unrecorded deeds void, as against 
 subsequent purchasers and mortgagees, without notice, and 
 for a valuable consideration, and where judgments become 
 liens upon the real estate of the debtor from their rendi- 
 tion, that where a deed or mortgage has been .executed and 
 deUvered prior to the date of the judgment, -the purchaser 
 or mortgagee will be entitled to the protection of the reg- 
 istry laws if his deed or mortgage is filed for record before 
 the sale under execution.'' 
 
 § 240. Judgments Do Not Become Liens After Convey- 
 ance and Before Registry. — So, where pm^chasers and mort- 
 gagees were allowed ninety days within which to deposit 
 
 1 Wardin v. Adams, 15 Mass., 233. 
 
 -' Hulings V. Guthrie, 4 Penn. St., 123; Taylor v. Doe, 13 How. (U. S.), 
 287. 
 
 3 See Britton's Appeal, 45 Penn. St., 172. 
 
 *Greenleaf v. Edes, 2 Minn., 264; Davis v. Ownsby, 14 Mo., 170; 
 "Valentine v. Havener, 20 id., 133; Mann v. Best, 63 Mo., 491, and cases 
 cited.
 
 OTHEK NOTICE CONSIDEKED. 
 
 13Y 
 
 their deeds and mortgages for record, and a purchaser al- 
 lowed the time to pass without recording his deed, before 
 he had deposited it for record, judgment was obtained 
 against the former owners, and one A. became " replevin 
 bail " upon the faith of representations by the judgment 
 debtor that the land was unincumbered, except by the lien 
 of the judgment. In an action by the replevin bail for the 
 purpose of securing indemnity through the means of the 
 judgment, for his collateral undertaking, it was held that 
 the judgment was no lien upon the land, for the reason that 
 the debtor had no title to the land at the timp it was ren- 
 dered, and the replevin bail could occupy no better position 
 with respect to the judgment than the creditor himself 
 would have enjoyed.^ 
 
 § 241. Title Not Affected by Recording Deed After Title 
 Tests in Innocent Purchaser. — ^The title having once 
 passed through the hands of a purchaser for value, and 
 without notice of a prior unregistered deed, it will pass to 
 subsequent grantees, unaffected by the prior conveyance, 
 whether subsequently recorded or not. So, where one who 
 purchased with notice, and before the registration of the 
 prior deed, conveys to another, who has no actual or con- 
 structive notice of such instrument, the title of his grantee 
 is good against the former unregistered conveyance. 
 Should this last grantee convey to still another who had 
 both actual and constructive notice of the prior deed, his 
 title would be good in spite of the outstanding conveyance.^ 
 
 1 Under some of the English statutes judgments do not become liens on 
 real estate as against subsequent bo7ia fide purchasers, unless they are 
 duly registered. Beavan v. Earl of Oxford, 6 De G., M. & G., 492 ; Eyre v. 
 McDowell, 9 H. L. Cas., 619; Hickson v. CaUis, 1 Jones & L., 94. See 
 Freer v. Hesse, 4 De G., M. & G., 495; Governors of the Grey Coat Hos- 
 pital V. Westminster, etc., Comm'rs, 1 De G. & J., 531; Knight v. Po- 
 cock, 24 Beav., 436; Churchill v. Grove, 1 Ch. Cas., 35; Lee v. Green, 
 6 De G., M. & G., 155; Davis v. Strathmore, 16 Ves., 419; Proctor v. 
 Cooper, 3 Drew, 1; 1 Jur., N. S., 149; Runyan v. McClellan, 24 Ind., 
 165. 
 
 2 Trull V. Bigelow, 16 Mass., 406; Somes v. Brewer, 2 Pick., 184.
 
 138 NOTICE BV KEGISTEATION OF INSTRUMENTS. - 
 
 § 242. Reasons for tlie Above Doctrine. — It aaouIcI be 
 but a doubtful protection to a lona fide purchaser if his re- 
 liance upon the record only gave him a title to the prop- 
 erty pui'chascd, Avhich the law rendered inalienable except 
 to those who might be as ignorant of the adverse claim as 
 he was himself before the purchase. The law having de- 
 clared that the deed was void as to him, meant that the 
 title which he obtained should be as absolute and unbur- 
 thened by the unregistered deed, or those claiming under 
 it, as though no such instrument was ever executed. The 
 title cannot be wrested from him by the negligent grantee, 
 nor will the law allow the value of the property to be di- 
 minished in his hands by depriving him of the benefits of a 
 free market.^ 
 
 § 243. Effect of Re-purcliase by Fraudulent Grantor. — 
 But should the premises come again to the hands of the fraud- 
 ulent grantor, they will be held by him in trust for the 
 first grantee. It being deemed a wrong of less magnitude 
 to deprive the innocent purchaser of this one opportunity 
 to sell than it would be to suffer the perpetrator of such a 
 fraudulent act to enjoy any advantage over his victim.- 
 
 § 244. Conflicting Decisions as to Sufficient Notice of 
 Unregistered Deed. — There is a marked contrariety in the 
 authorities as to what is sufficient notice of an unregistered 
 deed. This difference, in some instances, is- owing to the 
 different statutory provisions of those states where the 
 question has been adjudicated. In other instances there 
 are conflicting decisions as to the proper construction of 
 similar or even identical statutes, by w^hich decisions the 
 law is regarded as settled within the jui'isdiotion of the 
 courts by which they are rendered.* 
 
 > Ante, §§ 61, 62. 
 
 - Ante, % 63. 
 
 3Dey V. Dunham, 2 Johns. Ch., 182; Dunham v. Dey, 15 Johns., 555; 
 Norcross v. Widgery, 2 Mass., 505; McMechan v. Griffing, 3 Pick., 149; 
 U. S. Ins. Co. V. Shriver, 3 Md. Ch., 381; Gen'l Ins. Co. v. U. S. Ins. 
 Co., 10 Md., 517; Flemmg v. Burgin, 2 Ii'ed. Eq., 584; Noyes v. HaU, 97 
 U. S., 34; Brinkman v. Jones, 44 Wis., 498; White v. Foster, 102 Mass.,
 
 OTHER NOTICE CONSIDERED. 139 
 
 § 245. Express Notice Required. — In some of tlie cases 
 it has been decided that nothing short of express notice of 
 the prior unregistered deed will suffice to charge the subse- 
 quent purchaser, and protect the title of the prior grantee. 
 The information by which the subsequent grantee or mort- 
 gagee is advised of the existence of the prior unregistered 
 instrument, to be effective, must be so direct and positive 
 that to disregard it Vv^ould amount to fraud on his part.^ 
 
 § 246. Actual or Constructive. — Others hold that the 
 notice may be either actual or constructive, express or im- 
 plied. And. where actual notice is required by statute, they 
 vary in their construction of the law as to the evidence by 
 which such notice may be established. These la,tter, in fur- 
 therance of the liberal construction given for the benefit of 
 the grantee whose deed is unrecorded, hold that any fact 
 coming to the laiowledge of the subsequent purchaser, suffi- 
 cient to put a man of ordinary prudence upon inquiry, and 
 which, if followed out, would lead to express notice of the 
 unregistered conveyance or claim, is sufficient to invalidate 
 the subsequent deed, notwithstanding the provisions of the 
 registry laws. !Notice is imputed to him on account of his 
 negligence in not prosecuting his inquiries in the direction 
 indicated.- 
 
 375; Lamb v. Pierce, 113 Mass., 72; Crassen v. Swoveland, 22 Ind.,'427; 
 Wilson t'. Hunter, 30 id., 466; Lawton v. Gordon, 37 Cal., 202; Maupin 
 V. Emmons, 47 Mo., 304. 
 
 iPomxoy V. Stevens, 11 Mete. (Mass.), 244; Spofford v. Weston, 29 
 Me., 140; Porter v. Sevy, 43 id., 519; Dooley v. Wolcott, 4 Allen, 406; 
 Lilliard v. Ruckers, 9 Yerg., 64; Dewey v. Littlejohn, 2 Ired. Eq., 495; 
 May ham v. Coombs, 14 Ohio, 428; Hine v. Dodd, 2 Atk., 275; Jackson 
 V. Van Valkenburgh, 8 Cow., 260; Jolland v. Staiubridge, 3 Ves. Jr., 478. 
 
 2 Dunliam v. Dey, 15 Johns. , 555 ; Brinkman v. Jones, 44 Wis. , 498 ; 
 Noyes v. Hall, 97 U. S., 34; Wilson v. Hunter, 30 Ind., 466; Ci-assen v. 
 Swoveland, 22 Ind., 427; Ti-uesdale v. Ford, 37 lU., 210; Cabeen v. 
 Breckenridge, 48 111., 91; Porter v. Cole, 4 Me., 20; Wliitbread v. Jor- 
 dan, 1 Young & Colyer, 303; Williamsons. Brown, 15 N. Y., 354; I&ider 
 V. Lafferty, 1 Whart., 303; Hankinson v. Barbour, 29 111., 80; Hopkins 
 V. Gerrard, 7 B. Monr,, 312; Curtis v. Mundy, 3 Mete. (Mass.), 405; 
 Clark V. Trindle, 52 Pa. St., 492; Dixon v. Doe, 1 Sm. & Marsh., 70; Tay-
 
 140 NOTICE BY KEGISTKATION OF INSTRUMENTS. 
 
 § 247. Different Kinds of Notice Referred to.— As to 
 
 the effect of the doctrine of lis pendens, and notice arising 
 from recitals in the conveyances forming the chain of title 
 of the ])m'chaser, and also as to notice by possession, the 
 reader is referred to the subsequent chapters where these 
 topics are separately treated, and more fully illustrated by 
 reference to adjudged cases, classified under their respective 
 heads.* 
 
 § 248. Cases Holding Notice Ineffectual Against the 
 Record. — Some of the cases cited in support of the strictest 
 construction of the statute, as Lilliard v. Ruckers, and Dewey 
 V. Littlejohns, take the extreme position that personal notice 
 of an unregistered deed will not affect the subsequent pur- 
 chaser who relies upon the record. So,4n the case of May- 
 ham V. Coombs,^ which was decided under a statute rendering 
 unregistered mortgages absolutely void as to the subsequent 
 purchases or incumbrances, the court gave the statute such 
 a construction as would render notice hj any other means 
 ineffectual. 
 
 §249. Cases Holding Implied Notice Sufficient. — The 
 cases of Williamson v. Brown,* Whitbread v. Jordan,* and 
 most of the others cited in support of the more liberal 
 construction, go upon the ground that even actual notice is 
 a fact to be established by evidence, and may be proved 
 otherwise than by evidence of direct personal information. 
 They also hold, for the most part, that voluntary ignorance 
 on the part of the pm'chaser is the legal and" logical equiva- 
 lent of actual knowledge. 
 
 § 250. Illustration of Implied Notice. — Musgrove v. 
 Bonser ^ was a case where the deed had been copied upon 
 
 loru. Lowenstein, 50 Miss., 278; Edwards v. Thompson, 71 N. C, 177; 
 Musgrove v. Bonser, 5 Oregon, 313; Nute v. Nute, 41 N, H., 60; Galland 
 V. Jackman, 26 Cal., 79. See Wormald v. Maitland, 35 L. J. Ch. (N. S.), 
 69; In re Allen, 1 Ir. R. Eq., 455. 
 
 1 See post, chs, IV, V, VI. 
 
 2 14 Ohio, 428. 
 
 3 15N. Y., 354. 
 
 *1 Y. & Col., 303. 
 
 *5 0reg., 313.
 
 OTHEE NOTICE CONSIDERED. 141 
 
 the records, but because it was improper!}^ acknowledged 
 before recording, the record was held a nullity as construct- 
 ive notice. But the attorney who was employed by the 
 subsequent purchaser to search the record for instruments 
 affecting the title, saw the defective record of the deed in 
 question, and informed the purchaser that it had no right 
 on record. Upon the ground that notice to the agent was 
 notice to the principal, the court held that the actual knowl- 
 edge the attorney had of the defectively acknowledged deed 
 was sufficient to have put a man of ordinary prudence upon 
 such inquiry as must have inevitably led to the knowledge 
 of the unrecorded deed, and that it was therefore binding 
 upon the purchaser's conscience.^ 
 
 § 251. Any Kind of Notice Will Affect Purchaser. — 
 From a careful consideration of the authorities, old and new, 
 English and American, it seems that the better doctrine is 
 now, except where the statute is imperative in its provisions 
 to the contrary, that any species of notice, by which one 
 seeking to purchase real estate is informed of or cautioned 
 in regard to any unregistered instrument affecting the title 
 to the property, or any equitable interest claimed by any 
 one, will as effectually bind such property in the hands of 
 such purchaser as it would in the hands of the fraudulent 
 grantor.^ 
 
 § 252. Putting Upon Inquiry Held Insufflcient.— The 
 case of Jackson v. Yan Yalkenburg ^ is one of those in which 
 it is declared that notice of an antecedent unregistered 
 mortgage upon the leasehold, to the assignee for value of a 
 subsequent mortgage upon the fee of the same premises, in 
 order to affect his rights under the assignment, must be 
 such as would with the attendant circumstances be suiiicient 
 to fix upon him the imputation of a fraudulent purpose in ac- 
 cepting the assignment. It was held that putting the party 
 
 'See Barnes v. McClinton, 3 Perm., 67. 
 
 2 Porter v. Cole, 4 Me., 20. See ante, ch. I, Actual Notice. 
 
 8 8 Cow., 260.
 
 142 NOTICE BY REGISTRATION OF INSTKUilENTS. 
 
 upon inquiry was not sufficient. The circumstances of this 
 particular case were such that it may well be doubted 
 whether such notice as the assignee had was sufficient to 
 put him upon inquiry respecting a mortgage, as what he 
 learned was from the record of an absolute assignment of 
 the lease, without the defeasance which should have been 
 recorded with it.' 
 
 § 253. Knowledge of Mortgage Withheld from Rec- 
 ord. — Where a mortgage is designedl}^ withheld from regis- 
 tration, in order to preserve tlie credit of tlie mortgagor in 
 the commercial world, such conduct on the part of the 
 mortgagee is not fraudulent as to one having knowledge of 
 the entire transaction, as he is not deceived by it. And 
 whatever might be the rights of a party who purchased in 
 ia'norance of the facts, the one who seeks to take advantage 
 of an unregistered instrument, of the existence of which he 
 has been fully informed, Avill be allowed to enjoy no special 
 advantages from the fact that the failure to record the 
 mortgage was fraudulent as to others.- 
 
 § 254. Record of Instrument Affecting Equitable In- 
 terest. — The record of an assignment or mortgage of an 
 equitable interest in real estate will operate as notice to 
 subsequent purchasers or mortgagees, as effectually as though 
 the legal title were conveyed or incumbered ; as where one 
 purchases land for which he receives a title-bond instead of 
 a deed, conditioned that the legal title sliall be convej^ed to 
 him when the land is paid for, which bond is duly recorded ; 
 and, before pa3"ing for the land, the purchaser mortgages 
 his interest, and subsequently the mortgagor, in order to 
 meet the demands of his grantor, executes a mortgage to 
 still another party, and with the proceeds pays for the land 
 and receives a deed. In such case the release from the 
 vendor's lien inures to the benefit of the first mortgagee, 
 and the second mortgagee, by the record of the title-bond 
 
 1 See ante, % 186 et seq. 
 
 2 Pike V. Arinstead, 1 Dev. Eq., 110.
 
 OTHER XOTICE CONSIDEKED. 143 
 
 and the first mortgage, is charged with notice of the rights 
 thereby secured.^ 
 
 § 255. Effect of Withdrawing Deed from Files Before 
 Recording. — But when, as in the case of Glamorgan v. 
 Lane,^ the grantee placed his deed on record on the 26th 
 da}" of the month, and a subsequent purchaser received a 
 deed to the same premises from the same grantor on the 
 27th, which he placed on record in the forenoon, and the 
 first grantee withdrew his deed from the files to be canceled, 
 and accepted another deed, which he deposited for record in 
 the afternoon of the 27th, it was held that the record of the 
 first deed was no notice of the one given in lieu thereof, and 
 that the prior purchaser could not claim priority of record 
 after withdrawing the first deed from the files.' 
 
 § 256. Priority Secured by Registration. — Under stat- 
 utes which prescribe no time within which the instrument 
 may be recorded, the courts have generally regarded the 
 first recorded of two instruments affecting the title to the 
 same land, as the one entitled to precedence. As where a 
 grantor took a mortgage for a portion of the purchase 
 price, and intrusted it to the mortgagor with directions to 
 have it recorded, but before depositing it for record the 
 morto-ao-or entered into a written contract with another 
 party, who had no notice of the mortgage, to convey the 
 land to him; the mortgage being recorded prior to the 
 recording of the contract, and before the latter was either 
 carried out or brought to the knowledge of the mortgagee, 
 it was held that he might subject the land to the payment 
 of his debt as though the contract had not been made.'* 
 
 § 257. Fraud Practiced by Agent. — It has been held, 
 where there was a similar statute to the one under which 
 the case cited above was decided, where the claim for prece- 
 
 1 Alderson v. Ames, 6 Md., 52; Glamorgan v. Lane, 9 Mo., 446; Gren'l 
 Ins. Co. V. U. S. Ins. Co., 10 Md., 517; U. S. Ins. Co. v. Sliriver, 3 Md. 
 Ch., 381. 
 
 2 9 Mo., 446. 
 
 3Kiser v. Heuston, 38 111., 253. 
 
 * Anketel v. Converse, 17 Ohio St., 11.
 
 144 NOTICE BY KEGISTRATION OF INSTKUMENTS. 
 
 dence was being contested in a court of equity, that the 
 court would determine the relative rights of the parties on 
 equitable principles.^ It is difficult to understand how a 
 court of equity could tolerate such a palpable fraud as was 
 apparently perpetrated upon the innocent contracting party 
 in the Ohio case. The mortgagee, by intrusting his secu- 
 rity to the mortgagor, not only made him his agent, but did 
 so with the knowledge that he, of all others, was most in- 
 terested in violating his trust, and by so doing enabled him 
 to practice a fraud upon others. 
 
 §258. Tague Information Disregarded. — The case of 
 Jolland V. Stainbridge,^ which has been cited as one in 
 which express notice is required in order to deprive a sub- 
 sequent pm'chaser or mortgagee of the protection of the 
 registry laws, was a contest between one claiming mider an 
 unregistered will, and a subsequent mortgagee. The evi- 
 dence of notice was that the mortgagee was told, while 
 negotiations were pending, that the person offering the 
 premises had no right to sell the same. Also the evidence 
 of the mortgagee's bookkeeper, that the WTfe of mortgagee 
 told the witness, in the presence and liearing of her husband, 
 prior to the mortgage, that the devisee's mother had told 
 the mortgagee not to purchase, as the estate belonged to 
 her daughter. Still the court held that the evidence of 
 notice was not such as would show conduct on the part of 
 the mortgagee amounting to actual fraud, and gave the pref- 
 erence to the subsequent registered mortgage. 
 
 § 259. Sul)se(iuent Purchase Not Invalidated by Notice 
 of Prior Deed. — Notice will not always invalidate a sub- 
 sequent purchase, even when it is so direct and positive as 
 to be equivalent to actual knowledge. Circumstances may 
 arise where a purchase, subsequent to an unregistered con- 
 veyance, may be made in such good faith that it will be 
 protected, even though the purchaser has undeniable knowl- 
 edge of the prior deed. As where he is informed by the 
 
 1 Swigert v. Bank of Kentucky, 17 B. Monr., 268. 
 
 2 3Ve3. Jr., 478.
 
 OTHEK NOTICE CO^'SIDEKED. 145 
 
 prior grantee liimself that the deed is withheld from the 
 record because he does not intend to assert any title under 
 it, and that it was never intended to operate as an actual 
 conveyance of the land, and the second purchase is made 
 in reliance upon these representations. 
 
 § 260. Same — DouMfiil Authority. — A court of equity 
 has even declared the doubtful doctrine that a subsequent 
 purchaser would be protected, when he acted in good faith, 
 after notice of the prior unregistered deed, because he had 
 been informed of the intention of such grantee not to 
 record his deed or assert his title, where it did not appear 
 that the information came from the grantee himself.' 
 
 §261. Record Chain of Title Incomplete.— The pur- 
 chaser may be served with constructive notice by registra- 
 tion, even when the complete chain of title does not appear 
 of record. The connection between the title or interest 
 with notice of which he is charged by the record, and that 
 upon which it depends, may be independent of the record. 
 As, where the provision of the statute was, that every 
 instrument affecting the title of real estate from the time 
 of filing with the register of deeds for record " shall impart 
 notice to all persons of the contents thereof, and all subse- 
 quent purchasers and mortgagees shall be deemed to pur- 
 chase with notice," it was held that one purchasing with 
 notice of an outstanding unregistered equitable interest in 
 land was chargeable with notice of an incumbrance of such 
 interest which had been filed for record, though he may have 
 purchased without actual notice of such mortgage." 
 
 § 262. Assignee of a Mortgage Regarded as Pnr- 
 cliaser. — The assignee of a mortgage will be protected to 
 the same extent as any other innocent purchaser.* As, 
 
 1 Fleming v. Burgin, 2 Iredell, Eq., 584. Where the subsequent pur- 
 chaser receives no notice until after consideration paid, notice will not 
 prevent him from perfecting his right by filing liis deed for registration. 
 Essex V. Baugh, 1 Y. & C. Ch., 620; Elsey v. Lutyens, 8 Hare, 159. 
 
 2 Jones V. Lapham, 15 Kans., 540. 
 
 3 But the purchaser of a mortgage will have constructive notice from 
 the record, of a mortgage of even date, though recorded subsequent to 
 
 10
 
 IJrG KOTICE BY EEGISTKATION OF IXSTRUMEXTS. 
 
 where a mortgage was given to secure a debt, subsequent 
 to a deed conve3'ing the same premises to another, but the 
 deed was not recorded until after the mortgage had been 
 assigned to a hona fide purchaser for value, and the mort- 
 gagee took the mortgage without notice of the unregistered 
 deed, it was lield that the assignee was not affected by the 
 subsequent registration of the deed, but woidd still be enti- 
 tled to subject the land to the payment of his demand,^ 
 
 § 2fi3. Time of Notice. — The time when the notice is 
 imparted to a subsequent purchaser is often material in 
 determining whether or not his purchase will be affected 
 thereb}''. The notice, in order to affect his conscience, may 
 have been given too long before his acquisition of title to 
 render it probable that the fact of the prior conveyance 
 was present to liis mind when he made the purchase.^ 
 
 § 2G4. Same, to Attaching Creditor. — But where land 
 was attached at the suit of a creditor, as the land of his 
 debtor, when he had been informed by the grantee, two 
 years prior to tlie attachment, tliat he had purchased the 
 land from the debtor, it was held that though the deed to 
 the purchaser was still unrecorded at the time of the attach- 
 ment, the notice was sufficient, and the purchaser's title 
 would be protected as against the attaching creditor.' 
 
 § 265. When Notice Too Late. — The notice may also be 
 too late to be effectual against those who subsequently ac- 
 quire title to the premises, or an equitable interest therein. 
 On this point, there has been no little contrariety of opinion 
 exj^ressed by the courts, at different times, — partly owing 
 to difference in the statutes, but in some instances the de- 
 cisions are at variance where the statutes construed are 
 substantially the same. However, it wiU be found to be 
 
 tiie one purchased, if such purcliase Tvas subsequent to the recording 
 of the other instrument. Van Aken v. Gleason, 34 Mich., 477. 
 
 I Mott V. Clark, 9 Pa. St., 399. 
 
 2Boggs V. Varner, 6 W. & S., 469; Fuller v. Bennett, 2 Hare, 394; 
 Worsley v. Earl of Scarborough, 3 Atk., 392. 
 
 ^Ogden V. Haven, 24 111., 57; Cox v. Milner, 23 id., 476.
 
 OTHER NOTICE CONSIDERED. 
 
 147 
 
 almost uniformly held that the notice is too late if it comes 
 to the purchaser only after he has completed the purchase 
 and paid the consideration.^ 
 
 § 366. After Purchase at Execution Sale. — It has been 
 maintained, however, that a purchaser at an execution sale 
 directed by the creditor in good faith, after having made 
 the purchase is entitled to his deed, even though he receives 
 notice of a prior unregistered deed previous to his payment 
 of the purchase money. And it is further held that his 
 rights will not be affected, either by the fact that he, being 
 a stranger to the execution, had notice of the prior deed, or 
 that he is himself the execution creditor, provided he had 
 no notice before the sale. But should the knowledge of 
 the adverse interest come to him in the way of an an- 
 nouncement at the time of the sale, and before it is closed, 
 the title acquired by the purchase will be subordinate to 
 that of the prior grantee.^ 
 
 § 267. Bofore Legal Title is Conveyed. — Upon the other 
 hand, it has been held by the same court in which the above 
 doctrine was announced, that a purchaser of land takes 
 subject to prior equities of which he has notice, although 
 the contract is completed, and even the purchase money 
 paid, before notice is given of the antecedent claim, pro- 
 vided he is notified before • his own equity is clothed with 
 the legal title ; and creditors to whom the title is transferred 
 by operation of law occupy no better position than any 
 other subsequent purchaser.^ 
 
 § 268. Time of Filing for Record Fixed by Statute.— 
 In those states where a certain period of time is fixed by 
 statute within which the instrument is required to be lodged 
 with the officer for registration, the failure to deposit it for 
 record within the time prescribed does not always, as we 
 have seen,* operate to invalidate the record. It is, in gen- 
 
 1 Henry v. Raiman, 25 Penn. St., 354. See, also, ante, § 93. 
 
 2 Low V. Blinco, 10 Bush (Ky.), 331; Morton v. Eobards, 4 Dana, 258; 
 Halley v. Oldham, 5 B. Monr., 233; Righter v. FoiTCster, 1 Bush, 278. 
 
 3 Corn V. Sims, 3 Met. (Ky.), 391. 
 * Supra, %% 102, 225.
 
 148 NOTICE BY REGISTKATION OF IXSTKUMENTS. 
 
 eral, good for all the purposes for whicli it was originally 
 designed, from the date of its filing for record, whenever 
 that is after the time prescribed.' But it has been decided 
 that a voluntary deed, to be effectual as against creditors of 
 tlie grantor without notice, should be recorded within three 
 months of the deUvery of the deed, where that was the 
 statutory time fixed.- The statute was construed with the 
 same strictness in favor of a subsequent mortgage given to 
 secure the debt of the husband, where the prior voluntary 
 deed was from the husband to the wife.' 
 
 § 2()9. RecordiDg After Death of Grantor. — It has also 
 been held that the registration of a deed after the death of 
 the grantor was not good as against creditors of the 
 grantor, who had no notice of such conveyance ; * but the 
 application of this rule Avould be controlled in a great 
 measure by statutorj'- provisions as well as by the pecuhar 
 circumstances of any case in which it might be invoked. 
 
 § 270. Examining Records Insiilficient luqniry. — A 
 purchaser who, previous to the purchase, is infonned of a 
 prior unregistered deed to the same premises, and who 
 searches the records without finding any entry of the prior 
 deed, will not be protected as a pm-chaser in good faith 
 merely because he examined the records after receiving in- 
 formation of the prior deed. He should have made per- 
 sonal inquiry from those most Ukely to possess knowledge 
 of the conveyance, and, from the character of the discover- 
 ies made in the course of such inquiry, been warranted in 
 beheving that no such deed had ever been executed and 
 delivered;' 
 
 § 271. Unrecorded Chattel Mortgage. — Under a statute 
 which rendered a mortgage of chattels void, except as 
 against the mortgagor and his hell's, unless recorded, it was 
 
 1 Supra, %% 103, 225. 
 - Fulcher v. Royal, 55 Ga., 68. 
 ^ Sumner v. Bryan, 54 Ga., 613. 
 * Lank v. Hiles, 4 Houst. (Del.), 87. 
 
 sShotweU V. Harrison, 30 Llich., 179; ante, § 11, and cases cited in 
 note.
 
 OTHEE NOTICE CONSIDEEED. 149 
 
 held that such a mortgage was good against an attaching 
 creditor with notice. And also that notice to the officer 
 levying the attachment was notice to the creditor by whom 
 the attachment was directed.' 
 
 §272. Description of Debt in Mortgage. — In some 
 cases considerable strictness has been required in mortgages, 
 to render their registration effectual, in the description, not 
 only of the property incumbered, but of the debt thereby 
 secured. In general, however, more recent decisions have 
 favored such modifications of the rules in regard to specifi- 
 cation of the amount of debt, and the nature of the evi- 
 dences thereof, that morto^ao^es to secm^e future advances 
 are permitted when the amount to be secm'ed is necessarily 
 uncertain.- 
 
 iTiicker v. Tilton, 55 N. H., 223. 
 
 2 Witczinski v. Everman, 51 Miss. , 841. See, also, United States v. Hooe, 
 3 Ci-anch, 73; Shirras v. Caig, 7 Ci-anch, 34; Leeds v. Cameron, 3 Sumn., 
 488; Commercial Bank v. Cunningham, 24 Pick., 270; (joddard v. Saw- 
 yer, 9 Allen, 78; James v. JMorey, 2 Cow., 246, 292. It is held in the 
 latter case, however, that the record of an assignment of a mortgage 
 will not be notice to subsequent pm-chasers, because it is not requu-ed to 
 be registered. It is laid down in Jones on Mortgages (§ 365), as the En- 
 ghsh iTile with respect to notice, as it affects mortgagees for futm-e 
 adTances, that notice to such a mortgagee of a subsequent incum- 
 brance wiU render any advances made thereafter subservient to the 
 hen of the second mortgagee. But such does not seem to be the mle in 
 this country. Jones on Mortgages, §§ 365, 366, 367, and cases cited.
 
 CHAPTER IV. 
 
 NOTICE BY POSSESSION. 
 
 § 273. General Docti-ine. 
 
 274. Modified by Registry Laws. 
 
 275. Evidence of Actual Notice. 
 
 276. Sufficient to Put Purchaser Upon Inquiry, 
 
 277. Same. 
 
 278. Effect of Knowledge of Possession. 
 
 279. Voluntary Ignorance. 
 
 280. Character of Possession. 
 
 281. Possession by Tenant. 
 
 282. Notice of Interest Claimed by Occupant. 
 
 283. Notice of titerest of Occupant's Creditors. 
 
 284. Tenant's Occupancy, Notice of Landlord's Title. 
 
 285. Same. 
 
 286. Consistency of Foregoing Doctrine. 
 
 287. Possession No Evidence of Title in Stranger. 
 
 288. Must be Actual, Notorious and Continuous. 
 
 289. Occupancy by Church Society. 
 
 290. Exclusive. 
 
 291. Unequivocal. 
 
 292. Doubtful in Extent. 
 
 293. Same. 
 
 294. Possession and Right Claimed Contemporaneous. 
 
 295. Instance of Exception to the Rule. 
 
 296. Effect of Abandoning Possession. 
 
 297. Possession Referred to Record Title, 
 
 298. Same. 
 
 299. Claim Consistent with Record Title. 
 
 300. Notice of Reservation of Easement. 
 
 301. Exception to Rule Requiring Consistency. 
 
 302. Possession to Begin with Unrecorded Title. 
 
 303. Possession as Lessee Changed to Possession as Owner. 
 
 304. Tlie Rule in Mississippi. 
 
 305. Ci-editors Affected with Notice. 
 
 306. Possession of Chattels. 
 
 §273. General Doctrine. — The doctrine seems quite 
 firmly established, by successive judicial decisions, both in
 
 NOTICE BY POSSESSION. 151 
 
 this country and in England, that open, notorious and ex- 
 clusive possession of real estate, under an apparent claim of 
 ownership, is notice to those who subsequently deal with 
 the title, of whatever interest the one in possession has in 
 the fee ; whether such interest be legal or equitable in its 
 nature.^ In general, the possession upon which such claim- 
 ants rely as notice to purchasers is held under and pursuant 
 to an unrecorded deed, or a contract of purchase, vrhich if 
 in writing is unrecorded, and if mereh'' a parol agreement, 
 depends upon its partial execution, to entitle the covenantee 
 to specific performance. 
 
 1 Story r. Black (Mont.), 1 Pac. Rep., 1; Landes v. Brant, 10 How., 
 348; McKenzie v. PerrU, 15 Ohio St., 168; Jones v. Marks, 47 Cal., 242; 
 Ray V. Birdseye, 5 Den., 626; Cabeen v. Breckenridge, 48 111., 91; 
 School Dist. V. Taylor, 19 Kans., 287; Jolinson v. Clark, 18 Kans., 157; 
 Tankard V. Tankai-d, 79 N. C, 54; Edwards v. Thompson, 71 N. C, 177; 
 Noyes v. Hall, 97 U. S., 34 ; Trnesdale v. Ford, 37 111., 210 ; Dunlap v. Wil- 
 son, 32 ni., 517; Reeves v. Ayres, 38 El., 418; Keys v. Test, 33 HI., 316; 
 BroAvn v. Gaffney, 28111., 149; Bradley r. Snyder, 14 HI., 263; lU. C. 
 R. Co. V. McCuUough, 59 lU., 166; Tunison v. Chamblin, 88 lU., 378; 
 Pell V. McEh-oy, 36 Cal., 268; Bogue v. Williams, 48 lU., 371 ; Strickland 
 V. Kirk, 51 Miss., 795; Loughridge v. Bowland, 52 Miss., 546; Moss?'. 
 Atkinson, 44 Cal., 3; Killey v. Wilson, 33 Cal., 690; Seai-s v. Munson, 23 
 la., 380; Phillips v. Costley, 40 Ala., 486; Perkins v. Swank, 43 Miss., 
 349; GUdweU v. Spaugh, 26 Ind., 319; Warren v. Richmond, 53 lU., 52; 
 Bank of Orleans r. Flagg, 3 Barb. Ch., 316; Baldwin v. Johnson, Saxt. 
 Ch., 441; Baynard V. Norris, 5 GUI, 468; Ringold v. Bryan, 3 Md. Ch. 
 Dec, 488; Taylor v. KeUy, 3 Jones, Eq., 240; Doyle?;. Stevens, 4 Mich., 
 87; Emmons v. Murray, 16 N. H., 385; MuUins v. Wimberley, 50 Tex., 
 457 ; McLaughlin v. Shepherd, 32 Me., 143; Hardy v. Summers, 10 GiU & 
 J., 316; Wickes v. Lake, 25 Wis., 71; McCuUoch v. Cowher, 5 Watts & 
 Serg., 427; Woods r. Farmere, 7 W^atts, 385; Bailey r. ^\^lite, 13 Tex., 
 114 ; Davies v. Hopkins, 15 111., 519 ; Lea v. Polk County Copper Company, 
 21 How., 493; Hughes v. United States, 4 Wall., 232; Shumate v. Reavis, 
 49 Mo., 333; Chesterman t\ Gardner, 5 Johns. Ch., 29; Tuttle v. Jack- 
 son, 6 Wend., 213; Morton v. Robards, 4 Dana, 258; Macon u. Sheppard, 
 2 Humph., 335; Burt v. Cassety, 12 Ala., 734; Dixon v. Doe, 1 Sm. & 
 Marsh., 70; Johnston v. Glancy, 4 Blackf., 94: Harris v. Ai-nold, 1 R. I., 
 125; Cunningham v. Buckingham, 1 Ohio, 264; Rogers v. Jones, 8 N. 
 H., 264; Bailey v. Richardson, 15 Eng. L. & Eq., 218; Havens v. Bliss. 
 26 N. J. Eq., 363.
 
 152 NOTICE BY POSSESSION. 
 
 §274. Modified by Registry Laws. — The application of 
 this doctriiio to possession under uiu'cgistered conveyances, 
 has, it is true, been somewhat modiiied by the registry 
 laws,^ and in one state, at least, it has been so frequently 
 held, under the recording act of that commonwealth, that 
 l)ossession under an unrecorded deed will not amount to 
 notice of the title by which the possessor holds, that it may 
 novr be regarded as a settled rule of property within that 
 jurisdiction.- There, the statute provides in substance that 
 nothing short of actual notice of an unrecorded deed will 
 suffice to invalidate the title of a subsequent purchaser or 
 mortgagee, and it is held that proof of such notice is not 
 made out, simply by showing that the grantee under the 
 unrecorded instrument was in open occupation of the land, 
 and the subsequent purchaser had knoAvledge of such occu- 
 pation. Possession is at most considered as sufficient to put 
 subsequent purchasers upon inquiry, and under the strict 
 provisions of the statute, this is not equivalent to notice, 
 for the reason that the purchaser is not bound to inquire 
 beyond the pubhc record of conveyances, and his failure to 
 do so does not cast upon him either an imputation of fraud 
 or gross negligence. In any event mere possession is not 
 conclusive upon the purchaser. The effect is to put him 
 upon inquiry, and if it can be shown that, prior to purchase 
 from the holder of the record title, he followed up the in- 
 quiry in good faith, the presumption arising from possession 
 by another will be overcome.^ 
 
 § 275. Evidence of Actual Notice. — Under a statute of 
 precisely similar import, in the state of Missouri,^ the su- 
 preme court, by repeated decisions, have settled the law 
 
 iFIagg V. Mann, 2 Sumn., 486; Harris v. Ai-nold, 1 R. I., 126; Hewes 
 V. Wiswall, 8 Greenl., 94; Emmons v. Mmrray, 16 N. H., 385. 
 
 2 Sibley v. Leffingwell, 8 Allen, 584; Dooley v. Wolcott, 4 Allen, 406; 
 Mara v. Pierce, 9 Gray, 306; Pomroy v. Stevens, 11 Mete, 244. But 
 see Cunningham v. Pattee, 99 ]Mass., 248. 
 
 !>Fair v. Stevenot, 29 Cal., 486; Thompson v. Pioche, 44 Cal., 508. 
 
 <Wag. Stat., p. 277, §26.
 
 NOTICE BY POSSESSION. 153 
 
 upon a construction of the statute, directly opposite to that 
 adopted b}^ the court of last resort of Massachusetts.^ And 
 even m Beatie v. Butler,- where a similar construction is mven 
 to the statute as in the Massachusetts cases, Judge Scott, 
 in rendering the opinion, saj^s: "The fact that another is 
 in possession, when known to a purchaser, may be submitted 
 to a jury, in connection with other cu^cumstances, to show 
 that he had actual notice of an adverse title." And aaain, 
 " Actual notice does not require positive and certain knowl- 
 edge, such as seeing the deed ; but that is sufficient notice, 
 if it be such as men usually act upon in the ordinary affairs 
 of life. When it is shown that purchasers are affected with 
 a knowledge of such circumstances, there the foundation is 
 laid from which the inference of actual notice may be 
 drawn." ^ That portion of the opinion of the learned 
 judge which repudiates the doctrine that actual notice may 
 be derived from the possession of the premises by the ad- 
 verse claimant is a mere dictum which does not meet with 
 the concurrence of his associate.* 
 
 § 276. Sufficient to Put Purchaser Upon Inquiry. — In 
 a subsequent case,^ heard before a full bench, this question 
 w^as perhaps more directly involved, and Judge Leoxakd, 
 deUvering the opinion, while reversing and remanding the 
 cause for error in instructing the jury, in substance, that 
 possession raised the legal presumption of title in the pos- 
 sessor, uses the following language, which met the full con- 
 currence of a majority of the court : " The fact of possession 
 might be presumed to have been within the pm^haser's 
 Ivuowledge ; ^ and if knowledge is brought home to the pur- 
 
 > Vaughan v. Ti-acy, 23 Mo., 415 ; S. C, 25 Mo., 318. Contra, Beatie v. 
 Butler, 21 Mo., 313. 
 
 - Supra. 
 
 3 See, also, Curtis v. Mundy, 3 Mete, 405. 
 
 ^Sepai-ate opinion by Judge EYLA^"D, in same case, 21 Mo., 325. 
 
 5 Vaughan r. Ti-acy, 22 Mo., 415. 
 
 6Noyes v. Hall, 97 U. S., 34; Cabeen v. Breckenridge, 48 Bl., 91; 
 Brown u. Gaffuey, 28 Bl., 149 ; Farmers' Loan, etc., Co. v. Maltby, 8 Paige, 
 361; Doyle i'. Stevens, 4 IVIich., 87.
 
 154 NOTICE BY POSSESSION. 
 
 chaser, tliat a third persoii is in the possession and apparent 
 ownership of the land, it ought, under ordinary circum- 
 stances, to be deemed sufficient information to the second 
 purchaser that the jDosscssor is the owner in fee, under a 
 title derived from a former owner." Later cases by the 
 same court, as cited in the note, fully sustain this \'iew of 
 the law.^ 
 
 § 277. Same. — Under a statute similar to that of the 
 states of Massachusetts and Missouri, the supreme com't of 
 the state of Maine, although denying the doctrine of con- 
 structive notice of unregistered conve3'ances made subse- 
 quent to the enactment of the law, by possession under 
 such conveyances, have taken substantially the same vicAV 
 of what may be considered actual notice as the supreme 
 court of Missouri.- That possession and improvement by 
 the claimant, brought to the knowledge of the purchaser, 
 where such possession is taken under the prior purchase, is 
 sufficient to put the subsequent purchaser upon inquiry as to 
 the character of such possession ; and if the inquiry be made, 
 it will be presumed, in the absence of evidence to the con- 
 trary, that it resulted in knowledge of any title or interest 
 in the premises, pursuant to Avhich the occupant held.* 
 
 § 278. Effect of Knowledge of Possession.— Where the 
 provisions of the recording act are less strict, with respect to 
 the kind of notice required to affect subsequent purchasers, 
 and simplv provide that those who purchase upon the 
 faith of the record, but with notice of prior legal or equi- 
 table titles, there seems to be no question but that the pos- 
 session of such claimant will as effectually notify subsequent 
 
 ^ Infra, §278. 
 
 2 See Hanly v. Morse, 32 Me., 28T; Boggs v. Anderson, 50 Me., 161: 
 Clark V. Bosworth, 51 Me., 528; Beal v. Gordon, 55 Me., 482; Sixtfford 
 V. Weston, 29 Mo., 140; Hull v. Noble, 40 Me., 459. 
 
 3 Butler V. Stevens, 26 Me., 484; M'Laiighlin v. Shepherd, 32 id., 143; 
 Hackwlth v. Damron, 1 Mon., 235; Johnson v. Clark, 18 Kan., 157; 
 Watkins v. Edwards. 23 Tex., 443: lU. Cent. R. R. v. McCuUough, 59 
 m., 1G6; Rogers v. Hussey, 36 Iowa, 664; Smith v. Gibson, 15 Minn., 
 89; Tunison v. Chamblin, 88 lU., 378.
 
 NOTICE BY POSSESSIOIf. 155 
 
 parties as any other circumstance the knowledge of which 
 may be brought home to them.^ 
 
 §279. Tohmtary Ignorance. — The theory upon which 
 the cases proceed in holding possession to be implied notice, 
 or evidence of notice, which can only be overcome by a pur- 
 chaser by proof that the inquiries suggested by this circum- 
 stance were followed out without disclosing any title or 
 interest adverse to his grantor, is not that there is anything 
 corrupt or vicious in the acquisition of title to premises 
 occupied by another than the grantor.- The only effect 
 which the occupancy of the premises can have is to excite 
 inquiry with reference to the title ; and any failure on the 
 part of such pm-chaser to make the inquiry is regarded as 
 an intentional avoidance of the truth which would have 
 been disclosed. His ignorance being voluntary, a purchase 
 by him would be as clearly fraudulent as though he had 
 purchased with full knowledge of the adverse claim, and 
 with the express intention of circumventing the party in 
 possession.* 
 
 iFarnsworth v. Cbilds, 4 Mass., 637; Norcross v. Widgery, 2 Mass., 
 506; Davis v. Blunt, 6 Mass., 487; Prescott v. Heai'd, 10 Mass.^ 60; 
 Govomeur v. Lynch, 2 Paige, 300; Sailor v. Hertzog, 4 A^^lart., 259; 
 Lightner v. Mooney, 10 Watts, 407 ; Knox v. Thompson, 1 Littell, 350 ; 
 Kerr r. Day, 14 Pa. St., 112; Jacques v. "Weeks, 7 AVatts, 261; Lewis 
 V. Bradford, 10 Watts, 67; Boggs v. Vai-ney, 6 Watts & Serg., 469; 
 Dixon V. Doe, 1 Sm. & Marsh., 70; Wilty v. Hightower, 6 id., 345; 
 Macon v. Sheppard, 2 Humph., 335; Taylor v. Lowenstein, 50]\Iiss., 278; 
 GtoSv. Ramsey, 19 Minn., 44; Morrison v. March, 4 Minn., 422; Dunks 
 V. Fuller, 32 Mich., 242; Forest v. Jackson, 56 N. H., 357; Daniels y. 
 Davidson, 16 Ves., 249; Taylor v. Stibbert, 2 Ves., 437; Ti-uesdale v. Ford, 
 37 ni., 210; Dunlap v. Wilson, 32 id., 517; Bradley v. Snyder, 14 id., 
 263; Tankard v. Tankard, 79 N. C, 54; Webber v. Taylor, 2 Jones, 
 Eq., 9; Taylor v. Kelly, 3 id., 240; Edwards v. Thompson, 71 N. C, 177; 
 School Dist. V. Taylor, 19 Kans., 287; Emmons v. Murray, 16 N. H., 385. 
 
 •■^Cook V. Travis, 22 Barb., 338; Faust v. Smith, 23 N. Y., 252. 
 
 3 Grimston V. Carter, 3 Paige, Ch. 421,— Opinion of the Chancellor, p. 426 ; 
 Flaggr. Mann, 2 Sumn., 486, 554 ; 4 Kent, Com., 179, 180 ; Daniels v. David- 
 son, 16 Ves., 249; Taylor v. Stibbert, 2 Ves. Jr., 440; HaU v. Smith, 14 
 Ves., 426; Crofton v. Ormsby, 2 Sch, & Lefr., 595; Eply v. AVitherow, 7 
 Watts, 163 ; Jacques v. Weeks, 7 Watts, 261 ; Buttrick v. Holden, 13 Met.,
 
 156 NOTICE BY POSSESSION. 
 
 § 280. Cliaracter of Possession. — It is not always a 
 question of easy determination, whether the possession is 
 sufficiently distinct and unequivocal to give notice to sub- 
 sequent parties. It has, however, been held that where one 
 acre was purchased in a tract of twenty acres, and set with 
 willows, which the purchaser cut regularly every year, for 
 the purpose of carrying on his business of basket-making, 
 that such possession and acts of ownership, under a deed 
 which the purchaser had neglected to record, was sufficient 
 to give notice of his title to a purchaser at sheriff's sale, of 
 the twenty-acre tract of wliich his own acre originally 
 formed a part,^ 
 
 355; Sargeant v. Ingersoll, 7 Pa. St., 340; Smith v. Gibson, 15 Minn., 
 89; Bogue v. Williams, 48 lU., 371; O'Rom-ke v. O'Connor, 39 Cal., 442; 
 Moss V. Atkinson, 44 Cal., 3; Rogers v. Jones, 8 N. H., 264; Hull v. No- 
 ble, 40 Me., 459; Mullins v. Wimberly, 50 Tex., 457; Strickland v. Kirk, 
 51 Miss., 795; Brown v. VoLkenning, 64 N. Y., 76; Van Kem-en v. Cent. 
 R. R., 38 N. J. L., 165; Tunnison v. Chamblin, 88 111., 378; WaiTen v. 
 Sweet, 31 N. H., 332; Littleton v. Giddings, 47 Tex., 109; Shepai-dson v. 
 Stevens, 71 111., 646; Maul v. Rider, 59 Pa. St., 167; Baker v. Bliss, 3i) 
 N. Y.. 70; Stearns v. Gage, 79 N. Y., 103; Buck v. Paine, 50 Miss., 048; 
 Holmes r. Powell, 8 De G., M. & G., 572. 
 
 1 Ki-ider v. Lafferty, 1 Wliart., 303. See Hatch v. Bigelow, 39 111., 546, 
 infra, § 288 et seq. 
 
 In Unger v. Mooney, 63 Cal., 586, the question was as to the notoriety 
 of the adverse possession of defendant as jsurchaser of the entire tract 
 from one of two tenants in common being sufficient to give notice to 
 liis co-tenant that the holding Avas hostile to the latter's claim. It was 
 decided that the execution and delivery of the deed by the co-tenant 
 w^as an ouster or disseizin, and that the subsequent occuijation by the 
 grantee, for the statutory period, paying the taxes and collecting the 
 rents and profits without accounting to the plaintiff, was sufficient 
 notice to Mm to bring the case witliin the rule governing adverse pos- 
 session that requires it to be open and notorious. See, also, Thompson 
 V. Pioche, 44 Cal., 508; Trustees, etc., v. Kirk, 84 N. Y., 220; Culver v. 
 Rhodes, 87 N. Y., 354; Abell v. Harris, 11 GiU & J., 371 ; Portis v. Hill, 
 3 Tex., 278; Grim v. Curley, 43 Cal., 250; Miller v. Myles, 46 Cal., 535; 
 Prescott V. Nevens, 4 Mason, 330; Clarke v. Courtney, 5 Peters, 310; 
 Clymer's Lessee v. Dawkins, 3 How. , 690 ; Culler v. Motzer, 13 Serg. & 
 R., 358; Home v. HoweU, 46 Ga., 9; Long v. Stapp, 49 Mo., 508; Smith 
 V. Yule, 31 Cal., 180; Pell v. McEhroy, 36 Cal., 368.
 
 NOTICE BY POSSESSION, 157 
 
 § 281. Possession by Teuaut. — As to wlietlier a pur- 
 cliaser may be aiTectecl with notice of a claim or title ad- 
 verse to his grantor, by possession, when the owner of such 
 adverse title is not in actual occupancy of the ])remises in 
 question, the authorities in this country seem to be in con- 
 flict. In England the weight of authority inclines upon 
 the side of restricting the operation of such possession to 
 notice of the title of the actual occupant. The possession 
 of a tenant under a lease is notice simply of his tenancy, 
 and not of his landlord's title.^ 
 
 § 282. Notice of Interest Claimed hj Occupant. — In 
 Beatie v. Butler,^ it is held that possession by the tenant of 
 a mortgagor was not notice of an agreement between the 
 mortgagor and mortgagee, that the latter should not de- 
 mand of the former a strict compliance with the terms of 
 his mortgage; but the same conclusion must have been 
 reached had the mortgagor himself been in possession. 
 The court, in deciding the case of Flagg v. Mann,* also in- 
 clines to follow the English rule restricting possession in its 
 
 'Barnhart v. Greenshields, 28 Eng. L. & Eq., 77; 2 Sug. on Vend., 
 g^ 763, 763; Smith v. Dall, 13 Cal., 510; Jones v. Smith, 1 Ha., 43; Ox- 
 with V. Plummer, 2 Vern., 636. But see infra, §§ 281r-6 ; Daubenspeck v. 
 Piatt, 22 Cal. , 330. But the ijurchaser is bound by all the equities sub- 
 sisting between the tenant and the vendor, whether it be an interest 
 connected with his tenancy or one claimed under a collateral agi'eement. 
 McMechan v. Griffing, 3 Pick., 149; Disbrow v. Jones, Han-ing. Ch., 
 48; Knight v. Bowyer, 2 D. & J., 450; Allen v. Anthony, 1 Meriv., 282; 
 PoweU V. Dillon, 2 Ba. & Be., 416. Contra, Kendall v. Lawrence, 22 
 Pick., 540; Bush v. Golden, 17 Conn., 594; Wilhams v. Sprigg, 6 Ohio 
 St., 585; Matthews u. DemeiTitt, 22 Me., 312; Dawson v. Danbury Bank, 
 15 Mich., 489. Where a lessee in possession makes a contract to pur- 
 chase, Ms possession has been held to be notice of his rights as purchaser. 
 Taylor v. Stibbert, 2 Ves., 437; Wilbraham v. Livesey, 18 Beav., 206. 
 But see Hanbury v. Litchfield, 2 My. & K., 629, 
 
 2 21 Mo., 313. 
 
 3 2 Sumn., 557; Daniels v. Davison, 16 Ves., 249 (§ 279, n. 2); Allen 
 V. AjQthony, 1 Meriv., 282; Meux v. Maltby, 2 Sw., 281; Powell v. Dil- 
 lon, 2 Ball & B., 416; Lewis v. Bond, 18 Beav., 85; Moreland v. Rich- 
 ardson, 24 id., 33; Hanbury v. Litchfield, 3 My. & K., 629; Jones v. 
 Smith, 1 Hare, 43.
 
 158 NOTICE BY POSSESSION. 
 
 effect as notice, to the interest claimed by the actual occu- 
 pant. 
 § 283. Notice of Interest of Occupant's Creditors. — 
 
 ■Whore a fraudulent conveyance was made, and the grantor 
 remained in possession by his tenants, it was held, in a con- 
 test between the creditors of the fraudulent grantor and 
 the purchasers at an execution sale of the land as the prop- 
 erty of the fraudulent grantee, that such possession was 
 notice of the title which still remained in the grantor, sub- 
 ject to his creditors' claims.^ 
 
 § 284. Tenant's Occupancy, Notice of Landlord's Title. 
 So where the land was located in a new and heavily tim- 
 bered country, and was left by the equitable owners in 
 charge of a tenant, who cut timber from the land, and exer- 
 cised such other acts with respect to the premises as left 
 the impression in the neighborhood that the land belonged 
 to the absent landlord, it was held that this was sufficient 
 notice to any one subsequentl}'" dealing with the title to put 
 him upon inquiry .^ 
 
 §285. Same. — It was also held in "Wright -y. "Wood,^ 
 where the plaintiff claimed under a deed from the heirs of 
 the former owner, and the defendant under an unrecorded 
 deed from the ancestor, that the possession of one, either 
 in person or by his tenant, was notice of an unrecorded 
 title ; but it was also held that the possession of a mere 
 intruder was not notice of the title of a stranger. 
 
 § 286. Consistency of Foregoing Doctrine. — There 
 seems no good reason why, if it be admitted tliat possession 
 is notice, or evidence of notice, there should be any modifi- 
 cation of the rule that possession by the tenant is the pos- 
 
 iHood V. Fahnestock, 1 Pa. St., 470. 
 
 2 Wickes V. Lake, 25 Wis., 71 ; Dickey v. Lyon, 19 la., 544; Pittman v. 
 Gaty, 10 111., 186; Met. Bank v. Godfrey, 23 lU., 579. Contra (Eng.), 3 
 Leading Cases in Equity (4tli Am. ed.), p. 133; Jones v. Smith, 1 Hare, 
 43; Barnhart v. Greenshields, 9 Moore, P. C, 18; Hanbury v. Litclifield, 
 2 M. & K., 629; Flagg v. Mann, 2 Sumn,, 486; Beatie v. Butler, 21 Mo., 
 312; Veazie v. Parker, 23Me.,170; Jacques v. Weeks, 7 Watts, 261. 
 
 3 23 Pa. St., 120.
 
 NOTICE BY POSSESSION. 159 
 
 session of his landlord. If tlie purchaser has followed up 
 the suggestion which the possession of the premises by a 
 third party implies, he will inquire of the actual occupant, 
 with a probabiUty of learning that he holds as lessee of an- 
 other. Inquiry cannot safely stop here ; for the next step 
 suggested .by the circumstances would be to inquire of the 
 landlord. But should the lessee refuse to disclose the name 
 of his lessor, or falsely lay claim to the fee, it can hardly 
 be required of the purchaser to look further. Having in- 
 quired of the person to whom aU. the circumstances point 
 as best qualified to impart information concerning the title 
 of which possession is the sole emblem, he may safely rely 
 upon the information thus acquired as absolutely true. 
 The jDossession by which the landlord holds through a tenant 
 may be said to be constTuctive^ and, for some purposes, mil 
 be distinguished from actual possession, and in this respect 
 there is a seeming conflict between the cases that give effect 
 to the tenant's possession as notice of the landlord's rights, 
 and those which Lay down the rule that possession must be 
 actual.^ But the conflict is only apparent where the courts 
 are inclined to disregard terms when their use creates dis- 
 tinctions which are of no value in determining rights. For 
 all the purposes of notice, the possession of the tenant may 
 fairl}^ be regarded as the actual possession of tlie landlord. 
 It is suflB.cient to put the purchaser upon inquiry, and, in the 
 absence of evidence to the contrary, it "uill be presumed 
 that inquiry of the tenant will lead to knowledge of the 
 truth.2 
 
 § 287. Possession No Evidence of Title in Stranger. — 
 Where, however, at the time of the pm-chase there is one 
 
 1 Infra, § 288 et seq. 
 
 2 Edwards v. Thompson, 71 N. C, 177; Cunningham v. Pattee, 99 
 ]\Iass., 248; O'Eourke v. O'Connor, 39 Cal., 442; Thompson v. liiche, 44 
 Cal., 508; Kerr v. Day, 14 Pa. St., 112; Nelson v. Wade, 21 la., 49; 
 Dicky V. Lyon, 19 la. , 544 ; supra, % 284. See, also, Feilden v. Slater, L. 
 R., 7 Eq., 523; Parker v. Whyte, 1 H. & M., 167; Wilson v. Hart, L. R., 
 1 Ch., 463; Clements v. WeUes, L. R., 1 Eq., 200; Crofton v. Ormsby, 3 
 Sch. & Lef., 583.
 
 160 NOTICE BY POSSESSION. 
 
 in possession, -n-lio not only holds adversely to tlie grantor, 
 but to the equitable owner, or grantee under an unrecorded 
 instrument, in a subsequent contest concerning the title, 
 this possession can only be availed of as notice by such pos- 
 sessor and those in whose right he pretends to hold. It 
 could not be used either as notice or evidence of notice of 
 any title or interest claimed by a stranger ; for the inquiry 
 which it might be presumed to excite would not in the 
 natm-al course of events develop such stranger's title.^ 
 
 § 288. Must be Actual, Notorious and Continuous. — 
 Subject to the doctrine that possession may be held by the 
 owner of the fee through his tenant or lessee, it is held that 
 the possession upon which the claimant relies as giving no- 
 tice of his rights must be actual, open and notorious, and, 
 so far as is consistent with the uses for which the pro]3erty 
 is occupied, continuous? It is not to be understood, how- 
 ever, when the one in possession resides upon the land, that 
 his temporary absence from home will aif ect to any extent 
 whatever, the character of his possession. JS'or, upon the 
 other hand, that his personal presence thereon at stated 
 intervals, when such presence is transitory, and entirely dis- 
 connected with any use of the land, would be such posses- 
 sion as would charge purchasers or incumbrancers with 
 notice of his title.'^ 
 
 1 Wright V. Wood, 23 Pa. St., 120. 
 
 2 Brown v. Volkemiing, 64 N. Y., 76; Kendall v. Lawi-ence, 23 Pick., 
 540; Truesdale v. Ford, 37 111., 210; Blankensbip v. Douglass, 26 Tex., 
 225 ; Ely v. Wilcox, 20 Wis., 523 ; Patten v. Moore, 32 N. H., 382 ; Havens 
 V. Dale, 18 Cal., 359; Eogers v. Jones, 8 N. H., 264; WiUiams v. Sprigg, 
 C Ohio St., 585; Holmes v. Stout, 10 N. J. Eq., 492; Coleman v. Bark- 
 lew, 27 N. J. Law, 357 ; Wickes v. Lake, 25 Wis., 71 ; Troy City Bank v. 
 Wilcox, 24 id., 071. 
 
 3 Kendall v. Lawrence, 22 Pick., 540; Holmes v. PowcU, 8 De G., M. & 
 G., 572; Noycs v. Hall, 7 Otto, 34; Cabeen v. Breckenridge, 48 111., 91; 
 Dunlap V. Wilson, 32 id., 517; Bradley v. Snyder, 14 id., 263; Tankard 
 v. Tanlvai-d, 79 N. C, 54; Bogaie v. Williams, 48 lU., 371 ; Martin v. Jack- 
 son, 3 Casey, 504 ; Meehan v. Williams, 12 Wright, 238 ; McMechan v. 
 Griffing, 3 Pick., 149. See, also, MUes v. Langley, 1 Russ. & M., 39; 2 
 id., 626; Jones v. Smith, 1 Hare, 43; Boggs v. Varner, 6 W. & Serg., 
 469; Hewes v. Wiswell, 8 Me., 94.
 
 KOTICE BY POSSESSION. 161 
 
 § 289. Occupancy by Chiircli Society. — But where there 
 had been a parol conveyance to a church society, of a por- 
 tion of a tract of land, which conveyance was followed by 
 the erection of a building suitable for public worship, and 
 was so used by the society, this was held as sufficient notice 
 to a subsequent purchaser of the original tract, including 
 the church lot, that the society had an interest in such prop- 
 erty.^ 
 
 § 2 90. Exclusive. — Another essential feature of the 
 possession which is set up as notice to a subsequent pur- 
 chaser is that it must be exclusive, at least so far as such 
 subsequent purchasers grantor is concerned.- Accordingly , 
 where a father conveyed to his son, upon certain conditions, 
 an undivided one-third of a farm, which was at the time 
 occupied by them as tenants in common, and the son re- 
 moved from the farm during the life-time of the father, who 
 remained in sole possession, it was held that the possession 
 of the father would not be notice to parties to whom the 
 son subsequently mortgaged his interest, unless notice could 
 be brought home to the mortgagees, at the time such mort- 
 gage was given, not only of the father's possession, but that 
 it was held adversely to his co-tenant.'^ This was so held 
 upon the familiar principle that the possession of real estate 
 by one of several tenants in common will not be construed 
 as adverse to his co-tenants, for the reason that such posses- 
 sion is perfectly consistent with the extent of his own inter- 
 est in the land. To render his occupancy adverse to those 
 who have an undivided interest in the premises, there must 
 be positive and overt acts connected with his exercise of 
 ownership such as will manifest an unmistakable intention 
 on his part to exclude his co-tenants from the enjoyment of 
 the property ; otherwise his possession will be regarded not 
 
 1 Macon v. Sheppard, 2 Humph., 335. 
 
 2KendaU v. Lawi-ence, 22 Pick., 540; Smith v. Yule, 31 Cal., 180; 
 Bell V. TwiUght, 23 N. H., 500; Wright v. Wood, 11 Hairis, 120, 130-31. 
 3Buckmaster v. Needham, 22 Vt., 617. 
 11
 
 1G2 NOTICE BY POSSESSION. 
 
 only as a declaration of his own proprietary rights, but 
 those of his co-tenants as well.^ 
 
 § 291. Unequivocal. — So the possession must be unequiv- 
 ocal and easily distinguished from that of the grantor or 
 any one else. It is not enough, where one has purchased 
 adjoining -woodland, that he repairs the fences, removes di- 
 lapidated buildings, clears off rubbish and depastures his 
 cattle upon the newly acquired land. These acts are too 
 disconnected in their character to serve as notice of title. 
 It would be improbable that a stranger, by looldng at the 
 land before purchasing, would gain such a knowledge of 
 these detached acts of ownership as to put him upon in- 
 quiry as to why one Avho, so far as appeared by the record, 
 was a stranger to the title, should be exercising this control 
 over the property.- 
 
 § 292. Doubtful in Extent. — So where a party had an 
 equitable title to one-half of a tract of land, which was to 
 be divided by a line drawn through the tract dividing it 
 into equal portions, different from the division made by the 
 government survey, but there was no proof that such line 
 was ever run between the two portions, and there were no 
 monuments indicating the boundaries between the two por- 
 tions, and no proof of actual occupancy or cultivation up 
 to such imaginary line, it was held, in a contest between 
 such equitable owner and an innocent purchaser of the op- 
 posite half of the tract as designated by the description in 
 the government sm-vey, that possession of the portion 
 claimed by the equitable owner could not operate as notice 
 of his claim of title beyond the government section lines.^ 
 
 § 293. Same. — So, also, where one bought by parol a 
 corner of the tract of land occupied by his grantor, paid 
 
 1 Brown v. Volkenning, 64 N. Y., 76 ; Wickes v. Lake, 25 Wis., 71 ; Troy 
 City Bank v. WUcox, 24 Wis., 671; Martin v. Jackson, 27 Pa. St., 504; 
 Patten v. Moore, 33 N. H., 382; Holmes v. Stout, 3 Green's Cli., 492. 
 
 ^McMechan v. GrifSng, 3 Pick., 149; Brown v. Volkenning, 64 N. Y., 
 76; Hewes v. Wiswell, 8 Me., 94. 
 
 3 Hani-ick v. Tliompson, 9 Ala., 409.
 
 NOTICE BY POSSESSION. 103 
 
 the purchase price, went into possession, and erected build- 
 ings thereon, but without making any survey or setting up 
 any monuments to designate the boundary line between 
 the tracts, and the buildings upon the portion reserved by 
 the grantor had the appearance of forming a part of one 
 and the same establishment with those erected by the pur- 
 chaser, it was held that such parol purchaser, having ample 
 opportunity to protect his interest by giving express notice, 
 and failing to do so, could not avail himself of such uncer- 
 tain and equivocal possession, to charge innocent purchasers 
 at a sale under execution against his grantor, with notice of 
 his equity.^ But paving the sidewalk in front of the prem- 
 ises, and putting up a placard offering the lot for sale, was 
 held sufficient notice of title.^ 
 
 § 294. Possession, and Right Claimed Conteinporane- 
 ons. — It is also essential that the possession which is to 
 operate as notice of title shall be contemporaneous with the 
 existence of the right or title it is relied upon to establish, 
 and prior to the subsequent purchase. Therefore, it was 
 held in an action of ejectment, that although the defendant 
 was in actual, open, undisputed and exclusive possession of 
 the premises in question, holding under a quitclaim deed at 
 the time the same was conveyed to plaintiff, such possession 
 was only notice of such title or interest as he then had. 
 And it appearing that the grantor under whom he claimed 
 at that time had never been seized of the property, a deed 
 of which plaintiff had no notice, made to defendant after 
 he had quit the possession, being unrecorded, the previous 
 possession would not affect the subsequent purchaser with 
 notice of his after-acquired title.* 
 
 1 Billington v. Welsh, 5 Binn., 129. 
 
 -'Hatch V. Bigelow, 39 111., 564. 
 
 3 Rupert V. Mark, 15 111., 540; New York Life Ins. Co. v. Cutler, 3 
 Sandf. Ch., 176; Oxwith v. Plummer, 2 Vern., 636; Barnhart v. Green- 
 shields, 9 Moo. P. C, 18; Scott v. Gallagher, 14 Serg. & R., 333. See Kerr 
 V. Day, 2 Hai-ris, 112 ; Wood v. Farmere, 7 Watts, 382 ; Matthews v. De- 
 nieritt, 22 Me., 312; McKeckine v. Hoskins, 23 id., 230; Rogers v. Jones, 
 8 N. H., 264; Daubenspeck v. Piatt, 22 Cal., 330. Contra, McMechan v.
 
 1G4 NOnCE UY POSSESSION. 
 
 § 295. Instance of Exception to the Rule. — Where A. 
 claimed title to a parcel of land by successive conveyances 
 under an unrecorded deed, and went into possession, and B., 
 a rival claimant, traced Lis title througli a prior deed wliicli 
 was also unrecorded at the date of the deed to A., it was 
 held that under a statute giving priority to the deed first 
 recorded after the lapse of six months, the grantee of B., 
 who took during A.'s possession, was not thereby affected 
 with notice of any superior equity in A., and upon being 
 beforehand with him in getting his deed first filed for 
 record, Avould have both the legal and equitable estates.^ 
 
 §296. Effect of Abandoning Possession. — In cases 
 where the possession relied upon as notice to the subsequent 
 purchaser, or evidence of such notice, was prior to the ac- 
 quisition of title by him, and at the date of his deed had 
 been abandoned or surrendered, it will not have the effect 
 of imposing upon such subsequent party the duty of making 
 inquiry as to the character of such occupancy.- In fact, if 
 the possession of real estate may fairly be regarded as no- 
 tice of a claim of title, the surrender of such possession by 
 a parity of reason should be looked upon as an abandon- 
 ment of the claun. Therefore, the mere circumstance of 
 a former adverse possession by one with no apparent title, 
 cannot in any event have the slightest weight in charging 
 a subsequent purchaser with notice of any equities in favor 
 of the possessor.^ 
 
 §297. Possession Referred to Record Title. — Circum 
 stances may arise where one having title to real estate, and 
 being in possession under his title, may nevertheless be pre- 
 vented from relying upon such possession as notice to subse- 
 
 GriflSng, 3 Pick., 149; Kendall v. La\vi-ence, 23 id., 540; Bush v. Golder, 
 17 Conn., 594; Williams v. Sprigg, 6 Ohio St., 585; Dawson v. Danbuij- 
 Bank, 15 Mich., 489; Meehan v. Williams, 48 Pa. St., 238; Boggs v. Vai- 
 ner, 6 Watts & S., 469; Hewes v. WisweU, 8 Me., 94; Wright v. WocC. 
 23 Pa. St., 120. 
 
 1 Lightner v. Mooney, 10 Watts, 407. 
 
 2Ehle V. BrowTi, 31 AVis., 405. 
 
 8 Campbell v. Brackenridge, 8 Blackf., 471.
 
 NOTICE BY POSSESSION. 165 
 
 qiient parties. As, for example, where in addition to the 
 title under which the proprietor occupies the premises, and 
 which either rests in parol or is unrecorded, the record also 
 shows a title under which he would be entitled to posses- 
 sion. In such a case his possession will be referred to his 
 record title in preference to an}^ other, and the purchaser 
 will not be affected with notice of any undisclosed title or 
 interest which the possessor may have. Thus, where a 
 mortgagee is in possession under a recorded mortgage, a 
 purchaser from the mortgagor will not be by such posses- 
 sion charged with notice of an unrecorded conveyance of 
 the equity of redemption from the mortgagor to the mort- 
 gagee, unless by the terms of the recorded instrument the 
 mortgagor was entitled to possession at the time of the last 
 purchase.' 
 
 § 298. Same. — This exception is obviously just and rea- 
 sonable. When a party places upon record an instru- 
 ment, the provisions of which are consistent with his 
 possession of the premises, while the circumstance of his 
 being in possession undoubtedly has a tendency to excite in- 
 quiry in the minds of those contemplating a purchase, the 
 fact that he has placed the evidence of his right to occupy 
 upon record, where it is accessible to the whole world, ar- 
 rests inquiry at that point, and plainly informs the purchaser 
 that he may rest securely upon the knowledge ah-eadj^ ob- 
 tained.^ 
 
 § 299. Claim Inconsistent with Record Title. — So the 
 possessor may b}'^ his own act, in putting upon the record an 
 instrument inconsistent with title in himself, or by execut- 
 ing and delivering such a recordable instrument, be estopped 
 
 iPlumer v. Robertson, 6 Serg. & R, 179; Palmer v. Bates, 23 Jlinn., 
 532; Great Falls Co, v. Worster, 15 N. H., 412; Woods v. Farniere, 7 
 Watts, 382; Corpman v. Baccastow, 84 Pa. St., 363; Smith v. Yule, 31 
 Cal., 180; Wliite r. Wakefield, 7 Sim., 401; Eice v. Rice, 3 Drew, 73; 
 Muir V. Jolly, 26 Beav., 143; Staples v. Fenton, 5 Him, 172; Bell v. 
 Twilight, 23 N. H., 500; Crassen v. Swoveland, 23 Ind., 427; Newhall v. 
 Pierce, 5 Pick., 450. 
 
 2 Woods V. Farmere, 7 Watts, 385.
 
 1G6 . NOTICE BY POSSESSION. 
 
 from reiving upon bis possession as evidence to subsequent 
 purchasers that he claims title to the premises.' In the case 
 cited, defendant had conveyed the land in question to one 
 in whom he placed confidence, subject to a secret trust. 
 The deed of conveyance was absolute on. its face and was 
 duly recorded. Eelying upon the record, plaintiff purchased 
 the premises from the apparent grantee for value, who in 
 making the sale was guilty of a breach of trust. But the 
 plaintiff took without knowledge or notice of the trust, 
 although the defendant, after making the conveyance, 
 remained in possession and ojDenly exercised acts of owner- 
 ship over the property.- 
 
 § 300. Notice of Reservation of Easement. — A well 
 recognized exception to the above doctrine is where posses- 
 sion is relied upon as notice or evidence of notice of a parol 
 reservation of an easement, upon a conveyance of the legal 
 title to the premises, when such easement is essential to the 
 enjoyment of adjacent premises, the title to which remains 
 in the grantor and possessor of such easement. As Avhere 
 there were two pieces of land lying adjacent to each other, 
 with different owners, upon one of which there was a mill, 
 and upon the other a race which was appurtenant to the 
 mill. The owner of the mill propert}^ held, by a prior parol 
 reservation, a right to the use of the race on the adjacent 
 property, and upon his subsequent acquisition of the legal 
 title to both tracts, and his conveyance by deed with cove- 
 
 1 Scott V. Gallagher, 14 Serg. & R„ 333. 
 
 2 See, also, Newhall v. Pierce, 5 Pick., 450; New York Life Ins. Co. v. 
 Cutler, 3 Sandf. Ch., 176; Van Keuren v. Central R. R. Co. of New Jer- 
 sey, 38 N. J. L., 165; ^\Tiite v. Wakefield, 7 Sim., 401; Rice v. Rice, 3 
 Drew, 1; Muir r. Jolly, 26 Beav., 143; Bloomer r. Henderson, 8 Mich., 
 395; Scott t;. Gallagher, 14 S. & R., 333; Dawson f. Danbm y Bank, 15 
 Mich., 489 ; Cook v. Travis, 20 N. Y., 400 ; Reed v. Gaimon, 50 N. Y., 345. 
 Contra, 111. Cent. R. Co. v. McCullough, 59 Dl., 166; MetropoHtan Bank 
 V. Godfrey, 23 lU., 579; PeU v. McEh'oy, 36 Cal., 268; Wright v. Bates, 
 13 Vt., 341 ; Grimstone v. Carter, 3 Paige, 421 ; Hopkins v. Ganard, 7 B. 
 Mon., 312; Webster v. Maddox, 6 Me., 256; McKeckine f. Hoskins, 23 
 Me., 230; Jacques v. Weeks, 7 Watts, 261; Bm-ton v. Shotwell, 6 Cent. 
 L. J., 31 (Ky.).
 
 NOTICE BY POSSESSION. 167 
 
 nants of seizin, without mention of the easement, of the 
 tract upon which the water privilege was claimed, it was 
 held that the continued possession and use of this privilege, 
 both before and after his obtaining title to the property, 
 was suflBcient notice of the original reservation to put his 
 grantee upon inquiry.' In dehvering the opinion in this 
 case, Mr. Chief Justice Gibson makes a distinction between 
 the facts and those in the prior case of "Woods v. Farmere.^ 
 There it was decided in substance that an owner of distinct 
 titles, who gives record notice of one of them, abandons, as 
 to purchasers, the other, of which possession would other- 
 wise be implied notice. " That, however," says the learned 
 judge, " is not this case ; for Isaac Silverthorn had but one 
 title to the water-right, and held out neither notice nor pre- 
 tense of any other." Without presuming to question the 
 justice of this decision it is difficult to avoid the conclusion 
 that it is exceptional to the rule announced in Woods v. 
 Farmere, for the reason that the possession of the water- 
 right was clearly consistent with the defendant's ownership 
 of the fee as it appeared by his recorded deed. But whether 
 under the circumstances of the case his conve3'ance to 
 plaintiff was inconsistent with a continuance of such right 
 is another matter. 
 
 § 301. Exception to Rule Requiring Consistency.— 
 Another exception allowed in favor of the validity of no- 
 tice of title by possession, of one who has executed and 
 delivered an instrument inconsistent with the title claimed, 
 which was placed upon record, was where the deed from 
 the tenant in possession merely gave his grantee instan- 
 taneous seizin, which was utterly divested by the contempora- 
 neous reconveyance to his grantor and two sons.^ Here it 
 was held as against an attaching creditor of the first grantee, 
 that the possession of the tenants was sufficient to put cred- 
 itors on inquiry, notwithstanding the deed of such grantee 
 
 lEandall v. SUverthorn, 4 Pa. St., 173. 
 
 •-'7 Watts, 385; ante, §298. 
 
 ^i Webster v. Maddox, 6 Me., 256.
 
 168 NOTICE BY POSSESSION. 
 
 was first recorded, and the attachment was levied, and exe- 
 cution issued on the judgment was duly extended and re- 
 corded diu'ing the intermediate time between the recording 
 of the two deeds ; and there was no visible change of pos- 
 session, the sons residing upon the premises as members of 
 their lather s family, as they had done before. Froih the 
 report of this case it appears that the attachment was levied 
 so soon after the recording of the deed to the debtor, that 
 it is not probable that the credit from which the debt 
 arose was obtained upon the faith of the record title. The 
 pm'pose of the transaction stands plainly revealed as a cir- 
 cuitous conveyance, by the father to the sons, of an interest 
 in the land, and the first grantee was employed as a mere 
 conduit for the title. The facts of this case may be suffi- 
 cient to reconcile one to an exception to what ma}'' itself 
 be regarded as an exception to the doctrine of notice by 
 registration; but were the facts of a case the same, ex- 
 cept that an innocent purchaser occupied the position of 
 the attaching creditor in this case, the transitory natm^e of 
 the title vested in the grantee whose deed was recorded 
 would be no protection to tlie grantor's possession. 
 
 § 302. Possession to Begin with Unrecorded Title. — 
 It has also been decided, Avhere possession by one's les- 
 sees or tenants was regarded as sufficient, that their ten- 
 ancy must commence after the acquisition of the title evi- 
 denced by such possession. In other words, where, at the 
 time of the sale, the grantor was in possession by his ten- 
 ants, who afterwards attorned to the grantee, the grantor's 
 deed being um^ecorded, this was held insufficient to charge 
 even an attaching creditor of the grantor with notice of 
 such unregistered conve3^ance.^ 
 
 § 303. Possession as Lessee Changed to Possession as 
 Owner. — So where one who held possession as lessee, and 
 after the expiration of the term remained a tenant at suf- 
 ferance for a short time and then purchased the fee, it was 
 decided that such possession would be referred to the origi- 
 
 iLoughridge v. Bowland, 53 Miss., 546.
 
 NOTICE BY POSSESSION. 169 
 
 nal tenancy under which it commencedj and would not 
 stand for notice of the title under which she held at the 
 date of the subsequent purchase.^ 
 
 §301. The Rule in Mississippi. — These cases seem to 
 settle the law upon this question for the state of Mississippi, 
 upon a theory peculiar to that jurisdiction. Drawing the 
 inference of notice of title from the fact of possession by 
 the claimant is there reg'arded as resting; with the neiffh- 
 borhood, or with the subsequent party to the title, instead 
 of with the court or jury. Elsewhere, possession derives 
 its force as a circumstance tending to fix notice of a prior 
 equity or um^egistered conveyance upon subsequent parties, 
 from the fact that it is sufficient to put them upon inquiry, 
 and for a failure to inquire mala fides is imputed to them. 
 Here it seems requisite, not only that the subsequent party 
 must have notice of the possession, but his mind must be 
 free from doubt as to the character of such possession before 
 he inquires. Other courts decide that the notice inferred 
 from possession shall be of such title as the possessor had 
 at the time of the subsequent purchase, limiting the appli- 
 cation of the principle to cases where the tenant in posses- 
 sion has not estopped himself from relying upon his 
 possession as notice, by placing upon record a title incon- 
 sistent with that claimed, or a different title which is per- 
 fectly consistent with his possession. In the latter event, 
 his possession will be referred to his record title. These 
 cases, however, decide that possession by a purchaser after 
 his term expires will be referred to his original lease which 
 is not a matter of record. There seems to be a difference 
 of principle upon which these cases are decided from that 
 
 1 Claiborne v. Holmes, 51 Miss., 146; Kerr v. Day, 14 Pa. St., 112; 
 Cunningham -y. Pattee, 99. Mass., 248. But see Daniels v. Davison, 16 
 Ves., 249; Crofton v. Ormsby, 2 Sch. & Lef., 583; Wilbraham v. Live- 
 sey, 18 Beav., 206; Powell v. Dillon, 2 B. & B., 416; Hervey v. Smith, 
 22 Beav., 499; Moreland v. Richardson, id., 596. See, also. Miles v. 
 Langley, 1 R. & M., 39; Wliite v. Wakefield, 7 Sim., 401; Nelthorpe v. 
 Holgate, 1 CoU., 203; Oxwith v. Plummer, 2 Vern., 636.
 
 170 NOTICE BY POSSESSION. 
 
 governing those elsewhere determined, which we will not 
 attempt to reconcile.^ 
 
 § 305. Creditors Affected with Notice. — From authori- 
 ties abeady cited, as well as upon general princii)les, it is 
 quite clear that subsequent purchasers and incumbrancers 
 are not the only parties who may be affected by this species 
 of implied notice, but that it may be invoked against cred- 
 itors of the grantor.- 
 
 § 306. Possession of Chattels. — The doctrine that the 
 purchaser of chattels from one who has no possession thereof 
 at the time of his purchase takes the same with full notice 
 of all the rights of the one who has them in possession, is 
 so well established as not to require the citation of author- 
 ities in its support. Possession is much more universally 
 recognized as evidence of ownership in case of chattels 
 than where the title to real property is involved. The in- 
 ference follows naturally from the nature of the property 
 and the manner of transferring the title thereto. Not only 
 is possession notice of the interest of the possessor, but 
 from the fact that the title to movable things is usually 
 transmitted by manual delivery of the property, such pos- 
 session is i)rima facie evidence of absolute ownership.' 
 
 1 It is decided in a recent case that a son who occujjied certain prem- 
 ises, the title to wliich was in his fatlier, in subordination to his father's 
 title, and who continued such possession after his father's death, would 
 not be permitted to rest upon such possession, either before or after his 
 father's death, as notice to a subsequent purchaser from other heirs, of 
 a i^arol contract from his father to convey the i^roperty to him. Stone 
 V. Cook, 79111., 424. 
 
 2 Kent V. Plumer, 7 Me., 464; Webster v. Maddox, G Me., 256; NewhaU 
 V. Pierce, 5 Pick., 450; Massey v. Mcllwain, 2 Hill's Ch., 421; Macon v. 
 Sheppard, 2 Humph., 335; Hackwith v. Damron, 1 Mon., 235. 
 
 3 But see Chicago T. P. P. Co. v. Lowell, 60 Cal., 454.
 
 CHAPTEE Y. 
 
 NOTICE FROM TITLE PAPEES. 
 
 § 307. General Statement of the Doctrine. 
 
 308. Equivalent to Actual Notice. 
 
 309. Treated as Constructive Notice. 
 
 310. Modifications of the Rule. 
 
 311. Recitals in Original Patent. 
 313. Illustration. 
 
 313. Sufficient if Recitals Would Lead to Ejiowledge, 
 
 314. In Same Transaction. 
 
 315. Should be in Same Chain of Title. 
 
 316. Recitals Reasonably Certain. 
 
 317. Same. 
 
 318. Example of General Recital. 
 
 319. Uncertainty of Description. 
 
 320. Striking Peculiarities of Recital. 
 
 321. Recital in Will — In Lease. 
 
 322. Limitations Upon Effect of Recitals. 
 
 323. Recital of a Trust. • 
 
 324. May be by Variety of Instruments. 
 
 325. Recital in Mortgages. 
 320. Books of Record. 
 
 327. Conveyance by Statute. 
 
 328. Facts Which May be thus Brought Home to Purchaser. 
 
 329. Contract to Convey. 
 
 330. Vendor's Lien. 
 
 331. Wlio Affected. 
 
 332. Different Kinds of. Property. 
 
 333. Stocks Transferred by Executor. 
 
 334. Personal Property. 
 
 335. Inquiry Extends to Examination of Papers. 
 
 336. Deed of Real Estate Containing Bill of Chattels. 
 
 § 307. General Statement of the Doctrine. — The notice 
 to purchasers of interests in tlie subject of the purchase, 
 which is derived from the papers by Avhich the title is trans- 
 mitted, affected or incumbered, is for obvious reasons con- 
 fined almost exclusively to real estate. It is only in those
 
 172 NOTICE FROM TITLE PAPERS. 
 
 exceptional instances where pei-sonal propert}' passes by 
 written conveyances, or the title depends upon some instru- 
 ment of writing, that it will be subject to the same rule. 
 But it is not restricted to any particular class of papers. It 
 embraces all written evidences of title known to the law, 
 and, of all kinds of notice that may depend upon inference 
 or presumption, is perhaps the most generallv recognized.' 
 §308. Equivalent to Actual Notice. — As a matter of 
 fact, a purchaser of real estate may be totally ignoraiit of 
 the recitals in his own deed ; yet every recital of a fact 
 affecting the title to the premises, contained in such deed, 
 will be presumed to be known to such purchaser, and he 
 will be affected with notice thereof in the same manner and 
 to the same extent as though he had actual knowledge, 
 though the statute interposes the provision that those only 
 shall be charged who have actual notice.- Therefore it 
 
 1 Fryer. Partridge, 82 HI., 267; Chicago, etc., R. Co. v. Kennedy, 70 
 ni., 350; Rupert v. Mark, 15 HI., 540; Merrick v. Wallace, 19 lU., 486; 
 Morris r. Hogle, 37 111., 150; Morrison v. Kelley, 22 111., 610; Doyle v. 
 Teas, 5 HI., 202: McConneU r. Reed, 5 lU., 117; Wiseman v. Hutcliinson, 
 20 Ind., 40; Croskey r. Chapman, 26 Ind., 333; Corbitt v. Clenny, 52 Ala., 
 480 ; Burch v. Carter, 44 Ala., 115 ; Witter v. Dudley, 42 Ala., 616 ; Dudley 
 V. Witter, 46 Ala., 664; Campbell v. Roach, 45 Ala., 667; Newsome r. 
 Collins, 43 Ala., 656; Deason v. Taylor, 53 Miss., 697; AHen v. Poole, 54 
 Miss., 328; Wailes v. Cooper, 24 Miss., 208; Johnson v. Gwathmey, 4 
 Litt., 317; Mueller v. Engeln, 12 Bush, 441; Major v. Buckley, 51 Mo., 
 227; Ridgeway r. HoUiday, 59 Mo.. 444; Long v. WeUer, 29 Gratt., 347: 
 Wood V. Krebbs, 30 Gratt., 708: Bm-w ell's Ex'rs v. Fauber, 21 Gratt., 446; 
 Stidham v. Mathews, 29 Ark., 650; Fitzhugh r. Barnard, 12 :Mich., 105; 
 Case V. Erwin, 18 Mich.. 434; Priagle v. Dunn, 37 Wis., 449; Howard Ins. 
 Co. r. Halsey, 8 N. Y., 271; Frost iv Beekman, 1 Johns. Ch., 288;Gibert 
 V. Peteler, 38 N. Y., 165; Green v. Early, 39 Md., 223; Mun-eU r. Watsc^n. 
 1 Tenn. Ch., 342; Malpas v. Ackland, 3 Russ. (Eng.), 273; Rafferty r. 
 MaUory, 3 Biss., 362; Kerr v. Kitchen, 17 Pa. St., 433; Greenfield v. 
 Edwards, 2 De G., J. & S., 582; Da vies v. Tliomas, 2 Young & C. Exch., 
 234; Pilcher v. RawUns, L. R., 11 Eq., 53; 7 Ch., 259; Clements v. WeUs, 
 L. R., 1 Eq., 200: Robson v. FUght, 4 De G., J. «& S., 608; Bacon r. 
 Bacon, Tothill, 133; Bisco v. Earl of Banbury, 1 Ch. Cos., 287; Coppin 
 r. Fernyhough, 2 Brown, Ch., 291. 
 
 2 White V. Foster, 102 Mass., 375; George v. Kent, 7 AUen, 16; Worm- 
 ley V. Wormley, 8 Wheat., 421; Oliver v. Piatt, 8 How., 333; Christmas
 
 KOTICE FKOM TITLE PAPEES. ilO 
 
 may be said that notice derived from the recitals in the 
 deed to a pm*chaser is actual, though it clearly rests upon a 
 presumption of law. It may be called actual, however, in 
 the same sense that a written notice dehvered to a party 
 who never reads it may be called actual notice.^ 
 
 §309. Treated as Constructive Notice.^- The recitals 
 of one's unmediate deed beino; reg-arded as actual notice, it 
 woidd seem to follow that where such recitals referred to 
 other instruments, they would be suiRcient to put the pur- 
 chaser upon inquiiy with respect to the instruments referred 
 to, and thus make their recitals notice which might properly 
 be classed as actual. In most of the cases, however, when 
 it is sought to charge a purchaser with notice bv the re- 
 citals contained in instruments affecting the title other than 
 his own immediate deed, it is characterized in the books as 
 constructive notice. It would be more accm'ately designated 
 as presumptive notice? 
 
 § 3 1 0. Modifications of the Rule. — The doctrine embod- 
 ied in the general statement that a pm'chaser of realty takes 
 with notice of every adverse legal claim or outstanding 
 equity disclosed by the recitals contained in any of the 
 papers under or thi'ough which he traces his title, is of uni- 
 versal recognition, both in this country and Great Britain, 
 subject, however, to such refinements and modifications as 
 the peculiarities of adjudicated cases have from time to time 
 demanded.' 
 
 V. Jilitchell, 3 Ired. Eq., 535; Mason v. Paine, Walk. Ch., 453; Chew v. 
 Calvert, Walk., 54; Tanner v. Florence, 1 Ch. Cas., 259; Newsom v. 
 Clarkson, 2 Hare, 163. 
 
 ' Guion V. Knapp, 6 Paige, 35; Ken- v. Kitchen, 17 Pa. St., 433; Hack- 
 with V. Damron, 1 Mon., 235; Bellas v. Lloyd, 3 Watts, 401. 
 
 2 Ante, ch. I, pt. I. 
 
 •^Hackwith r. Damron, 1 Mom-., 235; Neale r. Hagtlu-op, 3 Bland, 551; 
 Hagthrop v. Hook, 1 Gill & J., 270; Baker v. Mather, 25 Mich., 51; Stid- 
 ham V. Matthews, 29 Ark., 650; Corbitt v. Clenny, 52 Ala., 480; Baze- 
 more v. Davis, 55 Ga., 504; Jumel v. Jumel, 7 Paige, 591: Briggs v. 
 Palmer, 20 Barb., 392; Hamilton r. Xutt, 34 Conn., 501; Dargin v. 
 Beeker, 10 Iowa, 571; Babcock v. Lisk, 57 111., 327; Pike v. Goodnow, 13
 
 1Y4 KOTICE FROM TITLE PAPERS. 
 
 § 311. Recitals in Original Patent. — So where the title 
 is derived from the general government by a patent, which 
 contains recitals affecting the title in the hands of a pur- 
 chaser, however remote from the original patentee, such 
 I'ccitals will affect the purchaser, although he was ignorant 
 both of the recitals and the facts recited when he acquired 
 the title.' 
 
 §312. Illustration. — An example of tliis rule and its 
 application to recitals in the original patent was where the 
 party entitled to a patent devised the property to his son 
 in tail, and in the event of his decease without issue, to de- 
 scend to another son. After the decease of the devisor the 
 devisee obtained a patent to the land, by which it was granted 
 to him m fee-simple^ reciting that the title was derived under 
 the will of the devisor. The land was conveyed by the 
 patentee in several parcels to dijfferent grantees in fee, and in 
 the deeds of bargain and sale he recited the patent under 
 which he held. After the land had passed by successive 
 conveyances to a grantee for value, in a contest between the 
 issue in tail and such subsequent pm"chaser, it was held, 
 though admittedly a hard case, that the purchasers were 
 affected by the recitals in the patent of the extent of the 
 estate devised in the will.^ 
 
 §313. Sufficient if Recitals Would Lead to Knowl- 
 edge. — It is not necessary, in order to constitute notice by 
 this means, that the recitals in the antecedent deed or other 
 instrument through which the title is traced shall contain a 
 detailed and expUcit reservation of the right or title claimed, 
 in such terms as would dispense with further proof. It will be 
 sufficient if the party cannot make out his title without such 
 
 Conn., 472; Sanborn v. Robinson, 54 N. H., 239; Brown v. Simons, 44 
 N. H., 475, See Hobnes v. Ferguson, 1 Or., 220; Graham v. Meeks, 1 
 Or., 325. 
 
 1 Bonner v. Ware, 10 Ohio, 465; Brush v. Ware, 15 Pet., 93; S. C, 1 
 M'Lean, 533 ; Reeder v. Barr, 4 Ohio, 446. 
 
 -Burkart v. Bucher, 2 Bin., 455; also Oliver v. Piatt, 3 How. (U. S.), 
 333, 409.
 
 NOTICE FROM TITLE PAPERS. 1T5 
 
 instrument, which by its recitals leads him to the fact of 
 which he is to be charged with notice. The reason alleged 
 for the rule is that the purchaser is entitled to see all the 
 muniments of title, and therefore must be presumed to have 
 seen them, and to have taken notice of all their recitals 
 which in any way affect his purchase, as the omission on 
 his part to take such precautions would amount to gross 
 neoii<rence.^ 
 
 § 314r. In Same Transaction. — It is decided, however, 
 in most of the early English cases above cited, that notice 
 to a purchaser b}^ his title papers in one transaction Avill not 
 be notice to him in an independent subsequent transaction, 
 in which the instruments containing the recitals are not 
 necessary to his title ; but that he is charged constructively 
 with notice, merely of that which affects the purchase of 
 the property in the chain of title of which the paper forms 
 a necessary link. So that, where one is purchasing a par- 
 ticular piece of real estate, and his title deeds recite a charge 
 upon, or equitable interest in, another piece in favor of a 
 third party, such recitals would not affect him with notice 
 of such charge or interest, in the event of his subsequent 
 purchase from the holder of the legal title to the other 
 property. He is not presumed to carry the knowledge thus 
 imputed to him in the first transaction in his memory until 
 the second purchase has been effected.^ 
 
 § 315. Should be in Same Cliain of Title. — This appli- 
 cation of the doctrine has also received the approbation of 
 
 1 Jolinson V. Tliweatt, 18 Ala., 741; Neale v. Hagthrop, 3 Bland, 551 
 Gordon v. Sizer, 39 Miss. , 805 ; Van Doren v. Robinson, 1 Green, 256 
 Rogers i;. Jones, 8 N. H., 264; GaiTett v. Puckett, 15 Ind., 485; Ross v. 
 Wortliington, 11 Minn., 438; Griffith v. Griffith, 1 Hoff. Ch., 153; Ham- 
 ilton V. Royse, 2 Sch. & Lef., 315; Mertms v. Johffe, Amb., 311 ; Taylor 
 V. Stibbert, 2 Ves. Jr., 437; Surman u. Barlow, 2 Edm., 167; Taylor v. 
 Baker, 5 Pri., 306; Moor v. Bennett, 2 Ch. Cas., 246; Palmer v. AVheeler, 
 3 B. & B., 31 ; Roddy v. Williams, 3 J. & L., 1 ; Steadman v. Poole, 16 
 L. J. Ch., 349; Hope v. LiddeU, 21 Beav., 183; Howard v. Chase, 104 
 Mass., 249. 
 
 2 See Hamilton v. Royse, 2 Sch. & Lef., 315, and cases cited.
 
 176 NOTICE FROM TITLE PAPERS. 
 
 tlie American courts, -when invoked to charge a purchaser 
 witli notice of an antecedent unrecorded instrument, or 
 equitable interest, in cases where the recitals offered in evi- 
 dence of notice were contained in the title papers to a dif- 
 ferent piece of property from that to whicli they referred.' 
 In the case cited, Judge Rooeus, in delivering the opinion 
 of the court, says in explanation of the reason for the hold- 
 ing: "The evidence would lead to dangerous consequences, 
 for it is impossible for any one to recollect the recitals in 
 deeds under which he may claim. Let this be held to be 
 admissible and competent to affect a subsequent purchaser 
 with notice, it would follow that no man can safely pur- 
 chase until a most careful examination and ins]3ection of 
 every deed to which he may be a party, and under which 
 he claims."^ 
 
 §316. Recitals Reasonably Certaiu. — As to the man- 
 ner in which the fact, of which the purchaser is presumed 
 to take notice, should be referred to in the instrument, noth- 
 ing more can be said in a general way than that it should 
 be reasonably certain and specific, the recitals containing 
 sufficient information to put a man of reasonable prudence 
 upon inquiry, leading to the truth. Mere vague allusions 
 ■^.o something which may or may not amount to an interest 
 in the property will not always suffice." 
 
 § 317. Same. — The rule as to certainty, however, as de- 
 duced from the authorities, can probably be exempUfied 
 
 1 Boggs V. Varner, 6 Watts & Serg., 469. 
 
 2 Id., 473. 
 
 SRidgewayr. HoUiday, 59 Mo., 444; Boggs v. Vai-ner, 6 Watts & Serg., 
 469; Kaine v. Denniston, 22 Pa. St., 203; French v. Loyal Co., 5 Leigh, 
 627 ; Smith v. Denton, 42 Iowa, 48 ; Watson v. Phelps, 40 Iowa, 482 ; 
 Munnu. Best, 63 Mo., 491; Kearney v. Vaughan, 50 Mo., 284; May v. 
 Le Claire, 11 Wall., 217; Bragg v. Paulk, 42 Me., 503; Bertram v. Cook, 
 32 Mich., 518; Edmonds v. Torrence, 48 Ala., 38; Stout v. Hyatt, 13 
 Kans., 232; Lewis v. Boskins, 27 iVi-k., 61; Peay v. Capps, 27 Ark., 160; 
 Conover r. Van Mater, 18 N. J. Eq., 481; McNary v. Southworth, 58 
 m., 473; White V. Carpenter, 2 Paige, 217; Bell v. Twilight, 22 N. H., 
 500. But see Chapman v. Sims, 53 Miss., 154; Corbin v. Sullivan, 47 
 Ind., 856; Hutcliinson v. Harttman, 15 Kans., 133.
 
 NOTICE FROM TITLE PAPEKS. lii 
 
 more satisfactorily by illustration from cases where the 
 uttermost limit of uncertainty has been reached. 
 
 § 318. Example of General Recital. — In Bellas v. 
 Lloyd/ the purchase made was by defendant from the 
 plaintiff and wife, of a lot upon which was situated a 
 chm-ch edifice. The deed of conveyance purported to con- 
 vey to defendant the property in question, " together with 
 all the rights, lil^erties, privileges, hereditaments and ap- 
 purtenances, in as full and ample a manner, and with all 
 the same rights and conditions, authorities and agreements, 
 with which the said H. B. (the plaintiff), and E., his wife, 
 now hold the said premises, as regards all or any assemblies 
 for divine worship." This was held sufficient to charge the 
 purchaser with notice of every subsisting agreement by 
 plaintiff with any religious body, for the use of the church 
 for divine worship. 
 
 § 319. Uncertainty of Description. — So where the tes- 
 tator, in the will under which the purchaser claimed, devised 
 to his son fifty acres out of the northwest corner of the 
 tract claimed by the purchaser, unless it had been selected 
 elsewhere, and never given up, this was held sufficient to 
 charge the purchaser with notice of the claim of the son 
 to fifty acres, because any person, on reading the will, would 
 be led to inquire whether the devisee had received his fifty 
 acres, and, if so, whether he had selected it elsewhere than 
 in the corner designated. The information contained in 
 the will was sufficient to put the purchaser upon inquiry, 
 because the will was a necessary link in his grantor's title,- 
 It will be noticed here that there were several features of 
 uncertainty involved in this devise. It was only to take 
 effect upon the particular portion of the tract described, in 
 the event that it had not been permanently selected else- 
 where. There was no time specified for the selection, nor 
 any particular fifty acres designated, and yet as this might 
 have been rendered sufficiently certain to protect a pur- 
 
 1 2 Watts, 401. 
 
 2McAteer v. McMullen, S Pa. St., 82. 
 13
 
 178 NOTICE FROM TITLE TAPEKS. 
 
 chaser who wouhl take the pains to inquire, the court-held it 
 suificient to impose the duty of inquiry upon purchasers 
 under the will, however remote. 
 
 §320. Srikiiig Peculiarities of Recital. — It has also 
 been decided, where there was a deed of release from one 
 of two partnei"S in business to himself and copartner, in 
 w^hich the consideration was expressed as follows: "One 
 dollar, received of C. S. & C. M., merchants in trade under 
 the firm name of C. & Co.," the land " to be held in such 
 proportion as is agreed on between them," that the striking 
 singularities of this instrument — it being a deed from the 
 releasor to himself and another, and describing the re- 
 leasees as partners, etc. — were sufficient to put the purchaser 
 upon inquiry as to whether or not it was partnership prop- 
 erty.' 
 
 §321. Recital in Will — In a Lease. — So where the 
 codicil of a will, through^ which the title was traced, recited 
 the fact that the plantation and tract of laud near to the 
 ])remises of a j\Ir. H. Avas the joint property of the testator 
 and another, the notice was held sufficiently certain, though 
 it did not state whether the land joined that of H. on the 
 north, south, east or west side.' There were pecuhar cir- 
 cumstances, however, tending to render this description 
 more certain than it appeared on its face ; for there was 
 but one piece of property owned by the testator at the 
 time of his decease, in that townsliip, or which answered to' 
 the description in the codicil in any other particular. It is 
 also held that, where the title papers recite the fact of the 
 existence of a lease, it takes eifcct as notice of the cove- 
 nants therein contained.* But the effect of notice of a lease 
 has been confined to the ordinary covenants therein.* 
 
 iSigonmey v. jMunn, 7 Conn., 324. 
 
 - Lodge V. Simonton, 2 Penn., 439. 
 
 8 Smith V. Capron, 7 Hare, 185; Tanner v. Florence, 1 Ch. Cas., 259; 
 Drysdale v. Mace, 2 Sm. & Gif., 225; Cesser v. Collinge, 3 My. & K., 
 282; Cox v. Coventon, 31 Beav., 378; Martin v. Cotter, 3 Jones & L., 
 496; Pope r. Garland, 4 Y. & C, 394. 
 
 ^ Flight V. Barton, 3 My. & K., 283; Van v. Corpe, 2 My. & K., 269; 
 Pope V. Garland, 4 Y. & C, 394.
 
 NOTICE FKOM TITLE PAPEKS. 179 
 
 § 322. Limitations Upon EiFect of Recitals.— On the 
 
 other hand, the effect of the recital as notice will be con- 
 fined to the fact recited, and such other facts as it directly 
 leads to. Thns, where a second mortgage referred to a 
 prior one in which it was recited that " part of the premises 
 above described are snbject to a lease and mortgage to D. 
 F. & Co., and a mortgage to S. F., B. F. and H. F., as by ref- 
 erence to the records will more fully appear," it was held 
 that this would only amount to notice of the conveyances 
 described, and if there were none such, would not be notice 
 of an unregistered conveyance to D. F. and wife.' 
 
 § 323. Recital of a Trust. — It was likewise held, in a 
 case Avhere there was a recital in a deed made for a consid- 
 eration merely nominal, that it was made in fulfillment of 
 a trust reposed in the grantor by the grantee, did not amount 
 to notice of any other trust than one in favor of the grantee.- 
 
 § 324. May be by Yariety of Instruments. — ]^otice 
 may be brought home to a subsequent purchaser b}^ the re- 
 citals in a great variety of instruments. As we have seen, 
 it may be by the contents of a will, where the title to the 
 property has been passed to the grantor by de^^se.'' So 
 where a testator devised a farm to his son, and gave to his 
 two daughters a legacy of $1,000 each, to be paid by the 
 son, whom he made residuary legatee, the farm was 
 held in equity to be charged with the payment of the lega- 
 cies, unless there was something in the will to rebut the 
 presumption that the testator intended so to charge the es- 
 tate devised. And a subsequent purchaser from the de^^see 
 or his grantee, being compelled to trace his title through the 
 wiU, was held a£Pected with notice of the legacies and to 
 
 'Bell V. Twilight, 23 N. H., 500, 521; Burch v. Carter, 44 Ala., 115: 
 Mueller v. Engeln, 12 Bush., 441; Boggs v. Vamer, 6 "Watts & S., 469; 
 Sleeper v. Chapman, 121 Mass., 404. See, also, ChampUn v. Laytin, 6 
 Paige, 189. 
 
 2Kaine v. Denniston, 23 Pa. St., 202; Rafferty v. Mallory, 3 Biss., 
 363; Coy V. Coy, 15 Minn., 119. 
 
 SMcAteer v. McMullen, 2 Pa. St., 32 ; Lodge v. Simonton, 2 Penn., 439.
 
 180 NOTICE FKOM TITLE PAPERS. 
 
 take the real estate subject to the charge.' And Avhere an 
 instrument in the chain of title makes mention of a collat- 
 eral instrument, the purchaser would be affected with notice 
 of the recital in such collateral instrument, and all facts that 
 might be ascertained by due inquiry in the line indicated 
 by such recital.- This extends the effect of notice from 
 title papers to facts somewhat remote. The fact recited in 
 the chain of title is merely the existence of an instrument 
 which is not essential to the passing of title from the prior 
 party to the immediate grantor of the purchaser. Such an 
 instrument may or may not affect the title by showing an out- 
 standing claim. If it contains any such disclosure, or facts 
 which would upon inquiry lead to such disclosure, the pur- 
 chaser is charged with notice.^ 
 
 § 325. Recitals in Mortgages. — It is well settled that 
 the ride applies to recitals in mortgages of prior date to the 
 purchase, subject only to the provision that such incum- 
 brances occur in the chain of title from the original holder 
 down to the pm'chaser affected by the recital. So that, 
 where the title to a piece of land Avas acquired at a foreclos- 
 ure sale of a mortgage, made to secure two notes of the 
 same date, neither of which had priority over the other, 
 but which were due to different payees, and the suit for 
 foreclosure was brought by one of such payees, without 
 making the other a party, the recitals in the mortgage were 
 held sufficient notice to the purchaser of the lien in favor of 
 the holder of the other note.* 
 
 § 32G. Books of Record. — So, books and records neces- 
 sary to make out the grantor's title have been held to affect 
 with notice, by their contents, a grantee who may be igno- 
 rant of the facts therein recited. Thus, where the jDurchase 
 was made at a sale under an execution against the original 
 enterer of the land, it was held, as he could only make out 
 
 1 Harris v. Fly, 7 Paige, 421. 
 
 2 Judsonr. Dada, 79 N. Y., 373. 
 
 3 Hope V. Liddel, 21 Beav., 183. 
 
 * Bun-US V. Boulliac, 2 Bush, 89.
 
 NOTICE FKOM TITLE PAPEKS. 181 
 
 his title by reference to the books in the land oflBce which 
 show the original entry, that he was affected with notice of 
 an assignment entered there prior to the rendition of the 
 judgment upon which the execution was based.' 
 
 § 327. Conveyance toy Statute. — The manner of trans- 
 ferring the title of a judgment debtor, by execution sale, 
 and the deed made in pursuance thereof, has been aptly de- 
 nominated a "conveyance by statute."^ Its constituent 
 parts are said to consist of the judgment, the levy, and the 
 sheriff's deed, each of which is an essential requisite to a 
 perfect conveyance. Upon the validity of each of these 
 constituents must the pm-chaser depend to effectuate a 
 transfer of the interest of the judgment debtor, and the 
 absence of either would render the conveyance inoperative 
 for the purpose of vesting such interest in the pm'chaser. 
 The record of these facts is regarded as the written evi- 
 dence of title, answering in the place of a voluntary deed 
 of convej^ance, and as such necessary to enable the subse- 
 quent purchaser to make out his title.* The record of the 
 judgment and decree forming part of the conveyance under 
 which the property was claimed in this case, when looked 
 into, disclosed that the plaintiff was not a party to the suit 
 at which the former judgment was rendered ; that he was 
 at that time an infant of tender years ; that he was the son 
 and heir of A. jST., deceased; that one H. caused himself to 
 be appointed, in Tennessee, administrator of the estate of 
 A. "N., who up to the time of his death resided in Georgia ; 
 that H., in his capacity of such administrator, and also in 
 the character of a creditor under color of such authority as 
 Avas conferred by statute, instituted his suit to subject tlie 
 real estate of the heir in Tennessee to the payment of the 
 debts of his ancestor, prosecuted his suit to judgment, and 
 obtained a decree ordering a sale of the real estate. At the 
 sale the administrator became the purchaser of a tract of 
 
 f Martin v. Nash, 31 Miss., 324. 
 
 2 Nelson v. Allen, 1 Yerg. (Tenn.), 360.
 
 182 NOTICE FROM TITLE PAPEKS. 
 
 six hundred and forty acres of land for tlie price and sum 
 of $25. For the reason that the record of the judgment, 
 where these facts were either disclosed by recitals or direct 
 reference to other papers, was a necessary link in the chain 
 of title to the property, it was held that a purchaser would 
 be affected with notice of such facts.^ 
 
 § 328. Facts Which May be thus Brought Home to 
 Purchaser. — The facts which may be brought to the knowl- 
 edge of the purcliaser in this manner are not confined to 
 such as disclose an outstanding legal title to the premises 
 which may have escaped attention by reason of a failure to 
 comply with the registry laws. So where a prior deed, 
 under which the purchaser holds, shows upon its face that 
 it is fraudulent, he will be charged with notice of such 
 fraud." 
 
 § 329. Contract to Convey. — The rule also applies with 
 equal force where the fact to be brought home to the pur- 
 chaser is a contract to convey, which merely raises an equity 
 in favor of the covenantee, and where such fact is buried 
 in the contract, the existence of which is only made known 
 by the title paper. As where the contest lay between two 
 parties, one of whom (the plaintiff) had a contract for a 
 mortgage which was to be a second hen upon the premises, 
 but which had been fraudulently witliheld by the other con,- 
 tracting party, and the defendant who had taken a mort- 
 gage upon the same premises, given in violation of the 
 terms of the contract. The deed to the mortgagor recited 
 that it was made in pursuance of a contract of sale between 
 the grantor and the plaintiff, of which the grantee had be- 
 come the assignee or purchaser, and as such, entitled to a ful- 
 fillment thereof, by virtue of this conveyance, — giving the 
 date of said contract. In making the assignment of his con- 
 
 1 Nelson v. Allen, 1 Yerg., 360. 
 
 2 Johnson v. Thweatt, 18 Ala., 741; Steedman v. Poole, 6 Hare, 193; 
 Sergeant v. Ingersoll, 15 Pa. St., 343; Ck)y v. Coy, 15 ilinn., 119; Dudley 
 r. Witter, 46 Ala., 664 ; Campbell v. Roach, 45 Ala., 667 ; Newsome v. Col- 
 lins, 43 Ala., 656.
 
 NOTICE FKOM TITLE PAPEKS. 183 
 
 tract mentioned in the deed, plaintiff and the mortgagor en- 
 tered into a written agreement, by which the latter agreed, as 
 part of the consideration of such assignment, that he would 
 execute to plaintiff a mortgage for a stipulated sum, which 
 should be a Hen prior to all others, except the one men- 
 tioned therein. It was not questioned that the mortgagee, 
 who was made a party defendant with the mortgagor, by 
 the recitals in the deed to his grantor was affected with no- 
 tice of the contract of sale therein referred to; but this was 
 not sufficient, for of itself it would not disclose plaintiff's 
 equity. It was, however, sufficient to charge the mort- 
 gagee with notice that the title had passed through the 
 plaintiff's hands, by means of such contract and the assign- 
 ment thereof to his co-defendant, the mortgagor. This ren- 
 dered the assignment a necessary link in the chain of title, 
 and although it was purely equitable in its nature, would be 
 binding upon all purchasers with notice.' 
 
 § 330. Tendor's Lien. — The vendor's lien for the pur- 
 chase money is another equitable interest which will be 
 protected as well by notice through the paper evidences of 
 title as otherwise. So where the property purchased had 
 previously been sold on a credit, Avhich fact appeared by 
 the recitals in one or more of the deeds, this was held suffi- 
 cient notice to put the purchaser upon inquiry as to whether 
 the same had ever been paid, and failing to make such in- 
 quiry the land would be charged in his hands with the orig- 
 inal hen for the purchase money.^ But where a sufficient 
 time had elapsed to bar a claim for the purchase money, 
 under the statute of limitations, it was held that the pur- 
 chaser might assume that it had been paid.' 
 
 § 331. Who Affected. — The notice derived from title 
 papers will affect not only those who may be classed as 
 subsequent purchasers. It has been held binding upon prior 
 
 1 Acer V. Westcott, 1 Lans., 193; S. C, 46 N. Y., 384. 
 2Honore's Ex'r v. Bakewell, 6 B. Mon., 67; Thornton v. Knox, id., 74: 
 Deason v. Taylor, 53 IVIiss., 697; Montefiore v. Browne, 7 H. L., 241. 
 3 Avent V. McCorkle, 45 Miss,, 221.
 
 iSi KOTICE FKOM TITLE TAPERS. 
 
 parties as well. Where a portion of the real estate included 
 in a mortgage has been aliened by the mortgagor, by deed 
 of general Avarranty, equity wiU require the mortgagee 
 to proceed against the propert}' for satisfaction of his mort- 
 c-afe debt, in the inverse order of its alienation. And when 
 lie has released a portion of the premises from the incum- 
 brance, AAith knowledge or notice of the i^rior alienation of 
 another portion, he will not be permitted to foreclose 
 against that portion previously aliened, except upon condi- 
 tion that he credits the debt with the value of the property 
 by him released. Such notice has been implied from the 
 recitals in a release given under such circumstances, making 
 mention of the assignment b}^ the releasee, as further secu- 
 rity, of a bond and mortgage given by the ahenee of the 
 portion previously conveyed. The fact that an instrument 
 executed by himself, affecting the title to the property, 
 acknowledged the assignment of a security taken for the 
 purchase price of a portion of the land included in his 
 mortgage, w^as held to be a conclusive presumption that he 
 knew when he executed that instrument that the property 
 incumbered by such security had been aliened by the mort- 
 gagor.' 
 
 § 332. Different Kinds of Property. — It has been stated 
 elseAvhere that this doctrine is most frequently applied to 
 cases involving the title to real property.- This, however, 
 is only incidental to the difference in the manner and mode 
 of transferring the title to property of a permanent nature 
 from that employed to convey that Avhich is movable. 
 There is no difference in principle between the effect of 
 recitals in papers by which the title lo real estate and per- 
 sonal property is transmitted, when the latter is conveyed 
 or affected by written instruments. This is generally either 
 where the title is acquired under a wiU, or a chattel mort- 
 gage or trust deed. 
 
 1 Guion V. Knapp, 6 Paige, 85. 
 
 2 4nie, §307.
 
 NOTICE FEOM TITLE TAPEKS. 185 
 
 § 333. Stocks Transferred by Executor. — The x)rinciple 
 here discussed was apphed in an early English case, where 
 the property involved was certain stocks, which were as- 
 signed by an executor to a broker, who took the same in 
 satisfaction of a debt due from such executor. Knowledge 
 of the fact that the stocks were received by the executor 
 from the testatrix was brought home to the assignees of the 
 stocks, but not that he had actual notice or knowledge of 
 the contents of the will. It was nevertheless held by the 
 master of the rolls, that, as he could not make out his title 
 independent of the will, he was put upon inquiry as to its 
 contents. And, had he inquired, he would have discovered 
 the falsity of the representations made to him by the execu- 
 tor with respect to his right to assign the stocks.' 
 
 § 334. Personal Property. — So where personal property 
 of great value was conveyed in trust to secure a trifling in- 
 debtedness, conditioned that the property thus transferred 
 might remain in the possession of the grantor for an indefi- 
 nite time, he having the right to use and consume the same 
 according to his own pleasure, until the happening of an 
 uncertain event. The property thus conveyed included 
 debts due the grantor as well as chattels in possession, and 
 according to the construction placed upon the terms of the 
 instrument, the grantor was allowed to collect these debts 
 without being required to account to the trustee for the 
 money so collected. It was held that this deed bore upon 
 its face such unmistakable evidence of its fraudulent char- 
 acter, that any one reading it must be presumed to know 
 that it was a contrivance to hinder and defraud creditors. 
 And that a purchaser whose title to the property was traced 
 through this deed was affected with notice of aU of its 
 provisions." 
 
 § 335. Inquiry Extends to Examination of Papers. — 
 The rules will apply to any species of property wliich may 
 be legally transferred by written instruments, or where the 
 
 1 Hill V. Simpson, 7 Ves. Jr., 152. 
 
 2 Jolinson V. Thweatt, 18 Ala., 741-7.
 
 186 NOTICE FEOM TITLE PAPEKS. 
 
 title depends upon any writing. And it lias been held that 
 the inquiries which the purchaser is under obligation to 
 make by reason of his knowledge of the existence of such 
 writing must not stop short of an inspection of the docu- 
 ments themselves.* 
 
 § 386. Deed of Real Estate Coiitaining Bill of Chat- 
 tels. — But Avhere a conveyance of real estate in which was 
 incorporated a bill of sale of chattels had been placed upon 
 record, it was held that a purchaser of the real estate was 
 not thereby charged with notice of a hen attempted to be 
 retained upon the personalty .- 
 
 1 Christmas v. Mitchell, Sired. Eq., 535. 
 2MueUer v. Engeln, 13 Bush(Ky.), 441.
 
 CHAPTEE YI. 
 
 LIS PENDENS. 
 
 § 337. Lord Bacon's Rule. 
 
 338. Public Policy. 
 
 339. Doctrine of Constructive Notice Applied. 
 
 340. Views of Judge Story. 
 
 341. Chancellor Kent. 
 
 342. Eule of Equity Jiurisprudence. 
 
 342a. Actions in Which the Doctrine Has Been Applied. 
 
 343. Applied to Action of Ejectment. 
 
 344. The Doctrine Indispensable. 
 
 345. Lord tiardwicke. 
 
 346. Effect of Revivor. 
 
 347. Consideration No Protection to Purchaser. 
 
 348. Commencement of the Suit. 
 
 349. Service of Process. 
 
 350. Harshness of the Rule. 
 
 351. Property to be Identified. 
 
 352. Alimony. 
 
 353. Creditors' BiU. 
 
 354. Jurisdiction. 
 
 355. Holder of Legal Title Must be Impleaded. 
 
 356. Equitable Interest Between Defendants Unaffected. 
 
 357. Suit Must be Continuously Prosecuted. 
 
 358. Effect of Dismissal. 
 
 359. Dihgence in Pi-osecution. 
 
 360. Rule Not Extended to Affect Others than Purchasers. 
 
 361. Prior Mortgagee Unaffected. 
 
 362. Foreclosure of Prior Mortgage. 
 
 363. Antecedent Equity. 
 
 364. Same. 
 
 365. Holder of Equity May Acquh-e Legal Title. 
 
 366. Holder of Contmgent Right. 
 
 367. Waiver by Plaintiff. 
 
 368. Grantor Must be a Party at Time of Purchase. 
 
 369. Generally Confined to Real Estate. 
 
 370. Pm-chaser of Securities. 
 
 371. Same — Illustration — Trusts. 
 373. Does Not Affect Negotiable Paper.
 
 ISS LIS PENDENS. 
 
 § 373. Peculiar Band of Property. 
 
 374. Statutory Provisions. 
 
 375. Purchaser Not Affected Personally — Effect of Judgment. 
 
 376. Statute of Limitations Does Not Run Dm'ing Suit. 
 
 377. Purcliaser at Execution Sale. 
 
 § 337. Lord Bacon's Rule* — The rule by which a pur- 
 chaser of property, jpendente lite, is bound by the decree of 
 the court, is thus expressed by Lord Bacon : " Ko decree 
 biudeth any that cometh in honajide by conve3^ance from 
 the defendant, before the bill is exhibited, and is made no 
 party by bill or order ; but when he comes in jpendeiite lite, 
 and while the suit is in full prosecution, and Avithout any 
 color of allowance or privity of court, there regularly the 
 decree bindeth. But if there were any intermissions of 
 suit, or the court made acquainted with the conveyance, the 
 com't is to give order upon the special matters according to 
 .justice."' 
 
 §338. Public Policy. — The language of the courts in 
 describing the operation of this ride as constructive notice 
 has not escaped learned criticism. Lord Ckanwokth, in Bel- 
 lamy V. Sabine,- regards it as " scarcely correct to speak of 
 lis 2>&nde7i8 as affecting a purchaser through the doctrine of 
 notice. ... It affects him not because it amounts to 
 notice, but because the law does not allow litigant parties 
 to give to others, pending the litigation, rights to the prop- 
 erty in dispute so as to prejudice the opposite party." It 
 has also been held that, as the doctrine operates in cases 
 where there is no possibility of the purchaser having notice 
 of the pendency of the suit, therefore it rests upon con- 
 siderations of pubhc policy, and no;t upon any presumption 
 of notice.* 
 
 § 330. Doctrine of Constructive Notice Applied. — It is 
 undoubtedly true that the rule, which at times works harshly, 
 
 1 Bacon's Works, vol. 2, 479. 
 
 -1 DeG. & J., 566-78; Culpepper v. Aston, 12 Ch. Cas., 115; Sorroll 
 w. Carpenter, 2 P. Wms., 482; Garth v. Ward, 2 Atk., 174; Worsley v. 
 Earl of Scarborough, 3 id., 392. 
 
 3 Newman v. Chapman, 2 Rand., 93.
 
 LIS PENDENS. 189 
 
 is only justified by the necessit}^ there exists of putting an 
 end to litigation and jDre venting the defendant from evading 
 the decree b}" parting with the property in dispute after the 
 suit is instituted, and before it has reached final judgment 
 or decree. But courts of equity would not- tolerate a rule 
 merely upon grounds of necessity, which operated to divest 
 the title to property acquired not only in good faith, but with- 
 out any means whatever of gaining a knowledge of adverse 
 claims. It is no explanation of the principle upon which 
 the rule is founded to say that "the law does not allow liti- 
 gant parties to give to others, pending the litigation, rights 
 to the property in dispute, so as to prejudice the opposite 
 party." The rule does not operate simply to prohibit liti- 
 gant parties from transferring their interests. It also pre- 
 vents others fi'om purchasing while the title is being 
 litigated. It could hardly be conceived that a court of 
 equitable jurisdiction would entertain a rule so harsh in its 
 operations were it not for the publicity of judicial pro- 
 ceedings, b}^ which the purchaser might be enabled to gain 
 a knowledge of the manner in which his vendor's title was 
 attacked. It is perfectly safe to say that if the proceedings 
 were conducted with such secrecy as to render it utterly 
 impossible for a purchaser to obtain any information of the 
 controversy before it was too late, the doctrine of lis pendens 
 never would have been promulgated. There is then no im- 
 propriety apparent from the reason of the rule, in declaring 
 that the pendency of a suit res])ecting the title to real prop- 
 erty is such notice to the world that the property which is 
 the subject of the litigation ^vill be bound by the decree in 
 the hands of a purchaser actually ignorant of the litigation.^ 
 
 iBlanchard v. Ware, 43 la., 530; BoiTOwscale v. Tuttle, 5 Allen, 377 
 Havens v. Adams, 8 Allen, 363; McPherson v. Housel, 2 Beasley, 299 
 Hersey v. Turbett, 27 Pa. St., 418; Boulden r. Lanahan, 29 Md,, 200 
 Inloes' Lessee v. Harvey, 11 Md., 519; Tongue v. Morton, 6 Har. «& J., 
 21; Eeal Estate Sav, Inst, v. Collonious, 63 Mo,, 290; O'Reilly v. Nichol- 
 son, 45 Mo., 160; Holman v. Patterson's Heirs, 29 Ark., 357; Brandage 
 V. Biggs, 25 Ohio St., 652; Seabrook v. Brady, 47 Ga., 650; Douglass v. 
 McCrackin, 52 Ga., 596; Tharpe v. Dunlap, 4 Heisk., 674.
 
 190 us PENDENS. 
 
 § 340. Tiews of Judge Story.— This view of the ques- 
 tion is also well supported by authority. Judge Story has 
 said that " every man is presumed to be attentive to what 
 passes in the courts of justice of the state or sovereignty 
 Avhere he resides. And therefore a purchase made of prop- 
 erty actually in Vitigation, 2?end£nte lite, for a valuable con- 
 sideration, and without any express or implied notice in 
 point of fact, affects the purchaser in the same manner as 
 if he had such notice; and he will accordingly be bound 
 by the judgment or decree in the suit." ^ 
 
 §3 + 1. Chancellor Kent. — So, in the leading American 
 case of Murray v. Ballon,^ Chancellor Kent declares that 
 " a Uspetidens duly prosecuted, and not collusive, is notice to 
 a purchaser, so as to affect and bind his interest by the decree." 
 
 § 34t2. Rnle of Eqnity Jnrisprudence. — This doctrine 
 lias been generally accepted in courts of equity in this coun- 
 try and Great Britain, and the rule as declared above, ex- 
 cept where abrogated or modified b}^ statute, continues to 
 form a part of the equity jurisprudence of both countries. 
 It has been held that this is purely a doctrine of equity, 
 recognized and enforced in courts of equity alone, and can- 
 not be rendered available in proceedings at law.* 
 
 § 342a. Actions in Which the Doctrine Has Been Ap- 
 plied. — Among the actions to which this doctrine will apply 
 are suits for the foreclosure of unrecorded mortgages;^ to 
 
 1 Story's Eq. Jur., sec. 405. 
 
 -1 Johns. Ch., 566. See, also, Edwards v. Banksmith, 35 Ga., 213; 
 Harris v. Carter, 3 Stew., 233; Murray v. Finster, 2 Johns. Ch., 155; 
 Heatley v. Finster, id., 158; Green v. Slayter, 4 Johns. Ch., 38; Salis- 
 bury V. Morse, 7 Lans., 359; Cook v. Mancius, 5 Jolms. Ch., 89; Sedg- 
 wick V. Cleveland, 7 Paige, 287 ; Van Hook v. Throckmorton, 8 Paige, 
 38; Wliite v. Carpenter, 2 Paige, 217; Jackson v. Losee, 4 Sandf. Ch., 
 381; Jackson v. Andrews, 7 Wend., 152; Leitch v. Wells, 48 Barb., 637; 
 48 N. Y., 585; Chapman v. West, 17 N. Y., 125; Ayi-ault v. Murphy, 54 
 N. Y., 203; Harrington v. Slade, 22 Barb., 161 ; Pratt v. Hoag, 5 Duer, 
 631. 
 
 3 King V. Bill. 28 Conn., 593. 
 
 < Chapman r. West, 17 N. Y., 125; Center v. Bank, 22 Ala., 743; Mc- 
 Cutchen v. Miller, 31 Miss., 65.
 
 LIS PENDENS. 191 
 
 foreclose vendors' liens ; ^ to set aside a decree of partition ; - 
 to enforce the specific performance of contracts for the sale 
 of real estate ; ' to enforce a charge against real property, 
 whatever be the form of action;^ or in almost any suit 
 brought for the purpose of determining the title to real prop- 
 erty, where the record of the instruments under which title 
 is claimed is not sufficient to give notice to subsequent pur- 
 chasers.^ Actions in the nature of creditors' bills have been 
 considered as giving notice to subsequent purchasers of the 
 particular property involved in the controversy, of the 
 equitable lien claimed. But to have this effect, it must be 
 so definitely described that there can be no question as to 
 the property intended.^ 
 
 §343. Applies to Action of Ejectment. — It has also 
 been repeatedly decided, that where an action of ejectment 
 is instituted against the tenant in possession, one coming 
 into possession of the subject of litigation, by assignment 
 or otherwise, pendente lite, will be bound by the judgment, 
 although he be not made a party defendant, and may be 
 ejected under the judgment against his assignor.'' Such as- 
 signee of the possession would be liable for mesne profits, 
 and could not set up title in himself in bar to the action 
 therefor.*^ The application of the doctrine, however, is con- 
 
 1 Center v. The Bank, 22 Ala., 743. 
 
 2Eeal Est. Sav. Inst. v. CoUonious, 63 Mo,, 290. 
 
 3Blancliarcl v. Ware, 43 Iowa, 530. 
 
 ^Seabrook v. Brady, 47 Ga., 650. 
 
 sTharpe v. Dunlap, 4 Heisk., 674; Cockrill v. Maney, 2 Tenn. Ch., 49; 
 Wickliffe v. Breckenridge, 1 Bush, 427; Hersey v. Turbett, 27 Pa. St., 
 418. 
 
 6 See McDermott v. Strong, 4 Johns. Ch., 687; Weed v. Pierce. 9 Cow., 
 722; Hadden v. Spader, 20 Johns., 554; Ednieston v. Lyde, 1 Paige, 637; 
 Farnhani v. Campbell, 10 Paige, 598; Corning v. Wliyte, 2 Paige, 567; 
 U. S. Bank v. Burke, 4 Blackf., 141 ; Blake v. Bigelow, 5 Ga., 437. 
 
 'Howard v. Kennedy, 4 Ala., 592; Jackson v. Tuttle, 9 Cow., 233; 
 Jones V. Chiles, 2 Dana, 25 ; Smith v. Trabue, 1 McLean, 87 ; Wallen v. 
 Huff, 3 Sneed, 82; Hickman v. Dale, 7 Yerg., 149. 
 
 8 Jackson v. Stone, 13 Jolms., 447; Bradley v. McDaniel, 3 Jones, 128; 
 Fogarty v. Sparks, 22 Cal., 142; BoUin v. Connelly, 73 Pa. St., 836; HUl 
 V. Ohphant, 41 Pa. St., 364.
 
 102 LIS TEXDENS. 
 
 fined to proceedings in courts of general or superior juris- 
 diction. It does not apply to proceedings before a board 
 of supervisors, for the condemnation of land for public 
 purposes or the like.' 
 
 § 344. The Doctrine Indispensable. — The harshness of 
 this rule as applied to cases of equitable cognizance, though 
 frequently acknowledged by learned chancellors, has not 
 served to deter them from adhering to it as a safe doctrine, 
 and one which seemed indispensable to the enforcement of 
 their decrees. To hold that purchasers of property, the 
 title to which was in litigation at the time of the transfer, 
 should be unaflfected by the decree unless brought in as 
 parties to the suit after the purchase, would be to place it 
 within the power of a defendant holding under a colorable 
 title, to prolong the litigation indefinitelv. The case of 
 Martin v. Stiles - fairly illustrates tlie extent to Avhich the 
 courts have gone in supporting the principle involved in 
 Lord Bacox's rule. There the bill was filed ,and process 
 served in the year 1640, and the case abated by the death 
 of one of the parties about eight years thereafter ; the pur- 
 chase was made about three years after the abatement, and 
 the case was revived about eleven years subsequent to the 
 purchase, and the decree one year thereafter ; being twent}'- 
 three years subsequent to the institution of the suit, fifteen 
 years subsequent to the abatement, and twelve j^ears after 
 the purchase. It was nevertheless held that the apparent 
 laches in the prosecution of the suit was excused by the 
 wars prevalent at the time, and that the purchase wliile the 
 suit was in abeyance was made pendente lite, and that the 
 purchaser was consequently bound by the decree.' 
 
 iCurran v. Shattuck, 24 Cal., 427. 
 
 ^ Cited in Bishop of Winchester v. Paine, 11 Ves. Ch., 194; S. C, 1 
 Ch. Ca., 150. 
 
 3 The doctrine was applied where there was a purchase from the suc- 
 cessful party in a partition suit, after appeal, and before the suit was 
 finally determined. The cause was remanded, and the mandate of the 
 supreme covurt had not reached the trial court. Real Est. Sav. Inst. v. 
 Collonious, 63 Mo., 290; Jackson v. Warren, 33 111., 331 ; Gihnan v. Ham-
 
 LIS PENDENS. 193 
 
 §345. Lord Hardwicke. — In Garth v. Ward,^ Lord 
 Hakdwicke, in pronouncing the opinion, says : " A decree 
 dismissing a bill of redemption would operate equally in 
 favor of the mortgagee against any person to whom the 
 mortgagors should, dm-ing the pendency of that suit, con- 
 vey, as against liimself. . , . So, in the case of a mort- 
 gagor who comes here for redemption, if, during such suit, 
 he should assign the equity of redemption, and in the final 
 hearing of the cause there should be a decree against the 
 mortgagor, will not the assignee of the equity of redemption 
 be bound by this decree ? " 
 
 § 34:6. Effect of Revivor. — So, also, where a suit was in- 
 stituted to forclose a mortgage, and during its pendency 
 the mortgagor executed a second mortgage upon the same 
 premises and died prior to the decree, on reviving the suit 
 against his personal representatives it was held unnecessary 
 to make parties of mortgagees or purchasers who became 
 such after the institution of the suit.- 
 
 § 347. Consideration No Protection to Purchaser. — 
 Where the doctrine is in force independent of any statutory 
 provision, the purchaser pendente lite will not be protected 
 because he paid a valuable consideration and purchased 
 Avithout actual notice of the pendency of the suit ; but the 
 subject of litigation will be affected by the decree to the 
 same extent as though the purchase were made with fuU 
 knowledge of the pendency of the action.^ 
 
 §348, Commencement of the Suit. — In determining 
 whether a purchase of property is made during the pend- 
 
 ilton, 16 ni., 225; Kern v. Hazerigg, 11 Ind., 443; Ti-uitt v. Tniitt, 38 
 Ind., 16; Knowles v. RabUn, 20 la., 101; Loomis r. Riley, 24 lU., 307; 
 Cooley i;. Brayton, 16 111., 10; Preston v. Tubbin, 1 Vern., 286; Higgins 
 V. Shaw, 2 Dr. & War., 356. 
 12 Atk., 174-5. 
 
 2 Bishop of Winchester v. Paine, 11 Ves. Ch., 194; Montgomery v. 
 Birge, 31 Ark., 491. 
 
 3 Norton V. Birge, 35 Conn., 250; King v. Bill, 28 id., 598; Ray v. Roe, 
 2 Blackf., 258; Green v. White, 7 Blackf,, 242; Ferrier v. Buzick, 6 la., 
 258. 
 
 13
 
 194 LIS PENDENS. 
 
 ency of a suit affecting the title thereof, an important 
 matter for consideration is what amounts to the cojnmence- 
 ment of a suit.^ It is necessary to decide this in order to be 
 able to determine whether at the date of the purchase, there 
 was a lis jy^^ndens within the meaning of the equitable rule. 
 For the purpose of ascertaining whether the suit is brought 
 within the period of statutory limitation, and perhaps for 
 some other purposes, the suit has been held commenced 
 from the date of the issuance of the original process,- and 
 as between the parties to the suit, or their personal repre- 
 sentatives, from the suing out of process, whether the same 
 be issued and served or not.'' But in cases generally, and 
 especially in those where the question as to the validity of a 
 purchase depends upon whether the property purchased is 
 the subject of litigation at the time, the suit will not be re- 
 garded as pending until the service of original process, 
 whether the same is served personally upon the defendant, 
 or by any method prescribed by statute as a substitute for 
 personal service.* And when, for the service of summons, 
 
 1 Sorrell v. Carpenter, 2 P. Wms. , 482 ; Worsley v. Earl of Scarboro, 3 
 Atk.,392; Walker ?\ SmaUwood, Arab., 676; Lowther v. Carlton, 2 
 Atk., 242; Self v. Maddox, 1 Vern., 459: Finch v. Newham, 2 id., 216; 
 Wickliffe v. Breckenridge, 1 Bush (Ky.), 427; Metcalf v. Pulvertoft, 2 
 Ves. & Beam., 200. 
 
 2PindeU v. Maydwell, 7 B. Monr., 314; Shari? v. Maguire, 19 Cal., 577; 
 State Bank v. Cason, 10 Ark., 479; State Bank v. Brown, 12 Ark., 94; 
 Shaw V. Padley, 64 Mo., 519. 
 
 3 McLaren v. Thurman, 8 Ark., 313; Maddox v. Humphries, 30 Tex., 
 494; Lylev. Bradford, 7 Mou., 111. 
 
 4 Clark V. Helms, 1 Root (Conn.), 486; Dunn r. Games, 1 McLean, 321 ; 
 Games v. StOes, 14 Pet., 322; Clevinger v. Hill, 4 Bibb, 498; Chaudron 
 V. Magee, 8 Ala., 570; Hopkins v. McLaren, 4 Cow., 667; Meux v. An- 
 thony, 11 Ark., 411 ; Downer v. Garland, 21 Vt., 362; Gates v. Bushnell. 
 9 Conn., 530; Goodwin v. McGehee, 15 Ala., 232; Lyie v. Bradford, 7 
 Mon., Ill; Lytle v. Pope, 11 B. Mon., 297; Lee v. Averell, 1 Sandf., 731 ; 
 Spalding v. Butts, 6 Conn. , 28 ; SidweU v. Worthington, 8 Dana, 74 ; 
 Jencks v. Phelps, 4 Conn., 149; Bacon v. Gardner, 23 Miss., 60; Fowler 
 V. Byrd, Hemst., 213; Metcalf v. Smith, 40 Mo., 572; Samuels v. Shel- 
 ton, 48 Mo., 444; Bailey v. McGinniss, 57 Mo., 362; Shaw v. Padley, 64 
 Mo., 519; Allen v. Poole, 54 Miss., 323; Allen v. Mandville, 26 Miss., 397;
 
 LIS PENDENS. 195 
 
 or subpoena in chancery, there is substituted the publication 
 of a notice as ordered by the court, such publication should 
 be complete, before the suit could be regarded as pending 
 so as to affect with notice, a purchaser without actual notice 
 or knowledge of the claim adverse to his vendor.^ 
 
 § 349. Service of Process.— The strictness with which 
 the courts insist upon service of process as the commence- 
 ment of the suit may be illustrated by the case of Miller 
 V. Kershaw.^ This was a chancery suit, and it was held that 
 the acceptance of service of the subpoena, as of a date prior 
 to that upon which it was actually served, would not make 
 such a Us pende?is before the day of actual service.* 
 
 §350. Harshness of the Eiile. — Although this is pe- 
 culiarly a doctrine of equitable origin, it is by no means 
 one which is a favorite with the courts exercising chancery 
 jurisdiction. The harshness of its operation when applied 
 to cases where the subject of litigation has been pm'chased 
 in good faith, Avithout actual notice of the pendenc}^ of the 
 suit, renders it necessary and proper to confine it within 
 narrow limits and give the innocent purchaser the benefit 
 of all technical objections which may be interposed to the 
 regularity of the proceeding by which his vendor's title is 
 attacked. The enforcement of the rule does not proceed 
 upon the ground that the purchaser has been guilty of 
 fraud. It is at most a general notice of an equity, and can- 
 not affect any particular person with a fraud, unless there 
 was a special notice of the title in dispute brought home to 
 the person to be charged with notice.* 
 
 Farmers' Nat. Bank v. Fletcher, 44 la., 253; King v. Bill, 28 Conn., 
 593; Dresser v. Wood, 15 Kan., 344; Haughwout v. Murjihy, 21 N, J. 
 Eq., 118; Weeks v. Tomes, 16 Hiin, 349. 
 
 1 Bennett v. Williams, 5 Ohio, 461 ; Clevlnger v. Hill, 4 Bibb, 498. 
 
 2 1 BaUey'sEq., 479. 
 
 3 But a mere iiTegiilarity in service, where it appeared that defendant 
 appeared, would suffice as against one who came in by man-iage of 
 lefendant pendente lite. Koehler v. Bernicker, 63 Mo., 368. 
 
 <Mead v. Lord Orrery, 3 Atk., 235. See, also, Hayden v. Bucklin, 9 
 Paige, 513.
 
 190 LIS TEKDENS. 
 
 § 351. Property to be Identified. — One of the leading- 
 principles upon wliicli this doctrine is founded is that the 
 specific property must be so pointed out by the proceedings 
 as to warn the whole world that they meddle with it at 
 their peril. There must, therefore, be something in the 
 pleadings, or the published notice, at the date of the pur- 
 chase, to direct the purchaser's attention to the property as 
 the identical thing which is the subject of the litigation.^ 
 The notice, being purely constructive, is of the facts con- 
 tained in the bill and nothing more. Therefore, unless it 
 contains averments calculated to affect the title to the prop- 
 erty, the purchaser will be unaffected.- Nevertheless, there 
 may be peculiar circumstances that extend the effect of the 
 notice to a portion of the premises not directly embraced in 
 the objects of the suits.^ 
 
 § 352. Alimony. — "Where a petition for divorce, in gen- 
 eral terms prayed for alimony, without asking for an allow- 
 ance out of any specific property, this was held not to 
 operate as a lien until the decree was pronounced fastening- 
 it upon a particular property.* 
 
 §353. Creditors' Bill. — So also, a creditors' bill, to 
 operate as notice under this doctrine, must be so definite in 
 the description of the property to be charged, that any one 
 reading it can learn thereby what property is the subject of 
 the litigation.'^ 
 
 » Lewis V. Mew, 1 Strob. Eq., 180. 
 
 2 Griffith V. Griffith, 1 Hoflf. Ch. R., 153; Stone v. Connelly, 1 Mete. 
 (Ky,), 652; Ray r. Roe, 2 Blackf., 258; MiUerv. Sherry, 2 WaU., 237; 
 Green v. Slayter, 4 Johns. Ch., 38; Low v. Pratt, 53 III., 438; Jones v. 
 McNarrin, 68 Me., 334; Lewis v. Madison, 1 Munf., 803; Brown v. 
 Goodwin, 75 N. Y., 409; Jafifray v. Brown, 17 Hun, 575; Chapman 
 V. West, 17 N. Y., 125. 
 
 3 Drake v. CroweU, 40 N. J. L., 58. 
 < Hamlin v. Bevans, 7 Ohio, 161. 
 
 5 Miller v. Sherry, 2 Wall., 237; McDermott v. Strong, 4 Johns. Ch., 
 687; Hadden v. Spader, 20 Johns., 554; Weed v. Pierce, 9 Cow., 722; 
 Edmeston v. Lyde, 1 Paige, 637; Corning v. Whyte, 2 id., 567; Famham 
 V. Campbell, 10 id., 598; U. S. Bank v. Burke, 4 Blackf., 141; Blake v. 
 Bigelow, 5 Ga., 437; McCutchen v. Miller, 31 Miss., 65.
 
 LIS PENDENS. 197 
 
 §354. Jurisdiction. — In order that the purchaser j^e^i- 
 dente lite may be charged with constructive notice of plaint- 
 iff's equity, by reason of the pendency of the suit, it is 
 necessary that the coui't to which the summons or subpoena 
 is returnable should have complete jurisdiction of the prop- 
 erty in dispute.^ 
 
 § 355. Holder of Legal Title Must be Impleaded. — It 
 is not sufficient that there is a claim made by the pleadings 
 to the property. To affect a purchaser who comes in pen- 
 dente lite, under the holder of the legal title, with construct- 
 ive notice of the equity claimed against it, the holder of the 
 legal title must have been impleaded at the time of the pur- 
 chase. Shoidd he be brought in subsequent to the purchase, 
 the lis pendens would not take effect by relation, so as to 
 charge the purchaser with notice, although the property 
 may have been specially designated in the bill.^ 
 
 § 356. Equitable Interest Between Defendants Unaf- 
 fected. — The principle of the rule does not extend to the 
 equitable interest of one of the defendants in an action, as 
 against his co-defendant, although such interest be apparent 
 on the face of the proceedings, where it is not necessary for 
 the purposes, of the suit that effect be given to such equi- 
 table interest, and the purchaser from the defendant in 
 whom the legal title was vested had no notice of such 
 equity,^ 
 
 § 357. Suit Must be Continuously Prosecuted. — A fur- 
 ther restriction upon the application of this doctrine is 
 that, in order to render the pendency of the suit con- 
 structive notice to hona fide purchasers for value and Avith- 
 out actval notice, the suit must be continuously prosecuted 
 from its commencement to final judgment or decree.* And 
 
 iCarrington v. Brent, 1 McL., 167; S. C, 9 Pet., 86. 
 
 2 Carr v. Callaghan, 3 Littell, 365 ; Macy v. Fenwick, 9 Dana, 198. 
 
 SBeUamy v. Sabine, 1 De G. & J., 566. 
 
 ^Ferrier v. Buzick, 6 la., 258; McGregor v. McGregor, 21 la., 441; 
 Newman v. Chapman, 2 Rand., 93; Watson v. Wilson, 2 Dana, 406; 
 Herriugton v. Herrington, 27 Mo., 560; Carter v. IVHlls, 30 Mo., 432; Hay- 
 den V. Bucklin, 9 Paige, 512 ; Clevinger v. Hill, 4 Bibb, 498 ; Turner v.
 
 198 LIS PENDENS. 
 
 where a proceeding was perpetuated by successive continu- 
 ances from 1842 to 1868, it was justly held that the Us pen- 
 dens had lost its force.' 
 
 § 358. Effect of Dismissal. — In Ludlow v. Kidd,'- where 
 the suit had been dismissed and a biU of review subse- 
 quently fded, it was held that the suit was not pending, 
 within the meaning of the rule, between the time of dis- 
 missal and the filing of the bill of review so as to affect 
 purchasers with notice. It was held the same where, after 
 dismissal, a writ of error upon the judgment of dismissal 
 was sued out, and the purchaser between the dismissal and 
 suing out the writ was protected in his purchase.' 
 
 §359. Diligence in Prosecution. — To entitle a party 
 plaintiff to the enforcement of this principle of lis pendens 
 against a hona fide purchaser without actual notice of the 
 litigation, such party will be required to show reasonable 
 diligence in the prosecution of his suit. Accordingly, 
 where it appeared that there had been a failure on the part 
 of the plaintiff to make proper parties, whereby the litiga- 
 tion was unreasonably and vexatiously protracted, the pur- 
 chaser jyendente lite was held not to be charged with 
 constructive notice of the suit.* But where the suit abates 
 by the death of a party the lis pendens will not fail if it 
 be revived without unreasonable delay.* Where the appeal 
 is taken by plaintiff it must be dihgently prosecuted.® 
 
 Crebill, 1 Ohio, 372; Lee Co. v. Rogers, 7 Wall., 181 ; Jackson v. "Warren, 
 32 ni., 331; Winborn v. Gan-ell, 3 Ired. Eq., 117; Page v. Waring, 7G 
 N. Y., 463; Pi-ice v. McDonald, 1 Md., 403; Herringtou v. McCuUum, 73 
 HI., 476; Petree v. BeU, 2 Bush, 58; Trunble v. Boothy, 14 Ohio, 109. 
 
 ' Fox V. Reeder, 28 Ohio St., 181. 
 
 23 Oliio, 541. But the suit may be regarded as pending continuously, 
 notwithstanding the filing of a supplemental biU prior to the decree. 
 Stoddard v. Myers, 8 Ohio, 203. 
 
 3Eldridge v. Walker, 80 HI., 270. 
 
 ^ Supra, §357: Ashley u. Cunningham, 16 Ark., 168; Debell v. Fox- 
 worthy, 9 B. Mon., 228. 
 
 5 Debell w Foxworthy, 9 B. Mon., 228. 
 
 6 Oilman v. Hamilton, 16 111., 225.
 
 LIS PENDENS. 199 
 
 § 360. Rule Not Extended to Affect Others than Pur- 
 chasers. — This doctrine, being originally invoked by courts 
 of equity rather as a measure of necessity, to prevent a 
 failure of justice, than on account of its consistency Avitli 
 abstract justice, and being employed to restrain mere 
 strangers from coming in 2)ende}ite lite, by acquiring an in- 
 terest in the subject of litigation, the courts have uniformly 
 refused to extend its provisions to others who were not inir- 
 chasers in the strict sense of the term. It will, therefore, 
 not affect either mortgagees, whose securities are prior to 
 the suit, or the holders of antecedently acquired equitable 
 interests in the property.^ Nor will a purchaser of the prop- 
 erty from one who is not a party to the suit be affected. 
 Whatever interest may be acquired from an outside source 
 in this manner will be held unaffected by the suit.- 
 
 § 361. Prior Mortgagee Unaffected. — An instance of an 
 attempt to charge a previous mortgagee with constructive 
 notice in this manner is the case of Stuyvesant v. Hone.-' 
 This was where a second mortgagee asked the aid of a 
 court of equity to enforce the familiar doctrine requiring 
 the mortgagee of several tracts pledged to secure the same 
 indebtedness, to proceed by foreclosure against the several 
 tracts in the inverse order of their alienation. The first 
 mortgage covered several tracts, one of which only was 
 covered by the second. Pending a suit to foreclose the sec- 
 ond mortgage, of. which the first mortgagee had no actual 
 notice, a portion of tlie property included in the first mort- 
 gage, but not in the second, was released without diminish- 
 ing the indebtedness, theireby leaving the property to which 
 the second mortgagee was forced to look for his security, so 
 heavily incumbered as to materially impair the value of the 
 junior mortgage. The right of the junior incmnbrancer to 
 the relief prayed for, depending upon notice, the court held 
 
 iSee BeUamy v. Sabine, 1 De G. & J., 566. 
 
 2 Parsons v. Hoyt, 24 Iowa, 154; Scarlett v. Gorharn, 28 111,, 319; Stuy- 
 vesant V. Hone, 1 Sandf . Ch. , 419. 
 ■^ 1 Sandf. Ch., 419.
 
 2u0 I.IS PENDENS. 
 
 that the senior mortgagee could not be charged with con- 
 structive notice by reason of the pendency of the suit for 
 foreclosure.' 
 
 § 36'-J. Foreclosure of Prior Mortgage. — So, a purchaser 
 at a foreclosure sale, where the mortgage was given prior 
 to the institution of a suit brought against the mortgagor 
 with respect to the mortgaged property, was held not to be 
 a purchaser ^?(?;^r7dn/d lite, within the meaning of the rule, 
 although the decree of foreclosure and the sale were both 
 subsequent to the commencement of the suit.^ 
 
 §303. Antecedent Eq[uity. — Where one has an equi- 
 table interest in the property prior to the suit, and by reason 
 thereof should be made a party defendant, neither he nor 
 his assignee will be affected with notice of the suit, actual 
 or constructive, unless he be made a party, and his interest 
 will only be affected from the time of his being so brought 
 in.* 
 
 §364. Same. — The pendency of a suit involving the 
 legal title to the property will not affect the holder of an 
 antecedently acquired equity so as to prevent his clothing 
 himself with the legal title.* 
 
 §365. Holder of Equity May Acquire Legal Title. 
 Accordingly where, in the case of Gibler v. Trimble,'^ tl::^ 
 legal title to the lands in dispute was in the United State; 
 government, and the com]3lainants, by contract of purchase, 
 entered into with the legal holder of certain military land 
 warrants, acquired an interest against such legal holder, in 
 such lands, by virtue of the location of the land warrants ; 
 but a purchaser had taken possession, paid the purchar;:; 
 money and made permanent improvements upon the land, 
 by reason of the contract of sale the covenantor became 
 
 iSee, also, Stuyvesant v. Hall, 3 Barb. Cli., 151. 
 2 Fen wick v, Macj', 2 B. Mon., 469; Chondi-on v. Magee, 8 Ala., 570. 
 3 Parks V. Jackson, 11 Wend., 442. 
 
 •« Gibler v. Ti-imble, 14 Ohio, 323; Clarkson v. Morgan, 6 B. Mon., 441 ; 
 Fogarty v. Sparks, 22 Cal., 142; Irvin v. Smith, 17 Ohio, 226. 
 5 Supra.
 
 LIS PENDENS. 201 
 
 bound to secure to the covenantee the legal title ; and where 
 a suit was instituted against the legal owner of the war- 
 rants, to compel their assignment and the conveyance of 
 the land to those equitably entitled thereto, it was held that 
 this would not operate as a lis pendens to prevent the pur- 
 chaser in possession from perfecting his title by procuring 
 a patent from the government. 
 
 §366. Holder of Contingent Right. — When a contin- 
 gent right to the property becomes vested by the happening 
 of the contingency, dming the pendency of a suit involv- 
 ing the title, he upon whom the title devolves will not be 
 affected with notice of the suit. As where, in Murray ^\ 
 Blatchford,^ there was a conditional assignment of a mort- 
 gage, and during the pendency of a suit by the assignee to 
 foreclose, the condition was broken and the mortgage re- 
 vested, the mortgagee was held not to occupy the position 
 of a purchaser pendente lite, and hence was not bound by 
 the decree rendered. 
 
 § 367. Waiver by Plaintiff.— Where the sale by the de- 
 fendant, pendente lite, is ratified by the plaintiff who pre- 
 vails in the suit, by taking judgment for the proceeds of 
 such sale, or for the value of the property as for conversion, 
 this will be construed as a waiver of his claim to the thing.- 
 
 § 368. (jrantor Must be a Party at Time of Purchase. — 
 If, at the time of the sale, the person from whom the pur- 
 chase is made has not been made a party, the lis pendens will 
 not affect the purchaser, although his grantor may subse- 
 quently be brought in by summons, or may voluntarily 
 appear ; for those purchasers only are charged with notice 
 who purchase from parties to the suit.' 
 
 § 369. Generally Confined to Real Estate. — In apply- 
 ing this doctrine the courts have generally manifested an 
 
 11 Wend., 583. 
 
 -' Smith V. Brown, 9 Leigh, 293. 
 
 3 French v. The Loyal Company, 5 Leigh, 627; Stuyvesant v. Hone, 
 1 Sandf. Ch., 419; 2 Barb. Ch., 151; Parks v. Jackson, 11 Wend., 442; 
 Scarlett v. Gorham, 28 111., 319; Parsons v. Hoyt, 34 Iowa, 154.
 
 202 LIS PENDENS. 
 
 inclination to restrict its oiDcration to suits in which tho 
 title to real property was litigated. In some of the cases 
 this restriction is expressed, Avhilc in others doubts seem to 
 be entertained, with a decided inclination to resolve them 
 by declaring against the extension of this unfavored doc- 
 trine to sales of personal chattels.^ 
 
 §370. Purchaser of Securities. — In "\Yatlington v. 
 riowley,- however, a purchaser of securities, pendente lite, 
 was held to be bound by the decree, to the extent that he 
 might be required to restore the securities to the rightful 
 owner, and receive what he had actually paid for them, re- 
 gardless of Avhat they might be worth at the time. 
 
 §371. Same — Illustratiou — Trusts. — So Murray t'. 
 Lylburn^ was a case involving the application of the 
 principles of lis ^xw^^n,9 to the assignment of a bond 
 and mortgage, where the securities were assigned by a 
 trustee, pending a suit by the cestui que trusts, hj biU in 
 equity against such trustee, for a breach of trust, and to 
 take the whole subject of the trust out of his hands, to- 
 gether with all the papers and securities relating thereto. 
 It was lield by Chancellor Kent that the cestui que trusts 
 could pursue the bond and mortgage in the hands of the 
 assignee, for the reason that the pendency of the suit against 
 the trustee by whom tlie assignment was made was notice 
 to all the world. The learned chancellor, in rendering the 
 opinion, says : " If W. (the trustee) had held a number of 
 mortgages and other securities, in trust, when the suit was 
 commenced, it cannot be pretended that he might safely 
 defeat the object of the suit, and elude the justice of the 
 court, by selling these securities. If he possessed cash as 
 the proceeds of the trust estate, or negotiable paper not 
 
 1 Winston v. Westfeklt, 22 Ala., 760; McLourine v. Monroe, 30 Mo., 
 462; Baldwin v. Love, 2 J. J. Marsh., 489. See Bayer v. Cockerill, 3 
 Kans., 282; Cockrill v. Maney, 2 Tenn. Ch., 49; Horn v. Jones, 28 Cal., 
 194; Watson v. Wilcox, 39 Wis., 643. 
 
 •2 1 Desau., 167. 
 
 3 2 Johns. Ch., 441.
 
 LIS PENDENS. 203 
 
 due, or perhaps movable personal property, such as horses, 
 cattle, grain, etc., I am not prepared to say the rule is to 
 be carried so far as to affect such sales." ^ 
 
 § 372. Does Not Aflfect Negotiable Paper. — The above 
 declaration of this doctrine is sufficiently indicative of the 
 kind of chattels which may be affected by litigation with 
 respect thereto against the legal owner. The cases are 
 numerous in which it has been decided that negotiable in- 
 struments, by whatever form of action it is sought to sub- 
 ject them to adverse claims, cannot be affected m the hands 
 of hona fide purchasers who acquire them before maturity.- 
 
 § 373. Peculiar Kind of Property. — In exceptional 
 cases decided with reference to property of a peculiar kind, 
 and which was necessarily governed by pecuhar laws, the 
 doctrine has been applied ; ^ but as this species of property 
 no longer exists, the principle governing such cases can 
 hardly be applied with safety to sales of chattels, the pro- 
 prietary interest in w^hich does not depend upon local 
 statutes. 
 
 § 374. Statutory Provisions. — In some of the states of 
 the Union, and in England, there have been statutory pro- 
 visions enacted Avhich materially simplify the operation of 
 a lis pendens ; for the reason that in order to affect a party 
 with constructive notice of the pendency of a suit, tliere 
 must be a notice of such suit filed with the officer wliose 
 duty it is to register conveyances of real estate. These 
 statutes provide in substance that from the time of such 
 
 'See, also, Sciidder t'. Van Amburgh, 4 Edw, Ch., 29; Diamond v. 
 Lawrence Co. Bank, 1 Wright, 353: Balling r. Cai-ter, 9 Ala., 921 ; Shel- 
 ton V. Johnson, 4 Sneed, 672; Leitch v. Wells, 48 N. Y., 585; Hoxie v. 
 Carr, 1 Sumn., 173. 
 
 2 Day V. Zimmerman, 68 Pa. St., 72; Goodman v. Simonds, 20 How., 
 343; Mines v. West, 38 Ga., 18; Winston v. Westfeldt, 22 Ala., 760: Hill 
 V. Kroft, 29 Pa. St., 186; Kellogg v. Fancher, 23 Wis., 21; Stone v. Elli- 
 ott, 11 Ohio St., 252; Kieffer v. Eliler, 18 Pa. St., 388: Hibernian Bank 
 V. Everman, 52 Jliss., 500; Mayberry t\ Morris, 63 Ala., 113. 
 
 'Macey v. Fenwick, 9 Dana, 198; Smith v. Brown, 9 Leigh, 293; Dut- 
 ton V. Warschauer, 21 Cal., 609: Braman v. Wilkinson, 3 Barb., 151; 
 Smith V. Gibson, 15 Minn., 89; Dixon v. La Coste, 1 Sm. & Marsh., 107.
 
 204 LIS TEKDENS. 
 
 filing only shall the pendency of the action be constructive 
 notice to a purchaser or incumbrancer of the property af- 
 fected thereby, and hence are regarded as substitutes for 
 Lord Bacon's rule,' but not as having the effect to modify 
 the rule that one purchasing with actual notice of the liti- 
 gation will bo bound by the decree.^ Nor do these statutes 
 govern equitable proceedings in the federal courts, except 
 where they are adopted." 
 
 § 37 5. Purchaser Not Affectetl Personally — Effect of 
 Jiidgnient. — This rule being only applicable to suits which 
 are in their nature actions in rem, the judgment rendered 
 will not bind the purchaser personally, but will only affect 
 the property or interest which is the subject of litigation. 
 The purchaser merely holds the title subject to the judg- 
 ment. The lis pendens ends with the final judgment in the 
 suit.'* 
 
 § 376. Statute Of Limitations Does Not Run During 
 Suit.— During the progress of a suit involving the title to 
 real estate, where the doctrine of lis pendens is applicable, 
 the statute of limitations will not run in favor of the pur- 
 chaser, so as to defeat the operation of the rule.^ 
 
 iHaynesv. Calderwood, 23 Cal., 409; Hurlbutt v. Butenop, 27 Cal., 
 50; Richardson v. White, 18 Cal., 103; Bensley v. Mountain Lake Water 
 Co., 13 id., 306; Gregory v. Haynes, id., 591; Head v. Fordyce, 17 id., 
 149; Ault V. Gassaway, 18 id., 205; Horn v. Jones, 28 id., 195. 
 
 -Sampson v. Ohleyer, 32 Cal., 200; Montgomery v. Byers, 31 Cal., 107; 
 Grattanu. Wiggins, 23 Cal., 16; Sharp v. Lumley, 34 Cal.', 611; Ferrea 
 V. Chabot, 63 Cal., 564. 
 
 ^Majors v. Cowell, 51 Cal., 478. See fiu-ther as to the construction of 
 the statutes, MiUs v. BUss, 55 N. Y., 139; Brown v. Goodwin, 75 N. 
 Y., 409; Fullers. Scribner, 76 N. Y., 190; Sheridan v. Andrews, 49 N. 
 Y., 478; MitcheU v. Smith, 53 N. Y., 413; Todd v. Outlaw, 79 N. C, 235; 
 Jones w. McNarrin, 68 Me., 334; Wliite v. Perry, 14 W. Va., 66; Tread- 
 way V. McDonald, 51 la., 663. 
 
 ♦Worsley v. Earl of Scarborough, 3 Atk., 392; Lane v. Jackson, 20 
 Beav., 535; Lee v. Green, 6 De G., M. & G., 155; Proctor v. Cooper, 2 
 Drew, 1 ; Churcliill v. Grove, 1 Ch. Cas., 35; Lee Co, v. Rogers, 7 Wall., 
 181; Turner v. CrebUl, 1 Ohio, 372; Page u. Wai'ing, 76 N. Y., 463; 
 Wmbornr. Gorrell, 3 Ired. Eq., 117. 
 
 ^Henly v. Gore, 4 Dana, 133.
 
 LIS PENDENS. 205 
 
 § 377. Purchaser at Execution Sale. — Those who pur- 
 chase at an execution sale will be affected in the same man- 
 ner as purchasers directly from the defendant, when the 
 action upon which the execution is based has been com- 
 menced subsequent to that in which the title to the property 
 is litigated.' 
 
 1 Turner u, Babb, 60 Mo., 343; Stoddard v. Myers, 8 Ohio, 203; Scott 
 V. Colman, 5 Monr., 73; Pindall v. Trevor, 30 Ark., 249.
 
 CHAPTER YII. 
 
 NOTICE BY WHICH CERTAIN LIABILITIES ARE CREATED. 
 
 I. Notice of AccEPTA^x•E of Proposals. 
 II. Notice of Guaranty, 
 
 III. Notice of Assignment. 
 
 IV. Notice to Carriers and Other Bailees. 
 
 V. Notice of Suit in Ejectment, to Warrantor. 
 VI. Notice by Which Liability for Tort May be Fixed, 
 VII. Notice by Which Certain Contract Liabilities May be Fixed. 
 
 I. Notice of Acceptance of Peoposals. 
 
 § 378. Continuing and Limited Offers. 
 
 379. Necessity of Notice. 
 
 380. Time. 
 
 381. Offer by Auctioneer. 
 
 382. Notice May be Oral or Written. 
 
 383. By Mail. 
 
 384. Continuing Until Accepted, Rejected or Withdra^vn. 
 
 385. Withdrawal by Mail, 
 
 § 378. Contiinnng and Limited Offer. — One of the 
 
 necessary ingredients of every contract, and the one which 
 is first in point of time, is the proposal or offer made by the 
 one party to the other. And when such offer is made with- 
 out express limitation as to the time of its acceptance, it 
 will be regarded as a continuing offer for a reasonable time, 
 or until accepted or withdrawn. When accepted, it ceases 
 to be an offer, because it has then ripened into a contract. 
 When withdrawn, the matter in negotiation is at an end.^ 
 When the time for acceptance is expressly limited by the 
 proposer, which it is always within his power to do, the 
 proposal falls to the ground at the expiration of that time, 
 unless sooner accepted or withdrawn.^ 
 
 1 1 Pars, on Cont., 403, and cases cited; B, & M. L, R, Co. v. Unity, 62 
 Me., 148; Burton v. Shotwell (Ky.), 6 Cent. L. J,, 31. 
 21 Pars, on Cont., 405.
 
 NOTICE OF ACCEPTANCE OF PKOPOSALS. 207 
 
 § 379. Necessity of Notice. — -It is not sufBcient, to con- 
 stitute a binding contract between the parties, that one of 
 them makes a proposal which is communicated to the other, 
 and that other secretly resolves in his own mind tliat he will 
 accept the offer made; nor is it even sufficient that he 
 openly declares his acceptance, unless that fact be communi- 
 cated by him to the party making the proposal. In other 
 words, there must be notice of the acceptance from the ac- 
 cepter to the proposer.' 
 
 § 380. Time. — The time within which such notice must be 
 given, in order to create a liability against the proposer, will 
 largely depend upon the subject-matter of the contract, and 
 the conduct of the parties to the negotiation. Of course, 
 if the offer be rejected, a subsequent notice of acceptance 
 would be of no avail.' It has even been laid down by very 
 high authority, as the general doctrine upon this subject, 
 that if the party to whom the offer is addi'essed "goes 
 away, and returns the next month, or the next week, and 
 says he will accept the proposition, he is too late unless the 
 proposer assents in his turn. So it would be, probably, if 
 he came the next day, or the next hour; or, perhaps, if he 
 went away at all and afterwards returned." ^ 
 
 §381. Offer by Auctioneer. — Where goods are offered 
 for sale at auction, a bidder is regarded as making an offer 
 or proposal to purchase at the price mentioned in his bid. 
 The offer to be binding upon him must be accepted before 
 he withdraws it, for until accepted it is of no force. When, 
 however, another bid is made, and cried by the auctioneer, 
 this may be regarded by the first bidder as an unequivocal 
 rejection of his proposal, which cannot again become tlie 
 subject of acceptance unless the latter bid be withdrawn 
 and the former is renewed.^ 
 
 § 382. Notice May Tbe Oral or Written. — Unless the offer 
 stipulates for notice of acceptance in writing, such notice 
 
 1 Benjamin on Sales, § 39 et seq. 
 
 21 Pars. onCont., 404. 
 
 » Payne v. Cave, 3 T. R., 148.
 
 208 NOTICE BY WHICH LIABILITIES ARE CREATED. 
 
 may be given in any manner in which information may be 
 communicated. It may be given either orally or in writing ; 
 and when by the latter mode, may be dispatched by a pri- 
 vate messenger, by the post, or may be by telegraph.' 
 
 § 383. By Mail. — "When the negotiations are carried on 
 between the parties by mail, unless otherwise stipulated by 
 the proposer, the contract will be complete from the date of 
 depositing the notice of acceptance in the postoffice ; not- 
 withstanding during the time intervening betw^een the post- 
 ing of the notice, and its receipt by the one who makes the 
 offer, the latter may have concluded to Avithdraw the prop- 
 osition.2 As in the case cited, a purchaser offered a certain 
 price for an estate, which the vendor accepted by post. The 
 letter announcing the vendor's acceptance of the proposal 
 was received by the party making it the day after it was 
 sent. Here it was held that the vendor was bound by the 
 contract from the time of posting his letter of acceptance, 
 for the reason that the notice intended to announce to the 
 purchaser the concurrence on the part of the vendor had 
 gone beyond his recall.^ 
 
 § 384. Continuing Until Accepted, Rejected or With- 
 drawn. — It has been held otherwise in this country in sev- 
 eral instances,* but the w^eight of authority in the United 
 States as w^ell as in England is decidedly in favor of the 
 rule announced above. It seems also to be the only position 
 on the question that is tenable, upon principles of sound 
 reason. The offer must be regarded as continuing until 
 accepted, rejected or withdrawn. So long as it continues it 
 
 1 Deshon v. Fosdick, 1 Woods, 286 ; Schonberg v. Cheny, 6 Thomp. & 
 C. (N. Y.), 200; S. C, 3 Hun, 677. 
 
 2 Potter V. Sanders, 6 Hare, 1. 
 
 3 See, also, Brisban v. Boyd, 4 Paige, 17; Averill v. Hedge, 13 Conn., 
 424; Mactierv. Frith, 6 Wend., 103; Levy u. Cohen, 4 Ga., 1; Childs v. 
 Nelson, 7 Dana, 281; Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. St., 
 339; Dunlop v. Higgins, 1 H. L. Cas., 381; Story on Sales, §§ 129, 130, 
 and cases cited. 
 
 ■•McCulloch V. Eagle Ins. Co., 1 Pick,, 278; Gillespie v. Edmonston, 11 
 Humph,, 553,
 
 NOTICE OF ACCEPTANCE OF PROPOSALS. 209 
 
 is at the disposal of the party to whom it is made. AYhen he 
 has written and posted an answer to the proposal, notifying 
 the other party that he accepts, he has done all that lies in 
 his power to perfect the contract and render it binding u^on 
 himself, and in doing so has rendered it equally binding 
 upon the author of the proposal. 
 
 § 385. Withdrawal hj Mail. — Professor Parsons, in his 
 very able work on contracts, lays down the rule that the 
 offer may be withdrawn by the maker at any moment ; but 
 he qualifies this somewhat by adding that such offer is with- 
 drawn as soon as notice of such withdrawal reaches the 
 party to whom it is made, and not before.^ This Avould 
 place the proposer in a position at a disadvantage compared 
 to the status of the other party. If the acceptance is 
 completed by the deposit of the notice in the postoifice, 
 why may not the proposition be considered withdrawn from 
 the date of posting notice of such withdrawal rather than 
 from the date of its receipt by the party to whom it is ad- 
 dressed ? It is true that the notice of withdrawal might be 
 posted subsequent to the posting of the acceptance. In such 
 an event there could be no doubt that the attempt to with- 
 draw the proposition was made too late to take effect.- 
 Where, however, the notice of withdrawal is first posted, 
 the same reasoning applied to the notice of acceptance "^nill 
 apply with equal force to the notice intended to put an end 
 to negotiations by retracting the proposal. 
 
 »lPars. onCont., 483. 
 - Hutcheson v. Blakeman, 3 Met. (Ky.), 80. 
 14
 
 210 KOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 II. l^OTICE OF GUARANTT. 
 
 386. Different Foniis of Collateral Liability. 
 
 387. Division of Subject. 
 
 388. Conflicting Decisions. 
 
 389. Early Authorities. 
 
 890. Guarantor Entitled to Notice of Acceptance — Absolute Guaranty. 
 
 391. Proposal to Guaranty. 
 
 392. Letter of Credit Held to be Proposal. 
 
 393. Eeason for Notice of Pi-oposed Guaranty. 
 
 394. Absolute Guaranty, Notice Not Required. 
 
 395. Distinction Between Different Kinds of Guaranties, 
 
 396. Uncertainty of Amount. 
 
 297. General Indefinite Letter of Credit. 
 
 398. Definiteness of Amount. 
 
 399. Guaranty of Proposed Credit. 
 
 400. Absolute Guaranty of Uncertain Amount. 
 
 401. Notice of Acceptance Held Unnecessary. 
 
 402. Continuing Absolute Guaranty. 
 
 403. Principles Regarded as Settled. 
 
 404. Weight of Authority. 
 
 405. Rule as to Indefinite Letters of Credit. 
 
 406. Time of Gi\'ing Notice of Acceptance. 
 
 407. Notice of Action on Guai-anty. 
 
 408. Change of Manner of Reimbursement. 
 
 409. Report of Particular Ti-ansactions Not Generally Required. 
 
 410. Notice of State of Accounts on Demand. 
 
 411. Notice of Principal's Failure. 
 
 412. Conflict of Authority. 
 
 413. Early Massachusetts Aiithorities. 
 
 414. Demand and Notice Held Necessary. 
 
 415. Later Authority — Contra to Above. 
 
 416. Indiana Authorities. 
 
 417. Negligence of Guarantee. 
 
 418. Rule in Connecticut — Absolute Guaranty. 
 
 419. Uncertainty of Amounts. 
 
 420. Means of Knowledge Within Reach of Guarantor. 
 
 421. Pennsylvania Doctrine. 
 
 422. Guaranty and Suretysliip. 
 
 423. Deductions from Authorities. 
 
 424. Obligation, Unlimited and Uncertain. 
 
 425. Notice Not as of Dishonor of Commercial Paper. 
 
 426. Notice Excused — Reasonable Time. 
 
 427. Waiver of Notice.
 
 NOTICE OF GUAEANTY. 211 
 
 §386. DiflFerent Forms of Collateral Liability.— The 
 
 doctrine of notice, as it affects the liability of parties collat- 
 erally liable, except with reference to indorsers of nego- 
 tiable paper, which is treated elsewhere,' will be here 
 considered without regard to the manner in which such lia- 
 bility is denominated in the contract by which it is created. 
 It may be by an agreement in terms to " guarantee " the per- 
 formance of the obligation assumed by the party originally 
 liable as principal, or it may be to " secure" - such perform- 
 ance ; or the form of expression used may be an agreement 
 to be "accountable" or "responsible" for pajnnent of a 
 sum of money due or to become due in the future.^ The 
 undertaking may be indorsed upon the contract of the prin- 
 cipal,* it ma}^ be by a separate writing executed by the 
 guarantor, reciting the obligation assumed by the principal, 
 which it is proposed to guarantee, in specific terms,^ or the 
 obligation may be assumed by a letter of credit, general or 
 special,'' and the application of the rule will be the same in 
 cases belonging to either class, where the obligations as- 
 sumed are the same in substance.'' 
 
 § 887. Division of Subject. — This branch of the subject 
 will be of threefold consideration. First, with reference 
 to notice of the acceptance of the guaranty ; second, notice 
 of the action taken upon the faith of the guaranty ; and 
 third, when and under what circumstances notice of the 
 principal's failure to perform is necessary in order to fix the 
 liability of the guarantor. 
 
 § 388. Conflicting Decisions. — The doctrine that guar- 
 antors are entitled to notice of the acceptance of the 
 
 1 Post, ch. X. 
 
 2Ti-ue V. Harding, 12 Me., 193. 
 
 3 Norton v. Eastman, 4 Me., 521 ; Train v. Jones, 11 Vt., 444. 
 
 4 Taylor v. Ross, 3 Yerg., 330. 
 
 5 Smith u. Ide, 3 Vt.,290. 
 
 6 Russell V. Clark, 7 Cranch, 69. 
 
 " But there is an essential difference between the liability of a guar- 
 antor and that of a surety. Ashton v. Bayard, 71 Pa. St., 139; Krampli 
 V. Hatz, 53 Pa. St., 525.
 
 212 NOTICE BY WHICH LIABILITIES ARE CREATED. 
 
 guaranty, when the obligation assumed is absolute in its 
 terms, has been unequivocally asserted in comparatively 
 few cases in this country, and is said to be utterly repudi- 
 ated in England.^ It is, however, probably the prevailing 
 rule in the state of Massachusetts,- while in New York it is 
 strenuously denied.' As betw^een these two great states, 
 from which we receive so large a part of our commercial 
 law, the latter seems to have by far the largest following 
 upon this question by the other states of the Union.* 
 
 §389. Early Authorities.— The first decision bearing 
 upon this question by high authority in this country was 
 in the case of Kussell v. Clark,* where Chief Justice Mar- 
 shall expressed the opinion that the guarantor could not 
 be held upon the collateral undertaking, even in case it 
 amounted to a contract, absolute in its terms, without no- 
 tice of acceptance. This was followed by the case of Cremer 
 V. Higginson,'' in which it is laid down by Judge Story 
 that where cash advances were made on the strength of a 
 guaranty, hmited to a specific amount, it was the duty of 
 the party making the advances to notify the guarantor of 
 that fact, and that reliance was placed upon the guaranty 
 to insure repayment, and if such notice was not given in 
 a reasonable time the guarantor would be discharged. 
 
 §390. Guarautor Entitled to Notice of Acceptance — 
 Absolute Guaranty. — So, w^here the contract of the prin- 
 cipal was to pay a specific sum in three years, and the con- 
 tract of guaranty was in the following language: "I will 
 willingly hold myself responsible to you for the above 
 amount provided T. (the principal) should fail to pay at the 
 
 1 Cowen, J., in Douglass v. Rowland, 24 Wend., 35. 
 
 2 AUen V. Pike, 3 Cush., 238; Musseyv. R{?,yner, 22 Pick., 223; Talbot 
 V. Gay, 18 Pick., 534. 
 
 3 See New York cases cited infra. 
 * Cases cited infra. 
 
 6 7Cranch, 69. 
 
 61 Mason, 323. See, also, Eussell v. Perkins, id., 368; Rapelye v. 
 Bailey, 3 Conn., 428; Clark v. Remington, 11 Met. (Mass.), 361 ; Babcock 
 V. Bryant, 12 Pick., 133.
 
 NOTICE OF GUARANTY. 213 
 
 end of said term of three years," it was held that the guar- 
 antor was entitled to notice of the acceptance and of the 
 advances made in rehance upon the guaranty, and where 
 such notice was not given, the guarantor could not be held 
 liable on the contract.^ 
 
 §391. Proposal to Guarantee. — Where the contract 
 upon which it is sought to hold the party liable amounts 
 simply to a proposal to guarantee the faithful performance 
 of the principal obligation, and depends upon the consent 
 of the other party to the extension of the credit to the 
 principal obUgor, there seems to be no disagreement be- 
 tween the authorities, American or English, as to the right 
 of the guarantor to consider the contract as incomplete 
 until accepted by the other party, of which acceptance he 
 is entitled to notice;- although there may be some con- 
 flict between them as to what amounts to an absolute guar- 
 anty, and what is simply an offer to guarantee.* 
 
 §392. Letter of Credit Held to be Proposal.— The 
 following is an example of a letter of credit which was 
 treated as a mere proposal to enter into such a collateral 
 engagement, for the reason that it was a continuing guar- 
 anty; but elsewhere similar undertakings have been re- 
 garded as absolute contracts : " Messrs. R. B. & Co. — Our 
 friend, Mr. C. H., to assist him in business, may require 
 your aid, from time to time, either by acceptance or in- 
 dorsement of his paper, or advances in cash. In order to 
 save you from harm by so doing, we do hereby bind our- 
 
 1 Craft u. Isham, 13 Conn., 28. See, also, Lowe v. Beckwith, 14 B. 
 Mon., 187; Howe v. Nickels, 23 Me., 175; Hill v. Calvin, 4 How. (]\Iiss.), 
 231; Beebe v. Dudley, 26 N. H., 249; Dunbar v. Brown, 4 McLean, 166; 
 Mayfield v. Wheeler, 37 Tex., 256. 
 
 2 Norton?;. Eastman, 4 Me., 522; infra, 393, cases cited, note 2; Kel- 
 logg V. Stockton, 29 Pa. St., 460; Unangst v. Hibler, 26 Pa. St., 150; 
 Dixon V. Frazer, 1 E. D. Smith, 32. The rule as laid down in Alabama 
 is that the guarantor is entitled to notice unless the guarantor and cred- 
 itor reside in the same city, and the agreement to accept is contempora/- 
 neous with the offer to guarantee. Cahuzac v. Samini, 29 Ala., 288. 
 
 3Bh-dsall V. Heacock (Sup. Ct. Com. O.), 18 Am. L. Rec, 751; Beek- 
 man v. Hale, 17 Johns., 134.
 
 214 NOTICE BY WHICH LIABILITIES AKE CEB.^.TED. 
 
 selves, severally and jointly, to be responsible to you, at 
 any time, for a sum not exceeding $8,000, should the said 
 C. H. fail to do so." It was accordingly held that the party 
 to whom it was addressed, in order to bind the guarantor, 
 should have given him notice of the acceptance of the 
 guaranty.^ 
 
 § 393. Reason for Notice of Proposed Guaranty. — This 
 doctrine is not only supported by the almost unanimous 
 concurrence of the authorities, wherever the question has 
 been raised in connection with a case admitted to be a mere 
 proposal to guarantee,- but it is based upon the familiar 
 principle governing all contracts, that an undertaking, to 
 become binding, requires the simultaneous concurrence of 
 the minds of both contracting parties ; and where there has 
 been an offer or proposal on the one side, it is pending until 
 accepted or rejected, and notice given of such acceptance 
 or rejection by the one party, or is withdrawn by the other.^ 
 
 § 394. Absolute Guaranty, Notice Not Required. — 
 Where the distinction is observed between such contracts of 
 guaranty as are absolute and complete in their terms, and 
 such as are conditional and incomplete, notice of the assent 
 of the party who acts upon the faith of the former will 
 not be required. Thus an indorsement which recited that : 
 " For value received, I sell, assign and guarantee the pay- 
 ment of the within note to J. A. or bearer," was held an 
 absolute undertaking that the maker would pay when due, 
 or that the guarantor would pay, and that therefore he was 
 not entitled to notice, as in case of a conditional promise.* 
 
 1 Douglas V. Reynolds, 7 Pet., 113; Kay v. AUen, 9 Pa. St., 320. 
 
 2 Stafford v. Low, 16 Johns., 67, where the party expressed a willing- 
 ness to guarantee if required ; Birks v. Trippet, 1 Saund., 32, where notice 
 was made a condition of the guaranty ; also Beekman v. Hale, 17 Johns., 
 134; M'lver v. Richardson, 1 Maule & Selw., 557. 
 
 ^Ante, I, Acceptance of Proposals. 
 
 * Allen V. Rightmere, 20 Johns., 365; Bleeker v. Hyde, 3 McLean, 379; 
 Breed v. Hillhouse, 7 Conn., 523; Foster v. Barney, 3 Vt., 60; Train t?. 
 Jones, 11 Vt., 444; Russell v. Buck, id., 166; Penny v. Crane Bros. 
 Manuf. Co., 80 lU., 244; Thompson v. Glover (Ky.), 16 Cent. L. J., 16; 
 8 Rep., 589.
 
 NOTICE OF GUAKiLNTY. 215 
 
 § 395. Distinction Between Dififerent Kinds of Guaran- 
 ties. — In some of the cases where the distinction is care- 
 fully observed between different kinds of guaranties, the 
 line of demarcation isdi'awn between such as are mere pro- 
 posals to guarantee upon conditions therein expressed, and 
 others where the guarantor expressly binds himself by a 
 declaration that he does guarantee at the time.^ Other 
 cases distinguish between contracts which are specific in 
 amount and definite as to time, or onaranteeino: an existino- 
 demand, and such as are for an uncertain amount, indefinite 
 as to time, or collateral to a prospective indebtedness.'' 
 
 § 396. Uncertainty of Demand. — The latter distinction 
 is clearly laid down in a case where, after stating that the 
 principals desired to draw the letter of credit, says : " You 
 will please accept their draft for $2,000, and I do hereby 
 guarantee the punctual payment of it." On the same paper 
 was a letter addressed to the princij^als, authorizing them 
 to use the letter if they desired. While holding that this 
 was such a letter of credit as would fairly entitle the party 
 collaterally liable thereon to notice of acceptance from the 
 party to whom it is addressed, it was admitted that where 
 the contract was made guaranteeing a specific, existing 
 demand, as a note already made, notice of acceptance of 
 the guaranty would not be necessary.^ 
 
 §397. General Indelinite Letter of Credit. — Another 
 example where the contract was positive in its terms is the 
 case of Lawson v. Townes.^ Here the letter of credit was 
 of the most general and indefinite character, being ad- 
 dressed to "whom it may concern;" with no hmitation 
 either as to amount or time. It was held that the guarantor 
 could not be held liable to one making advances or extend- 
 
 lEankin v. Cliilds, 9 Mo., 673; Smith v. Anthony, 5 Mo., 504; Davis 
 Sewing Mach. Co. v. Jones, 61 id. , 409 ; Douglas v, Howland, 24 Wend., 35. 
 
 2 Leer. Dick, 10 Pet., 483; Wildes v. Savage, 1 Story, 23; Walker v. 
 Forbes, 25 Ala., 139. 
 
 3 Leer. Dick, 10 Pet., 483; citing with approval, 14 Johns., 349; and 
 Allen V. Rightmere, 20 id., 365. See, also, Taylor v. Ross, 3 Yerg., 330. 
 
 4 2 Ala., 373. See, also, Mussey v. Rayner, 32 Pick., 223.
 
 216 NOTICE BY WUICU LIABILITIES AKE CREATED. 
 
 ing credit on the faith of the document, without fkst giying . 
 notice of his acceptance and intention to act on its terms. 
 The binding portion of the instrument could not be con- 
 strued into a mere conditional proposal to guarantee ; for it 
 expresses a present undertaking to answer for the principal's 
 default. So that the only ground upon which the guaran- 
 tor's liability could have been held subject to the giving of 
 notice of acceptance was the uncertainties hereinbefore 
 adverted to.' 
 
 § 398. Definiteiiess of Amount. — A subsequent decision 
 by the same court, where the question was raised, renders 
 it quite clear that definiteness is the point upon which the 
 rio'ht of a guarantor to notice would in their estimation be 
 made to turn.^ There it was held that where the guaranty 
 is absolute in its terms, and for the payment of a definite, 
 specific demand, there was no sound reason why notice of 
 acceptance should be required to be given to the guarantor 
 to perfect his liabilit}^ And Judge Goldthwaite in deliv- 
 ering the opinion of the court declares that the English 
 cases, and the current of American authorities, are in oppo- 
 sition to the rule requiring notice in such cases. 
 
 § 399. Guaranty of Proposed Credit. — Where the party 
 originally liable on a contract for the purchase of lumber 
 to be used in building a boat, as principal, upon failure to 
 obtain credit to the amount of his contemplated purchase, 
 applied to another to assist him in obtaining such credit, 
 and made out a bill of the lumber he desired to purchase, 
 adding at the foot a request to the lumber dealer to furnish 
 the quantity stated in the bill, to which was subjoined the 
 guaranty in these words : "I hereby guarantee the paj^ment 
 of the above bill," — this was held to be such a contract as 
 would require the giving of notice of acceptance before 
 any liability would accrue against the guarantor.^ In so 
 
 1 Supra. See, also, 'Walker v. Forbes, 25 Ala., 139. 
 2 Donley v. Camp, 22 Ala., 659. 
 
 3 Rankin v. Childs, 9 Mo., 673. See, also, Smith v. Anthony, 5 Mo., 504; 
 Dobbin v. Bradley, 17 Wend., 433.
 
 NOTICE OF GUARANTY. 217 
 
 holding the learned judge delivering the opinion dwelt with 
 emphasis upon the fact that the obligation incurred was for 
 an uncertain amount, and attached to a transaction to take 
 place in the futm'e. He distinguished the case from those 
 holding the guarantor liable where notice of acceptance 
 was neither given nor required, principally on this ground. 
 In a later case by the same court, the alleged contract of 
 guaranty was embodied in a letter requesting the party to 
 whom it was addressed to advance a sum therein specified, 
 and stating that unless the request was acceded to, he would 
 feel obliged to assist the parties for whose benefit the col- 
 lateral undertaking was proposed, to procure it elsewhere. 
 This was held to be a mere proposal to guarantee, which 
 was incomplete until notice of its acceptance was received.* 
 § 400. Absolute Guaranty of Uncertain Amount. — In 
 the foregoing cases decided by the supreme court of- Mis- 
 souri, the uncertainty of the amount is considered, and 
 appears to have had no little weight with the com-t ; but in 
 the latest case to be found where the question has been 
 decided by this court, the contract was held to bind the 
 guarantor, notwithstanding notice of acceptance was not 
 given.- The terms of the guaranty were in substance that, 
 for value received, the party undertook to guarantee to the 
 plaintiff the performance of a contract previously entered 
 into between said plaintiff and one H. After referring 
 directly to the contract between their principal and the 
 plaintiff, as containing an enumeration of the acts, the faith- 
 ful performance of which they guaranteed, it was further 
 specified that they guaranteed " the payment by said H, of 
 all indebtedness, by account, note, indorsement of notes or 
 otherwise, which may arise under this contract, * * * 
 to the amount of $600." Here, it is true, the liability was 
 limited by the amount expressed in the writing, but the case 
 was decided upon the ground that, " where a party du'ectly 
 
 1 Central Savings Bank v. Shine, 48 Mo., 456. 
 2 Davis Sewing Mach. Co. v. Jones, 61 Mo., 409.
 
 218 NOTICE BY WHICH LIABILITIES ARE CREATED. 
 
 binds himself to be responsible for the fulfillment of anoth- 
 er's contract already made, no such notice can be necessary," 
 § 401. Notice of Acceptance Held Unnecessary. — The 
 
 cases already cited where absolute contracts of guaranty 
 were held to depend upon notice of acceptance, merely 
 because the obligation incurred was collateral,^ are reviewed 
 at length and criticised by Judge Cowen in Douglass v. 
 Howland.- It is there laid down that where one party 
 agrees to account and pa}?" over such sums as shall be found 
 to be owing b}'' him, and a third party guarantees that the 
 party thus agreeing shall perform his agreement, an action 
 will lie against such guarantor in case of the principal's 
 failure to pay, without notice from the creditor of his ac- 
 ceptance of such guaranty. 
 
 § 402. Contimiing Absolute Guaranty . — So, where a 
 bond was delivered, conditioned that it should be void in 
 case the principal should pay all notes made by him in favor 
 of the party taking the bond, to a certain amount therein 
 mentioned, otherwise to remain in full force and effect for 
 a term of years therein specified, this was held to be a con- 
 tinuing guaranty. It was delivered by defendants, at the 
 same time it was accepted by plaintiff ; was an original col- 
 lateral agreement, absolute in its terms, and definite both as 
 to time and amount, and was therefore complete upon its 
 delivery without notice of its acceptance being given to the 
 guarantor.* A guaranty may be continuing within a hmited 
 
 1 Russell V. Clark, Cremer v. Hlgglnson, Russell v. Perkins, Rapelye v. 
 Bailey, and Babcock v. Bryant, supra, % 389. 
 
 2 24 Wend., 35; Smith V. Ide, 3 Vt., 290; Yancey v. Brown, 3 Sneed, 
 89; New Haven Co. Bank v. Mitchell, 15 Conn., 206; True v. Harding, 
 12 Me., 193. See, also, Holbrow v. Wilkins, 1 Barn. & Cres., 10; Wildes 
 V. Savage, 1 Story, 22. 
 
 3 Farmers' & Mechanics' Ba*ik v. Kircheval, 2 Slich., 504; Ti-aiu v. 
 Jones, 11 Vt., 444. So where the guaranty expressed a nominal consid- 
 eration, was by its terms to be a continuing guaranty until counter- 
 manded, with but Umitation as to time or amount, notice of acceptance 
 was held unnecessary. March v. Putney, 56 N. H. , 34. A guaranty in 
 the following words : " We consider good for aU he may want
 
 NOTICE OF GTJAEANTT. 219 
 
 amount. And when so expressed as to bear that construc- 
 tion will be enforced, though the full amount of the credit 
 is not given at once.^ But notice of acceptance is held 
 necessary.^ 
 
 § 403. Principles Regarded as Settled.— Any attempt 
 at reconciliation of the authorities upon this question must 
 prove vain. It would be equally fruitless to undertake to 
 deduce from the authorities cited a uniform rule, without 
 entirely discarding some of the opinions expressed upon 
 mature deliberation, by judges distinguished for their learn- 
 ing and research. Some features of the question, however, 
 may be safely regarded as settled beyond question. It can- 
 not be doubted that a mere proposal to guarantee creates 
 no HabiUty imtil the proposal is accepted.^ It may further 
 be rehed upon if the contract is entered into with reference 
 to an existing demand, and is executed and dehvered con- 
 temporaneously with the principal undertaking, which is 
 for an ascertained amount, that the guaranty will be com- 
 plete and binding without notice of acceptance.^ 
 
 §404. Weight of Authority.— Where the obhgation 
 attaches to future transactions, there is a controversy wliich 
 remains undetermined ; with the United States comis, and 
 those of one or two of the New England States on the one 
 side,^ and the courts of England, ISTew York and several 
 other states of the Union on the other. Where, however, 
 
 of you, and we will indemnify the same," was held an absolute but not 
 a continuing guaranty. It boimd the parties without notice of accept- 
 ance, but only for the amount of the first pm-chase. Wliitney v. Groot, 
 24 Wend., 83; Webb v. Dickmson, 11 Wend., 6. See, also, Gard v. 
 Steveixs, 13 IVIich., 393; Congdon v. Reed, 7 R. I., 576; Baker v. Rand, 
 13 Bai-b., 153. 
 
 iMicliigan State Bank v. Peck, 28 Vt., 200; Lewis v. Dwight, 10 
 Ck)nn., 95. 
 
 2 Tuckerman v. Fi-ench, 7 Greenl., 115. 
 
 3 Supra, §§391, 393. 
 * Supra, §§394, 396. 
 
 5 In some of the cases cited, the fact that the ti-ansactions are in the 
 future are considered, but only in connection with other circumstances 
 held to be sufficient to entitle the guarantor to notice.
 
 220 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 the undertaking is absolute in its terms, to pay unless the 
 principal obligation is f uliQUed, and there is a limit both as to 
 time and amount, the weight of authority is decidedly in 
 favor of holding the guarantor on his contract, although 
 no notice of acceptance was giv^en.^ The same may be said 
 of continuing guaranties generally, which are absolute in 
 their terms.- 
 
 § 405. Rule as to Indefinite Letters of Credit. — Upon 
 the other hand, where the collateral liability arises on a let- 
 ter of credit generally or specially addressed, which is in- 
 definite as to the amount, and the time within which the 
 credit or future advances are to be extended or given; 
 although the language of the instrument may be technic- 
 ally consistent with the idea of a present, absolute under- 
 taking, as distinguished from a mere proposal to guarantee, 
 except where it is a continuing guaranty, the party exe- 
 cuting such instrument should not be held liable thereon, 
 without notice, express or implied, of the acceptance of the 
 guaranty ; unless there had been a previous understanding 
 that the credit would be given in case it w^as authorized by 
 the guarantor.' 
 
 § 406. Time of Giving Notice of Acceptance. — Even 
 where the notice is held necessary, the courts have gener- 
 ally been quite liberal as to the time within which it should 
 be given. It is not always essential that it should be given 
 prior to acting upon the faith thereof, but may be in a 
 reasonable time thereafter.* 
 
 § 407. Notice of Action on Guaranty. — Next, as to no- 
 tice of the action taken by the party demanding the indem- 
 nity, upon the faith of the guaranty. It is not the notice 
 
 1 Supra, §§ 394, 396, and cases cited. 
 
 2 Supra, § 403. 
 
 * Or, as in Drummond v. Pi*estman, 12 Wheat. , 515, where the 
 guaranty acknowledged the credit akeady received by the principal. 
 See Anderson v. Blakely, 3 W. & S., 237; Aldricks v. Higgins, 16 S. & 
 R., 212. 
 
 ■•Douglass V. Reynolds, 7 Pet., 113; Louisville Manufacturing Co. v. 
 Welch, 10 How. (U. S.), 461 ; Thompson v. Glover, 8 Rep., 589.
 
 NOTICE OF GUAEANTr. 221 
 
 which is sometimes required, simply that the party to whom 
 the writing is addressed has acted upon the faith of the 
 guaranty by making the sohcited advances or extending 
 the desired credit, which comes up for consideration here. 
 Notice of such advances, within a reasonable time, is gen- 
 erally treated as equivalent to antecedent notice of the ac- 
 ceptance of the guaranty.^ Where the undertaking is in 
 the form of a letter authorizing future advances in cash, 
 or the extension of credit, by indorsement of commercial 
 paper or otherwise, and the letter is intended to cover suc- 
 cessive transactions, in sums of various magnitude, as the 
 exigencies of the business to be transacted may demand, it 
 has been claimed that the guarantor was entitled to notice 
 of each transaction as it occurred. This claim, however, 
 except where the terms of the letter of credit specially re- 
 quire it, cannot be maintained,^ 
 
 §408. Change of Manner of Reimbursement. — The 
 nearest approach to a holding, that the party acting upon 
 the faith of such a letter was required to submit the details 
 of the business transacted to the guarantor, is found in Ed- 
 monston v. Drake,^ There the parties extending the credit 
 Avere merchants in Havana, who, however, were not the 
 ones to whom the letter was specially addressed, Notice 
 of the first transaction, which was a purchase of the prod- 
 uce of the island, pursuant to the order of the party in 
 whose favor the letter was written, was duly sent to the 
 guarantor, specifying the manner in which payment was to 
 be made — by bills on New York. This was promptly ap- 
 proved by the guarantor, in language which would clearly 
 imply his satisfaction at the course pursued by the Havana 
 correspondents, and would place them upon precisely the 
 same footing with respect to the letter of credit as though 
 it had been originally addressed to them. The letter itself 
 did not specify any particular manner in which payment 
 
 iBeU V. Kellor, 13 B, Mon,, 381; Adams v. Jones, 12 Pet., 207, 
 
 2 Douglass V. Reynolds, supra, § 406 ; Lowe v. Beckwith, 14 B. Mon., 184. 
 
 3 5 Pet., 634.
 
 222 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 was to be made to reimburse the merchants extending the 
 accommodation, but upon further advances being made by 
 them, within the limits of the credit authorized, to be paid 
 for by bills drawn upon London, wliich change was ap- 
 proved by the party in whose favor the credit was given, 
 it was held that, as this alteration in the manner of reim- 
 bursement was not submitted to and approved by the guar- 
 antor, he did not incur any liability thereby. Mr. Chief 
 Justice Marshall, in rendering the decision,' regards the 
 notice of acceptance of the guaranty as a part of the con- 
 tract betAveeu the jiarties, and the fact that the change was 
 made in the interest and with the consent of their custo- 
 mer as of no consequence, as neither of them had a right 
 to vary a contract for their own advantage at the hazard 
 of the guarantor. 
 
 § 409. Report of Particular Transactions Not Gen- 
 ally Required. — If the liabilit}'- of the guarantor in this 
 case is referred to the correspondence between the parties, 
 commencing with the notice to the guarantor, the justice 
 of this decision may well rest upon the ground that the ap- 
 proval of the substitution of parties who were to act upon 
 the letter, being in response to the notice, might be sup- 
 posed to adopt the contents of the notice, including the 
 manner and place of payment, as conditions upon which 
 such change was approved. But had the advances been made 
 by one to whom the letter was originalh^ addressed, there 
 being no conditions attached to the guarant}^, whereby the 
 guarantor was to exercise a continual supervision of succes- 
 sive transactions, the manner and place of payment, as well 
 as other matters of detail, might have been arranged be- 
 tween the parties immediately interested, without notice to, 
 or consent of, the party collaterally liable.^ 
 
 §410. Notice of State of Accounts on Demand.— Al- 
 though the ultimate liability of a guarantor, in case of a 
 continuing guaranty, may not depend upon his receiving 
 
 15 Pet., 638. 
 
 2 Lowe V. Beckwith, 14 B. Mon., 184
 
 NOTICE OF GUAEAXTT. 223 
 
 notice of each successive transaction had upon the faith of 
 such guaranty, it is doubtless true that upon demand made 
 by him therefor, he would be entitled to information con- 
 cerning the state of the accounts between the party extend- 
 ing the credit and the one originally liable as principal. 
 His interest in having such knowledge or information could 
 not be questioned. Such contracts are not generally made 
 in anticipation of default by the principal, and are fre- 
 quently based upon a private understanding between the 
 guarantor and the part}^ for whose benefit the guaranty is 
 made. The information obtained by the guarantor, upon 
 inquiry, might be suificient to warrant him in refusing to be 
 liable for f mother advances, and in withdrawing his guaranty, 
 which he might do by notice that he will be no longer 
 responsible.^ 
 
 § 411. Notice of Principal's Failure. — Finall}-, as to 
 notice of the principal's failure to perform. This branch 
 of the question is strangely confused by some of the author- 
 ities, with that which has reference to the notice of accept- 
 ance. Cases are cited and opinions referred to in support 
 of the doctrine requiring or dispensing with notice of the 
 acceptance of a guaranty, and of the subsequent demand 
 and non-payment by the principal, interchangeabl}', as 
 though they were one and the same thing. It is true that 
 the general purpose of the notice in both cases is that the 
 guarantor may be advised of his liability. Here, however, 
 the parallel ends. In the one case the notice is intended to 
 render the guarantor liable in case of another's default; in 
 the other he is notified that default has been made, and he 
 becomes hable as though he were a principal. The notice 
 of acceptance, when required at all, is essential to the com- 
 pletion of the contract of guaranty. The notice of the 
 principal's failure is of the happening of the only contin- 
 gency to the creation of a liabiUty such as would arise from 
 an original, absolute contract, of Avhich the consideration 
 had passed directly to the obligor; it advises the guarantor 
 
 1 Mason v. Pritchaxd, 2 Camp., 436.
 
 224 NOTICE BY AVniCII LIAEILITILS AKE CREATED. 
 
 that the acceptor of the guaranty has a direct personal de- 
 mand against him. Both branches of the question, how- 
 ever, are often decided in the same case.^ 
 
 § 412. Conflict of Authority. — The authorities are very 
 conflicting as to whether guarantors, distinctly recognized 
 as such, are entitled to notice of the principal's failure to 
 perform in any event. And where it is held tliat they are 
 entitled to notice, there is no little contrariety of opinion 
 as to the character of the notice to be given. 
 
 § 418. Early Massachusetts Authorities. — It is laid 
 down so repeatedly in the state of Massachusetts in some of 
 the earlier cases, that the guarantor is entitled to notice of 
 a demand upon the principal and non-payment by him, that 
 it was at one time regarded as a settled rule of law in that 
 state, which did not depend upon the natm'e of the collat- 
 eral undertaking so long as it was governed by the rules 
 affecting guaranties.^ This conclusion is clearly deducible 
 from the authorities cited as well as others from the same 
 court, particularly that of Babcock v. Bryant,^ where it was 
 held that a failure to prove such notice was sufficient to de- 
 feat plaintiff's action against the guarantor, although it did 
 not appear that there had been such a change in the cir- 
 cumstances of the principal defendant, subsequent to the 
 maturity of the obligation, as to work injury to his guar- 
 antor, or to discharge him from liabihty. 
 
 §414. Demand and Notice Held Necessary. — So in 
 Isley V. Jones,* where the action was on a guaranty for 
 the payment of the purchase price of goods sold, it was 
 held that the plaintiff must allege and prove that a demand 
 had been made upon the purchaser and that he failed 
 or refused to pay the amount of the demand. On excep- 
 
 1 LouisTille Manuf. Co. v. Welch, 10 How., 461. 
 
 2 Oxford Bank v. Hajoies, 8 Pick., 423; Babcock v. Bryant, 12 id., 133; 
 Dole V. Young, 24 id., 250; Isley v. Jones, 12 Gray, 260; Talbot v. Gay, 
 18 Pick., 534. 
 
 3 Supra. 
 
 * Supra, % 413.
 
 NOTICE OF GUARANTY. 225 
 
 tions taken to the ruling of the trial court, that notice to 
 the guarantor of such demand and refusal of the principal 
 to comply was not essential to the right of action on the 
 collateral undertaking, the exceptions were sustained by the 
 appellate court. 
 
 § 41 5. Later Authority — Contra to Above. — In a later 
 case, however, by the same court, the doctrine laid down 
 seems to ver}^ materially modify the rules tlieretofore recog- 
 nized in that state with reference to the conditions of a 
 guaranty, if it does not abrogate the rule entirely as applied 
 to the question of notice.^ Judge "Wells, in delivering the 
 opinion of the com-t, says:- " The better doctrine, and that 
 which seems to us the best supported, both upon reasoning 
 and authority, is that demand and notice are not essential 
 prerequisites to an action, and need not be alleged nor proved 
 unless the terms of the guaranty, or the nature of the thing 
 guaranteed, require such proceeding in order to a proper 
 fulfillment of the obligations imposed by the guaranty, 
 upon the party holding it, or in order to establish a default 
 by the principal, and a breach of the contract declared on. 
 The necessity of such demand and notice is not incidental 
 to the relation of guarantor and guarantee, as it is to that 
 of indorser and indorsee. It must be derived, if it exist, 
 from the terms of the contract or the nature and circum- 
 stances of the particular case, and not from the general 
 rule." The case under review was an action on a guaranty 
 of the payment of rents, in the following language : " I 
 hereby guarantee that G. D. B. shall pay to A. Y. $3 per 
 week in advance for rent of house, ]N"o. 9 Yinal Place ; also 
 $1 per week for back rent now due, * - * this agi^ee- 
 ment to hold good for nineteen weeks, or until the back 
 rent has been paid," The doctrine laid down in the opin- 
 ion was applied by the learned judge, who ably reviewed 
 prior authorities, to the circumstances of this case, by hold- 
 ing that as the contract provided for the payment of cer- 
 
 1 Vinal V. Richardson, 13 Allen, 521. 
 
 2 Id., 527. 
 
 15
 
 226 NOTICE BY WHICH LIABILITIES ARE CREATED. 
 
 tain sums at certain times, fixed and absolute by the 
 guaranty itself, it rec[uired no act of the plaintiff to precede 
 the performance of the principal, except permission to 
 occupy. ISTon-payment by the principal was at once a 
 breach of his contract and that of his guarantor. The obli- 
 gation to pay did not depend upon demand, and hence the 
 guarantor's Uability could not bo made to depend upon notice 
 of such demand. The case of Isley v. Jones ^ is expressly 
 overruled, in so far as it differs from this, and other prior 
 cases in conflict must, by implication, be regarded as shar- 
 ing the same fate. 
 
 § 416. Indiana Authorities. — In Virden v. Ellsworth,^ 
 which was an action on the following contract of guaranty : 
 " For value received, I guarantee the paj^ment of the rent 
 as stipulated by said F., in case of non-payment by him," 
 the complaint was held bad on demurrer, for the reason 
 that it contained no special averment of notice to the guar- 
 antor of the non-payment of the rent, "or any excuse 
 sho"\vn for the failure to give such notice or aver it." Such 
 notice w^as also held essential in ah earlier case by the same 
 com*t, w^here the action was on a guaranty of payment of 
 the purchase price of goods sold and delivered.^ Here, how- 
 ever, it appeared that the guarantee had been guilty of 
 laches, by which the guarantor w^as damaged, the principal 
 being solvent at the time of his default, but becoming insolv- 
 ent before the institution of tlie suit on the contract of 
 guaranty. Subsequently, in a case where notice was not 
 given until nearly a year after the principal's default, w^here 
 the question of damage to the guarantor, by the delay, was 
 not raised, it was held by the same court that the guarantor 
 was liable.'* The agreement contained an express promise 
 to pay or secure a certain sum of money, and the collateral 
 undertaking was an absolute guaranty that the principal 
 
 1 Supra, § 413. 
 
 2 15In(i., 144. 
 
 3 Smith V. Bainbridge, 6 Blackf., 12. 
 ♦Leonard v. Shirts, 33 Ind., 214.
 
 NOTICE OF GUAEANTY. 227 
 
 "would comply with the terms of his contract. It was held 
 by the court that the securing of the indebtedness was a 
 matter for the protection of the guarantors, and the duty 
 rested upon them to see that it was done, and for that reason 
 they could not object to the delay in giving notice. In a 
 still later case, it was decided upon the authority of Smith 
 v. Bainbridge^and Yirden v. Ellsworth,^ that where it ap- 
 peared that owing to the negligence of the plaintiff in pur- 
 suing his remedy against the principal, or notifying the 
 guarantor of the principal's default, the guarantor lost his 
 remedy against the principal by the latter's insolvency, such 
 guarantor would be discharged.' In this case the opinion 
 of the court is expressly reserved as to what might be the 
 rule as to notice in a case presenting a different state of 
 facts." 
 
 §417. Negligence of Griiarantee. — The foregoing au- 
 thorities leave the doctrine to turn upon a question of neg- 
 ligence of the guarantee, by which the guarantor suffers 
 detriment — or rather would suffer detriment, if he were 
 still held on his contract of guaranty. There are also 
 numerous other cases, both American and English, where 
 the same distinction is observed.'^ 
 
 § 418. Rule in Connecticut — Absolute Gruaranty. — 
 There are other cases of guaranty where it is held that no- 
 tice is unnecessary, for the reasons assigned in the summary 
 of the doctrine contained in Yinal y. Richardson.^ As, 
 where the principal contracted with the guarantee to pur- 
 chase and pay a stipulated price for a certain number of 
 trees which the guarantee' undertook to cultivate for him, 
 
 1 Supra. 
 
 "^ Supra. 
 
 3 Gaff V. Sims, -15 Ind., 262. 
 
 •* Opinion of Downey, C. J., id., 266. 
 
 sGibbs V. Cannon, 9 Serg. & R., 198; Woods v. Sherman, 71 Pa. St., 
 100; Sears v. Van Dusen, 25 Mich., 351; Green v. Thompson, 33 la., 293; 
 Janes v. Scott, 59 Pa. St., 178. 
 
 s 13 Allen, 521; Gage v. Lewis, 68 Dl., 604; Lamphere v. (Jowen, 43 
 Vt., 175.
 
 228 NOTICE BV ^VIIIC^ liabilities are created. 
 
 and to deliver at a certain time, and in default of compliance 
 with the terms of the contract the party so failing should 
 forfeit and pay to the other a certain stipulated sum. This 
 contract Avas guaranteed on behalf of the principal in these 
 words : " In case B., one of the parties named in the fore- 
 going instrument, should incur the forfeiture mentioned 
 therein, I hereby guarantee the payment of the same." It 
 was held that the guarantor was not entitled to notice of 
 the principal's failure.^ Here the act guaranteed was to be 
 done by a third person who was known. The guarantor 
 knew its terms and the time of performance as well as the 
 guarantee, and could have ascertained by inquiry whether 
 the forfeiture had been incurred by his .principal, so that 
 notice to him was unnecessary.- This case also involved 
 the question as to whether the rule would be changed by 
 the subsequent insolvency of the principal, and it was de- 
 cided that the guarantee was not required to use diligence 
 in proceeding against the principal, and the fact that the 
 latter disposed of his property out of which the debt might 
 have been made, subsequent to the forfeiture, would not 
 discharge the guarantor. 
 
 § 419. Uncertainty of Amount. — The only material 
 difference between the foregoing case and that of Craft v. 
 Isham,'' previously decided by the same court, was that the 
 amount in the case last cited was uncertain, though strictly 
 limited to a specified sum. The time fixed for payment 
 was at the end of three years. The contract was as uncon- 
 ditional as a guaranty can be — to pay in case the principal 
 failed to do so. The credit on the last item furnished 
 under the guaranty expired in about one year fi'om the date 
 of the guaranty. In about eighteen months thereafter the 
 
 1 Hammond v. Gilmore, 14 Comi., 479. 
 
 2 Farm. & Mech. Bank v. Kercheval, 2 IVIich., 504; Ward v. Henry, 
 5 Conn., 595; Breed v. Hillliouse, 7 Conn., 523; Williams v. Granger, 
 4 Day, 444; Wright v. Simpson, 6 Ves. Jr., 714^34; Duffield v. Scott, 
 3 T. R., 374; Vyse v. Wakefield, 6 Mees. & W., 443; Brackett v. Ricli. 
 23 Minn., 485. 
 
 313 Conn., 28.
 
 NOTICE OF GUARANTY. 229 
 
 principal became insolvent, but notice was not given of his 
 failure to pay until six months after the expiration of the 
 three years. It was held that the guarantor was entitled 
 to notice within a reasonable time of the principal's default, 
 and that the time in which it was given in this case was not 
 reasonable. The court in this case foUows the decisions of 
 the United States courts already cited, as well as the early 
 Massachusetts cases, and the manner in which the case of 
 Hammond v. Gilmore ^ is distinguished from that of Craft 
 V. Isham ^ is that the latter was a case of guaranty by a let- 
 ter of credit, and the amount involved was unliquidated. 
 
 § 420. Means of Knowledge Within Reach of Guar- 
 antor. — In a recent case decided in Missouri, where the 
 guaranty was of the collectibility of certain notes, it was 
 decided that notice was unnecessary.' Judge Wagnek, in 
 rendering the oj^inion of the court, lays it down that when 
 a guarantor binds himself to be answerable for a specific 
 sum, under certain designated circumstances, he has the 
 means within his own hands of determining the extent of 
 his obligations. The learned judge makes the following apt 
 quotation from Lord Abinger in Yyse v. Wakefield : * " The 
 rule to be collected from the cases seems to be this : that 
 when a party stipulates to do a certain thing, in a certain 
 specific event which may become known to him, or with 
 which he can make himself acquainted, he is not entitled to 
 notice unless he stipulates for it ; but where it is to do a 
 thing which lies within the peculiar knowledge of the oj^po- 
 site party, then notice ought to be given him." ^ 
 
 ^ Supra, §418, 
 ^ Supra. 
 
 3 Barker v. Scudder, 56 Mo., 272. 
 
 4 6Mees. «& W., 442. 
 
 5 See, also. Clay v. Edgerton, 19 Ohio St., 549; Marvin v. Adamson, 11 
 la., 371; Hough v. Gray, 19 Wend., 202; Heaton v. Hulbert, 4 lU., 489; 
 Partridge v. Davis, 20 Vt., 499; Sample v. Martin, 46 Ind., 226; Burnham 
 V. Gallentine. 11 Ind., 295; Watson v. Beabout, 18 Ind., 281 ; Studebaker 
 V. Cody, 54 Ind., 586; Prentiss v. Garland, 64 Me., 155; Bashford v. 
 Shaw, 4 Ohio St., 263.
 
 230 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 § 421. Pennsylvania Doctrine. — The distinctioii observed 
 by the supreme court of Pennsylvania between contracts 
 of guaranty and contracts of suretyship is one which, how^- 
 ever well founded in reason, would tend to mislead the in- 
 quirer as to the views of that court upon the question of 
 notice to guarantors, if their decisions of the question are 
 to be interpreted by the definition of the term " guaranty " 
 which seems to prevail elsewhere. There the term is re- 
 stricted in its application to such contracts as warrant the 
 abihty of the principal to pay or perform. It is simply an 
 undertaking that the principal will be solvent w^hen the 
 obhgation matures, or what would elsewhere be construed 
 as a guaranty of collectibility ; while that w^hich we have 
 follow^ed the authorities of other states in treating as an 
 absolute or unconditional guaranty of payment or perform- 
 ance by one originally liable as a principal, is there regarded 
 as a contract of suretyship.^ 
 
 § 422. Guaranty and Suretyship. — It does not seem to 
 be material that the words " guarantee "or " guaranty " are 
 used m. the undertaking ; it will not be construed as a guar- 
 anty for that reason if it imports an absolute undertaking 
 to be responsible for the payment or discharge of the obli- 
 gation by the principal.- In the case cited Judge Shaes- 
 wooD remarks : ' " The leaning ©f this com't of late years 
 has, therefore, very properly been against construing such 
 contracts to be general guaranties." The language of the 
 contract under consideration was as f oUow^s : " I do hereby 
 guarantee to S. & Co. the payment of contract made by 
 them with D. & W. to the amount of $10,000." Though the 
 question was not properly before the court, it being unnec- 
 essary to a decision, the learned judge plainly intimated that 
 
 1 Reigart v. White, 52 Pa. St., 438; Brown v. Brooks, 25 id., 2^10; John- 
 ston V. Chapman, 3 Pa., 18; Isett v. Hoge, 2 Watts, 128; Rudy v. Wolf, 
 16 Serg. & R., 79; Kramph v. Hatz, 52 Pa. St., 525; Ashton v. Bayard, 
 71 Pa. St., 139; Woods v. Sherman, 71 Pa. St., 100. 
 
 2 Woods r. Sherman, 71 Pa. St., 100. 
 
 3 Id.. 104.
 
 NOTICE OF GUAEANTY. 231 
 
 had it been raised this would have been construed as a con- 
 tract of suretyship, upon which the obligor would be liable 
 to the party for whose security it was given without ante- 
 cedent notice of the principal's default. ^ Where, therefore, 
 we find the authorities of this state holding that notice of 
 the principal's default is necessary to hold the guarantor on 
 his contract, and that the remedy must first be exhausted 
 against a solvent principal before an action can be main- 
 tained against the guarantor, it should be understood as 
 applying only to contracts guaranteeing the principal's solv- 
 vency.2 
 
 § 423. Deductions from Authorities. — From a consid- 
 eration of the reported cases bearing upon the question, the 
 current of authority seems to be decidedly in favor of the 
 doctrine that where the contract of guaranty contemplates 
 indemnity to the guarantee in a certain sum, or a sum capa- 
 ble of being ascertained Avith readiness by the guarantor, 
 within a certain time, and depending upon the single con- 
 tingency of the principal's failure to perform, notice of such 
 failure is not a condition precedent to the guarantee's right 
 of recovery a'gainst the guarantor. "Where the guaranty is 
 of the pa3Tnent of a promissory note, or other demand, for 
 a fixed sum, already owing by the principal, and the con- 
 tract of guaranty is expressed in the usual form, the rule is 
 more uniform. In fact, the later authorities are almost, if 
 not quite, unanimous in holding that notice in such cases is 
 unnecessary.' But where the obligation guaranteed is of 
 future performance, and the amount is uncertain within a 
 limit, there is a disagreement wliich we shall not endeavor 
 
 iSee, also, Amsbaugh v. Gearhart, 11 Pa. St., 482; Marberger v. 
 Pott, 16 id., 9; Campbell v. Baker, 46 id., 243; Allen v. Hubert, 49 id., 
 259. 
 
 2 See, also, Clay v. Edgerton, 19 Ohio St., 549; Marvin v. Adamson, 11 
 la., 371; Hough v. Gray, 19 Wend., 202; Heaton v. Hulbert, 4 111., 489; 
 Partridge v. Davis, 20 Vt., 499; Sample v. Martin, 46 Ind., 226; Burn- 
 ham V. Gallentine, 11 Ind., 295; Watson v. Beabout, 18 Ind., 281 ; Stude- 
 baker v. Cody, 54 Ind., 586; Prentiss v. Garland, 64 Me., 155. 
 
 3 Parman v, Brewster, 15 Gray, 271.
 
 232 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 to reconcile. However, the current of modern American 
 and Euglisli autliority is against the observance of the dis- 
 tinction predicated simply upon the fact that the sum of 
 the principaFs liability actually incurred is uncertain.^ 
 
 §424. Obligation Uulimited and Uncertain. — Where, 
 however, the obligation assumed by the principal is not 
 only uncertain in amount within a fixed limit, but is un- 
 limited, and for an uncertain time, or depends upon other 
 contingencies besides the failure of performance of the 
 principal, the knowledge of the happening of which from 
 the circumstances would properly be with the guarantee, 
 notice of the accruance of the liability as well as notice of 
 t]ie acceptance of the guaranty should be given the guar- 
 antor within a reasonable time, and such notice should be 
 at least approximately certain as to the amount of the 
 principal's indebtedness for which the guarantor is collater- 
 ally hable. 
 
 §425. Notice Not as of Dishonor of Commercial 
 Paper. — In no case is it held that the guarantor is entitled 
 to notice within the time, or according to the formalities 
 required in order to bind drawers and indorsers of commer- 
 cial paper. Even where such notice has been held essential 
 to the hability of guarantors, the courts have been liberal as 
 to the time in which it should be given ; ^ and have even 
 held that it would be sufficient when given after the suit, 
 commenced without it, had been discontinued, provided the 
 guarantor had not suffered detriment by the delay .^ 
 
 §426. Notice Excused — Reasonable Time. — And in 
 cases decided by the courts of highest authority, where it 
 is held necessary to give notice to the guarantor of the 
 principal's default, it is held that where the principal, at 
 the maturity of the demand, has become insolvent, and 
 utterl}^ incapable of responding to the claim, notice will be 
 excused, and even when necessary the time within which it 
 
 1 Holbrow V. WUkins, 1 B. & C, 10. 
 2Babcock v. Bryant, 12 Pick., 133. 
 3 Dole V. Young, 24 Pick., 250.
 
 NOTICE OF GUAKANTY. 233 
 
 is given will be held reasonable or unreasonable, according 
 to the circumstances of the parties and the probabilities of 
 injury to the guarantor by reason of the delay .^ 
 
 § 427. Waiyer of Notice.— It seems hardly necessary to 
 add that in any case where the fact of the principal's de- 
 fault is well kno^vn to the guarantor, or where he, in antici- 
 pation of such default, either expressly or by implication 
 waives notice, he cannot afterwards take advantage of a 
 technical failm^e to notify him of such default." And the 
 same doctrine as to waiver and excuse of notice would apply 
 with equal force to notice of acceptance of guaranty. 
 
 1 Louisville Manufac. Co. v. Welch, 10 How., 461 ; Bebee v. Dudley, 26 
 N. H., 249; Walker v. Forbes, 25 Ala., 139; March v. Putney, 56 N. H., 
 34; Fegenbush v. Lang, 28 Pa. St., 193, Bull v. BUss, 30 Vt., 127; Dole 
 V. Young, 24 Pick., 250. 
 
 2 Bickford v. Gibbs, 8 Cush., 154.
 
 234: KOTICE BY WHICH LIABILITIES AKE CKEATED. 
 
 III. Notice of Assignment of Choses in Action. 
 
 § 428. Definition of Glioses ia Action. 
 
 429. Not Assignable at Common Law. 
 
 430. Assignment Ti'ausfers Claim. 
 
 431. Assignee Takes Subject to Equities. 
 
 432. Effect of Notice. 
 
 433. Assignment Incomplete Without Notice, 
 
 434. Held Necessary as Against Creditors. 
 
 435. Object of Notice. 
 
 436. Assignee Takes No More than Assignor Had. 
 
 437. By ^Vliom Notice Given — Manner of Giving Notice. 
 
 438. EJiowledge Presumed. 
 
 439. Put Upon Inquuy. 
 
 440. Double Purpose of Notice — Laches of the Assignee. 
 
 441. Overdue Bills. 
 
 442. Negotiable Paper Without Lidorsement. 
 
 443. Balance Due on Account. 
 
 444. Pohcies of Insurance. 
 
 445. Notice to Insurer. 
 
 446. Conditions of Pohcy. 
 
 447. Assignments of Subject of Insurance. 
 
 448. By Eetiring Partners. 
 
 449. Notice May be Implied. 
 
 450. Assignment After Loss. 
 
 § 428. Definition of Glioses in Action. — The definition 
 of choses in action, as given by Mr. Blackstone, only in- 
 cludes debts due or damages recoverable for the breach of 
 a contract, express or implied.^ But later authorities have 
 enlarged the definition so as to embrace all rights to per- 
 sonal property not in possession, which may be enforced by 
 action, whether the owner has been deprived of such pos- 
 session b}^ the tortious acts of another, or by the breach of 
 an express or impUed contract.^ 
 
 12B1. Com., 396-7. 
 
 2Gillet V. Faircliild, 4 Den., 80; HaU v. Robinson, 2 Comst. (N. Y.), 
 293; North v. Turner, 9 S. & R., 244; Jordan v. Gillen, 44 N. H., 424; 
 Griffin V. WUcox, 21 Ind., 370; Final v. Backus, 18 Mich,, 218; More r 
 Massini, 32 Cal., 590.
 
 NOTICE OF ASSIGNMENT OF CHOSES IN ACTION. 235 
 
 § 429. Not Assignable at Common Law. — It is a rule 
 of the common law, too familiar to require citation or illus- 
 tration, that rights of this nature are not assignable, so as 
 to allow the assignee to maintain an action for the thing 
 assigned in his own name. But courts of equity and modern 
 statutes have virtually abrogated this rule. The law mer- 
 chant has established a different doctrine with respect to 
 negotiable instruments assigned before maturity ; but in so 
 far as the doctrine of notice affects commercial paper, it is 
 treated at length in a subsequent chapter.^ 
 
 § 430. Assignment Transfers Claim. — The notice re- 
 quired in cases of assignment cannot be said in the strictest 
 sense to create a liability. The original liability is created 
 when the obligation is incmTed by the debtor. The assign- 
 ment merely transfers the claim from the original creditor 
 to his assignee, and notice to the debtor imposes upon him 
 an obligation to recognize the transfer, and pay the amount 
 due to the assignee.^ 
 
 §431. Assignee Takes Subject to Equities. — One of 
 the incidents of assignments of demands not recognized as 
 negotiable, according to the law merchant, as well as over- 
 due negotiable paper, is that the assignee takes subject to 
 all equities subsisting between the parties at the time.* The 
 debtor is entitled to all credits for pa^^ments, as well as all 
 set-offs which he may have against his original creditor.^ 
 Even after the assignment has been made, the debtor, being- 
 ignorant of that fact, will be protected in making payment 
 of the debt in whole or in part,^ or in any set-off to the de- 
 
 ^Post, ch. X. 
 
 2 Jones V. Witter, 13 Mass., 304; Eodick v. Gandell, 1 De G., M, & G., 
 763; In re Way's Tnists, 2 De G., J. & S., 365; Donaldson u. Donaldson, 
 Kay, 711; Southard v. McBrown, 63 Cal., 545. 
 
 ^Sanborn v. Little, 3 N. H., 359. 
 
 *Ford V. Stuart, 19 Johns., 342; Bank of Niagara v. McCracken, 18 
 Johns., 493 ; Gould v. Chase, 16 Johns., 226 ; Hackett v. Maitin, 8 Me., 77. 
 
 5 Murray v. Lylburn, 2 Johns. Ch., 441; Livingston v. Dean, id., 479; 
 Davis V. Barr, 9 S. & R., 137; Mangles v. Dixon, 3 H. L. Cas., 703; Life 
 Ins. Soc'y v. Pooly, 5 Jur., N. S., 129; Faull v. Tinsman, 36 Pa. St.,
 
 23G NOTICE BY WHICH LIABILITIES AEE CREATED. 
 
 mand he may have acquired. ^ The right of the assignee, 
 except where the assignment is authorized by statute, being 
 equitable rather than legal, no court of equity would be 
 willing to interpose in his behalf, where the consequence 
 would be to subject the innocent debtor to the hardship of 
 being compelled to make double payment of the demand.^ 
 Where the cliose in action is not negotiable, the debtor may 
 avail himself of any defenses he ma}'' acquire prior to the 
 notice of assignment.* 
 
 § 432. Effect of Notice. — But after the debtor has re- 
 ceived notice of the assignment of the demand, he cannot 
 discharge any portion of the indebtedness by payment to 
 the assignor.* Kor can he acquire au}" defense to an action 
 for the debt assigned, as between himself and the assignor. 
 
 108; Hogan v. Black, 4 Pac. Eep., 943; Bishop v. Gai'cia, 14 Abb. Pr., 69; 
 Loudon V. Tiffany, 5 Watts & S., 367; Kider v. Johnson, 20 Pa. St., 190; 
 KeUogg V. Smith, 26 N. Y., 18; Reed v. Marbley, 10 Paige, 409; Van 
 Keuren v. Corkins, 66 N. Y., 77; N. Y. Life Las. Co. v. Smith, 2 Barb. 
 Ch., 83; Upton v. Moore, 44 Vt., 552; Atkinson v. Runnells, 60 Me., 440; 
 Brashear v. West, 7 Pet., 608; Cook v. Mut. Ins. Co., 53 Ala., 37. 
 
 1 Myers v. Davis, 23 N. Y., 489; Barlow v. Myers, 64 N. Y., 41; Frick 
 V. White, 57 N. Y„ 103; Adams v. Rodermel, 19 Ind., 839; Morrow's 
 Assignees v. Bright, 20 Mo., 298; Miller v. Florer, 15 Ohio St., 148; Rich- 
 ards V. Daily, 34 Iowa, 427; Norton v. Foster, 12 Kans., 44; Harris v. 
 BarweU, 65 N. C, 534. 
 
 2 Comstock V. Farnum, 3 Mass. , 96 ; Stocks v. Dobson, 19 E. L. & E. , 
 96; Hatch v. Dennis, 10 Me., 244. 
 
 3 Western Bank v. Sherwood, 29 Barb., 383; Andrews v. Gillespie, 47 
 N. Y., 487; Waruzer v. Carr, 76 N. Y., 526; Ingraham v. Disborough, 47 
 N. Y., 421 ; Reeves v. Eamball, 40 N. Y., 299 ; Kameua v. Huelbig, 23 N. 
 J. Eq., 78 ; Barney v. Grover, 28 Vt., 391 ; Kleeman v. Frisbie, 63 111., 482 ; 
 Ainslee v. Boynton, 2 Barb. , 258 ; Bank v. Fordyce, 9 Pa. St. , 275 ; An- 
 drews f. McCoy, 8 Ala., 920; Martin v. Richardson, 68 N. C, 255; Jordan 
 V. Black, 2 Murph. (N. C), 30; McKinne v. Rutherford, 1 Dev. & Bat. 
 iiq., 14; Moody v. Setton, 2 Ired. Eq., 383; Jeffries v. Evans, 6 B. Mon., 
 119; Ragsdale v. Hogg, 9 Graft., 409; HaU v. Hickman, 3 Del. Ch., 318. 
 
 ^Fanton v. Fairfield Co. Bank, 33 Conn., 485; Jones v. Witter, 13 
 Mass., 304; Raymonds. Squire, 11 Johns., 47; Small v. Browder, 11 B. 
 Mon., 313; Pollard v. Somerset Mut. Fire Ins. Co., 43 Me., 331; Fay i\ 
 Jones, 18 Barb., 340; Succession of Risley, 11 Rob. (La.), 298; Noblo u. 
 Thompson OU Co., 79 Pa. St., 354.
 
 KOTICE OF ASSIGNMENT OF CHOSES IN ACTION. 237 
 
 § 433. Assignment Incomplete Without Notice. — In 
 
 one case, while admittino; that the weig-ht of American 
 authority seemed to favor the doctrine that the assignment 
 of a chose in action was complete in itself and vested a per- 
 fect title in the assignee as against third persons, the court 
 maintained that the contrary was the settled doctrine of 
 the English and some of the American courts, and in that 
 case chose to follow the English as the more reasonable and 
 practical rule.^ It was accordingly there held that the 
 assignment of a cliose in action was not complete so as to 
 vest the title absolutely in the assignee until notice to the 
 debtor of the assignment. And therefore, as between 
 successive purchasers or assignees, he would be entitled to 
 preference who first gave notice to the debtor, though he 
 held by an assignment subsequent to that of the others.' 
 
 § 434. Held Necessary as Against Creditors. — So it 
 has been held that notice is not only necessary to render 
 such assignment binding upon the debtor, but that he 
 
 1 Clodfelter v. Cox, 1 Sneed, 330. The English rule, as gathered from ' 
 the following authorities, is that the assignment will be incomplete as 
 against subsequent assignees without notice. And that where there are 
 two or more successive assignees of the same chose in action, the first to 
 give notice vnll have the prior right : Loveridge v. Cooper, 3 Euss., 31 ; 
 Meux V. Bell, 1 Hare, 73; Dearie v. Hall, 3 Russ., 1; Saffron, etc., Soc. 
 V. Rayner, L. R., 14 Ch. D., 406; Ryall v. Rowles, 1 Ves. Sen., 348; Ex 
 parte Garrard, L. R., 5 Ch. D,, 61 ; Addison v. Cox, L. R., 8 Ch., 79. And 
 this notice has been held to be a formal matter, which is not obviated 
 by actual knowledge of the prior assignment. The subsequent assignee 
 will have the prior claim to the debt or fund, if he is fii-st to give formal 
 notice to the debtor or trustee. Edwards v. Martin, L. R., 1 Eq., 121; 
 In re Brown's Trusts, L. R., 5 Eq., 88. But this position is not supported 
 by the weight of Enghsh authority. Bridge r.Beadon, L. R., 3 Eq., 
 664; Lloyd v. Banks, L. R., 3 Ch., 488; In re Atkinson, 2 De G., M, & 
 G., 140; Thompson v. Speu-s, 13 Sm., 469; In re Ban-'s Trusts, 4 K. & 
 J., 219; Martin v. Sedgwick, 9 Beav., 333. Where sinuiltaneous notices 
 are given by successive assignees, the order of priority will be the date 
 of assignment. Lloyd v. Banks, L. R., 3Ch., 488; Calisher v. Forbes, 
 L. R., 7 Ch. , 109. See, also, Felthara v. Clark, 1 De G. & Sra., 307 ; Lang- 
 ton V. Horton, 1 Hare, 549. 
 
 2 See infra, § 436.
 
 238 NOTICE BY WHICH LIABILITIES AKE CHEATED. 
 
 should be notified in order to render the assignment effect- 
 ual as against attaching creditors.^ Thus, if garnishment 
 be served upon the debtor, and he answer without notice 
 of the assignment, and, while he is still ignorant of the trans- 
 fer, judgment is rendered against him in favor of the gar- 
 nishor, he will be protected thereby against a subsequent 
 suit brought by the assignee.^ But if he have received 
 notice, and fail to disclose it prior to judgment, the judg- 
 ment against him as garnishee will be no defense to the 
 action b}^ the assignee.' 
 
 § 435. Object of Notice. — The object of requiring notice 
 of the assignment of a clios^. in action is not, however, to 
 affect the relative rights of the assignor and the assignee. 
 It is shnply to inform the debtor that he is no longer under 
 any pecuniary obligation to his former creditor; that the 
 latter has, by the assignment, divested himself of all right 
 to the disposition of the mone}'' due, and invested his assignee 
 with that right.* The declaration of the rule, therefore, 
 that notice is absolutely necessary to perfect the assignment, 
 must be understood with the qualification that it is not 
 necessary in order to render the assignment binding upon 
 the assignor, but only to bind the debtor and those who 
 
 1 Dix V. Cobb, 4 Mass., 508. But see Stevens v. Stevens, 1 Ashm. (Pa.), 
 190, where assignment is hold good against attaching creditor if notice 
 is given after garnisliment, provided the garnishee have notice before 
 answer. Stockton v. Hall, Hard. (Ky.), 160. 
 
 2McCord V. Beatty, 12 Iowa, 299; Richards v. Griggs, 16 Mo., 416; 
 Dodd V, Bratt, 1 Minn., 270; Tudor v. Perkins, 3 Day, 3j4. 
 
 3Crayton v. Clark, 11 Ala., 787; Foster v. Wliite, 9 Port., 221; Lam- 
 kin V. Phillips, 9 Port., 98; Colvm v. Rich, 3 Port., 175; Pitts v. Mower, 
 18 Me.. 331; Nugent v. Opdike, 9 Rob. (La.), 453; Bunker v. Gilmore, 40 
 Me., 88; Page f . Thompson, 43 N. H., 373; Prescott v. Hull, 17 Johns., 
 284; Walters v. Wash. Ins. Co., 1 Iowa, 404; Kimbrough v. Davis, 34 
 Ala., 583; Large v. Moore, 17 Iowa, 258. See, also, Bevan v. Lord Ox- 
 ford, 6 De G., M. & G., 492; Pickering v. Hfracome R'y, L. R., 3 C. P., 
 235; Eyre u McDowell, 9 H. L. Cas., 619; Scott v. Lord Hastings, 4 K. 
 & J., 633; Crow v. Robinson, L. R., 3 C. P., 264; Kinderley v. Jervis, 23 
 Beav., 1. 
 
 * Gardner v. Lachlin, 4 Mylne & Cr., 139.
 
 NOTICE OF ASSIGNMENT OF CIIOSES IN ACTION. 239 
 
 claim under him as creditors,' and, we have seen it asserted, 
 innocent purchasers from tlie assignor ; - for it certainly can- 
 not be claimed, in the case cited, that subsequent assignees 
 of a chose in action who take the same with notice of the 
 former assignment can gain any advantage by being be- 
 forehand with the prior assignee in giving notice to the 
 debtor. 
 
 § 436. Assignee Takes No More than Assignor Had. — 
 Whether a subsequent assignee of a non-negotiable chose in 
 action would be protected in any event in his purchase de- 
 pends somewhat upon the construction to be given to such 
 assignments. If the authorities are to be relied upon in 
 this respect, it may be safely assumed that the assignee 
 takes no greater right in the secm-ity assigned than his 
 assignor had before the transfer, and that the purchaser 
 takes the demand subject to all equities subsisting against 
 it in the hands of his assignor.^ Notice is not necessary to 
 divest the assignor of all right or title to the thing trans- 
 ferred. However ineffectual his act may have been to 
 clothe his assignee with the character of a creditor, as be- 
 tween such assignee and the party indebted, so as to oblige 
 the latter to recognize the claim, he has at least parted with 
 his entire interest in the debt, and ceased to have any 
 rights, equitable or legal, with respect thereto. This being 
 his status, it is difficult to see how he can transfer anything 
 to a subsequent assignee. The doctrine laid down in Clod- 
 felter v. Cox* is unsupported .either by reason or authority. 
 It was not only unnecessary to a decision of the case, but 
 
 J Supra, § 434, note. 
 
 2Clodfelter v. Cox, 1 Sneed, 330. 
 
 3 Bush V. Lathrop, 23 N. Y., 535; Bartlett v. Pearson, 29 Me., 9, 15; 
 1 Pars, on Cont., 227, and cases cited; Norton v. Kose, 2 Wash. (Va.), 
 233; Thayer 17. Daniels, 113 Mass., 129; Warren u. Copelin, 4 Met., 594; 
 Wood V. Partridge, 11 Mass., 488; Dix v. Cobb, 4 Mass., 508; Bohlen 
 V. Cleveland, 5 Mason, 174; U. S. v. Vaughan, 3 Binn., 894; Little- 
 field V. Smith, 17 Me., 327; Muir v. Schenck, 3 Hill, 228; Kennedy v. 
 Parke, 17 N. J. Eq., 415; Beckwith v. Union Bank, 9 N. Y., 311. 
 
 i Supra, 1 Sneed, 330.
 
 24:0 NOTICE BY Vv'nicn liadilities ake created. 
 
 it did not have the shghtest influence upon the decision, as 
 it was decided in favor of the prior assignee, and the adverse 
 party claimed in the capacity of an attaching creditor 
 rather than a subsequent assignee, Nevertheless, the En- 
 glish doctrine that, as between successive assignees, he who 
 shall first give notice of the assignment shall prevail, is sup- 
 ported by numerous American authorities. But a subsequent 
 assignee, to gain a prior right by service of notice on the 
 debtor, must be a purchaser in good faith, and for a valu- 
 able consideration.' 
 
 § 437. By Whom Notice Given — Manner of Giving No- 
 tice. — The notice will, from the situation of the parties and 
 their interest in the event, generally come from the assignee 
 of the debt or demand. It is for his interest that the notice 
 is given. He is the party to be benefited thereby. But it 
 is probable that notice or knowledge of the assignment, 
 coming to the debtor from any source, would so far affect 
 his conscience as to prevent him from discharging the in- 
 debtedness by payment to his original creditor. The notice 
 may be either written or verbal, provided it be sufficiently 
 certain and specific to inform the debtor fully of the assign- 
 ment.- And, when there are several joint debtors, a notice 
 to one has been held notice to all, in order to give the as- 
 signee a complete right of action against the debtor.' 
 
 § 438. Knowledge Presumed. — Facts and circumstances 
 sufficient to raise a presumption of knowledge in the debtor, 
 
 'Spain V. Hamilton's Ex'rs, 1 Wall., 604; AVai-d v. Morrison, 25 Vt., 
 593; Dale v. Kimpton, 46 Vt., 76; Loomis v. Loomis, 26 Vt., 198; Barney 
 V. Douglas, 19 Vt., 98; BaiTon v. Porter, 44 Vt., 587; Foster v. Mix, 
 20 Conn., 395; Bishop v. Holcomb, 10 Conn., 444; Van Buskirk v. Hart- 
 ford, etc., Ins. Co., 14 Conn., 141 ; Adams u. Leavery, 20 Conn., 72; Judah 
 V. Judd, 5 Day, 534; Woodbridge v. Perkins, 3 Day, 364; HaiTop v. 
 Landers, etc., Co., 45 Conn., 561; Dews v. OleviU, 3 Baxt., 432; Flickey 
 V. Loney, 4 Baxt., 169; Hobson v. Stevenson, 1 Term. Ch., 208. See 
 Murdock v. Finney, 21 Mo., 138; Gayoso Sav. Inst. v. Fellows, 6 Coldw., 
 467 ; McWilliams v. Webb, 32 Iowa, 577. 
 
 ■^ Brown v. Savage, 4 Drew, 635; In re Tichnor, 35 Beav., 817. 
 
 •iTimson v. Ramsbottom, 2 Keen, 35; Ex parte Rogers, 8 De G., M. & 
 G., 27; Wise v. Wise, 2 Jones & L., 403.
 
 NOTICE OF ASSIGNMENT OF CHOSES IN ACTION. 241 
 
 of the assignment of the debt, have been held to amount to 
 notice by which he would be estopped from the acquisition 
 of a defense against the same, subsequent to his knowledge 
 of such facts.' Here the doctrine was distinctly recognized, 
 that after the assignment, whether notice had been given or 
 not, the assignor had no more poAver over the chose in ac- 
 tion than a mere stranger. But the subject of the assign- 
 ment, being in the shape of a note, which was transferred 
 Avithout indorsement, and for that reason subject to equities, 
 knowledge of the fact that such note was in the hands of 
 the assignee was held sufficient to raise a presumption that 
 the maker had notice of the assignment from the time he 
 knew of such possession.- But it has been held, on the 
 other hand, that merely putting a letter in the postoffice, 
 directed to the debtor, and containing a notice of the as- 
 signment, would not be sufficient to vest such title to a note 
 thus assigned in the assignee as would enable him to main- 
 tain an action thereon against the debtor, where the letter 
 containing the notice was never received by the party to 
 w^hom it was addressed.^ 
 
 § 439. Put Upon Inquiry. — But where the assignor of a 
 warehouse receipt was in possession of sufficient notice to 
 put him on inquiry which would have led to a knowledge 
 of its fraudulent issue, not only would he be affected with 
 full knowledge of the taint, but an equity in favor of the 
 true owner of the goods stored would attach to the receipt 
 and follow it into the hands of the assignee, who would hold 
 the same subject to all such equities as his assignor had re- 
 ceived notice of prior to notice of the assignment.* 
 
 iHackettr. Martin, 8 Me., 77. 
 
 2 Id., 79; Ellis v. Kreutzinger, 27 Mo., 311; Wells v. Archer, 11 S. & 
 R., 413; Aucher u. Bank of England, Dougl,, 637. But see Cahoon i'. 
 Morgan, 38 Vt., 234, where it is held that a demand from the assignee is 
 not sufl&cient notice. 
 
 3 Judah V. Judd, 5 Day, 534. 
 
 * Commercial Bank of Rochester v. Colt, 15 Barb., 506. See Smith v. 
 Smith, 2 Cr. & M., Exch., 231, where information in course of casual con- 
 versation was held sufficient. 
 16
 
 242 KOTicE BY wiiicn liabilities are created. 
 
 § 440. Double Purpose of Notice — Laches of tlie As- 
 signee. — It will be observed that this notice serves a double 
 }3urpose. It is not only intended to affect the debtor so as 
 to cut off subsequently-acquired defenses against the as- 
 signor, but it is to inform such debtor of his hability to the 
 assignee. When the latter demands payment, he ought to 
 be prepared, not only to give such notice as would suffice to 
 prevent payment to the assignor, but to satisfy the debtor 
 of the reality of the transaction, so that he could have no 
 reason to doubt it.' Independent of the technical necessity 
 of notice to the debtor, the assignee may, by his negligence, 
 lose the advantage of priority gained over subsequent 
 assignees.- Xotice to the custodian of chattels of their 
 transfer to another has also been held equivalent to de- 
 livery.' 
 
 § 441. Overdue Bills. — The rule requiring notice to the 
 debtor of the assignment of a demand in favor of his cred- 
 itor, in order to create a liability as betAveen him and the 
 assignee, is not confined to such as do not belong to the 
 class Imown as negotiable instruments. It applies to all 
 such instruments as bear on their faces the evidence of dis- 
 honor. A note or bill which is past due and unpaid will 
 be subject, in the hands of an assignee, until the debtor is 
 notified of the assignment, to the same equities as would 
 have affected it in the hands of the party from whom it was 
 received.^ 
 
 § 442. Negotiable Paper Without Indorsement. — And 
 even negotiable paper, assigned before maturity, will be 
 subject to the same rule when it passes otherwise than by 
 
 'Davenport i\ Woodbridge, 8 Me., 17; Johnson v. Bloodgood, 1 
 Jolms. Cos., 51; Bean v. Simpson, 16 Me., 49; ^Vnderson v. Van Allen, 
 12 Johns., 343. 
 
 2Fraley's Appeal, 76 Pa. St., 42; Fisher v. Knox, 13 Pa. St., 622; 
 Mercantile Ins. Co. v. Corcoran, 1 Gray, 75; Judson v. Corcoran, 17 
 How., 612; Richards I'. Griggs, 16 Mo., 416; Pinkerton v. Manchester, 
 etc., R. Co., 42 N. H., 424. 
 
 3Lu£kins v. Collins (Idaho), 6 West Coast Rep., 594. 
 
 * Story on Prom. Notes, § 190, and cases cited.
 
 NOTICE OF ASSIGNMENT OF CHOSES IN ACTION. 243 
 
 indorsement. It is not, therefore, the essential character of 
 the demand assigned Avhich renders notice necessary, so 
 much as the manner in which the title thereto is transferred. 
 When the Avritten evidence of indebtedness is non-nego- 
 tiable or overdue, indorsement will not obviate the necessity 
 of notice ; but when negotiable paper requiring indorsement 
 is assigned by delivery, notice has been held necessary to 
 perfect the assignment.^ 
 
 § 443. Balance Due on Account. — Another class of 
 claims which are subject to the rule as to notice, and which 
 frequently call for its application, are such as grow out of 
 mutual dealings between the original parties. In such cases 
 a balance due one of the parties may be assigned, so as to 
 give the assignee the same rights with respect thereto as 
 possessed b}' the assignor at the time the balance was 
 struck; but should the account be kept open, the party 
 against whom the balance is claimed will be entitled to re- 
 duce the demand by credits in his favor as against the 
 assignor, until notified of the assignment, but no longer.- 
 
 § 44:4:. Policies of Insurance.— A class of claims Avhich 
 frequently become the subject of assignment, either abso- 
 lutely or as security for debt, are policies of insurance. 
 These are peculiarly affected by the want of notice, as well 
 on account of the stipulations in the policy as by reason of 
 some points of essential difference between contracts of this 
 kind and those of a more general character. Where, by 
 the terms of the policy, the assured is required to give notice 
 of its assignment, together with the transfer of the insured 
 property, in order to save the policy from forfeiture, there 
 is a stronger reason for enforcing this condition against the 
 assignee than exists with reference to ordinary assignable 
 contracts. The obligation assumed by the insurer to indem- 
 nify the assured against loss is, to a considerable extent, 
 personal in its character. It is an obligation he might be 
 
 'Hackettr. Martin, 8 Me., 77; Matthews v. Houghton, 10 Me., 420; 
 Jones V. Witter, 13 Mass., 304. 
 2Bartlett v. Pearson, 29 Me., 9.
 
 244 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 willing to assume in favor of one person, while if the in- 
 demnity were in favor of a different person, the risk might, 
 in the estimation of the insm-er, be considerably enhanced,' 
 § 445. Notice to Insurer. — ISTotice to the insm-er of the 
 mortgage of the insured property, and the assignment of 
 the mortgagor's interest in the policy to the mortgagee, is 
 required, in order that the party liable may be fully advised 
 as to who has an interest in the indemnity. But while such 
 notice, as in other cases of assignment, may suffice to pre- 
 vent the pa}Tnent of the loss, should one occur, to the 
 assured, regardless of the rights of his assignee, it will not 
 prevent a subsequent forfeiture of the policy, by a breach 
 of its essential conditions on the part of the mortgagor.^ 
 
 § 4:4:0. Conditions of Policy.— So where the owner of a 
 vessel procured insurance thereon and assigned the policy 
 to a mortgagee, with the assent of the insurer, it was held 
 that the assignee took subject to all the conditions of the 
 pohcy, and a subsequent over-insurance by the mortgagor 
 would render the first policy void, this being one of the 
 conditions upon which it was issued.^ 
 
 § 447. Assignment of Subject of Insurance. — But in 
 a case of insurance where one of the conditions of the pol- 
 icy was that, in case the interest in the property of the 
 insured was conveyed without the consent of the insurer, 
 the policy should thereby be rendered void, it was held that 
 such forfeiture should not aflPect the insurance upon an in- 
 terest previously conveyed or assigned with the consent of 
 the insurer.* 
 
 § 448. By Retiring Partners. — Where the terms of the ' 
 pohcy prohibit an assignment without notice, an assignment 
 by the retiring member of a partnership, to his late co- 
 
 iHobbs V. Memphis Ins. Co., 1 Sneed, 444. 
 
 2Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391. 
 
 ' Bufifalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N. Y., 401 ; 
 State Mutual Fire Ins. Co. v. Eoberts, 31 Pa. St., 438. Contra, sco 
 Traders' Ins. Co. v. Eoberts, 9 Wend., 404 
 
 * Boynton v. Clinton & Essex Insurance Co., 16 Barb., 254.
 
 NOTICE OF ASSIGNMENT OF CHOSES IN ACTION. 245 
 
 partner, is equally within the terms of the prohibition as 
 though it had been made to a stranger.^ 
 
 § 449. Notice May be Implied. — Notice of the assign- 
 ment of an insurance policy, or of an interest in the subject 
 of insurance, need not be express. It may, like any other 
 fact, be inferred from other facts and circumstances. So, 
 where a retiring partner assigned his interest to his co- 
 partner, who continued the payment of the premiums to 
 the agent of the insurer for four years after such assign- 
 ment, these facts were held to be competent evidence from 
 which the jury might draw the inference that the assign- 
 ment was known to the insurer when the premiums were 
 received, and such knowledge would dispense with any 
 formal notice.^ 
 
 § 450. Assigument After Loss. — An assignment of a 
 policy of insurance, without notice of such assignment to 
 the insurer, does not always work a forfeiture of the inter- 
 est in the policy. This is probabl}^ true of all policies after 
 the occurrence of the loss by which the demand is ren- 
 dered absolute and unconditional. But notice of assign- 
 ment after loss would be required for substantially the 
 same reasons as apply to the assignment of other things in 
 action. It has been held that the assignment of a policy 
 by the assured, without notice to the insurer, left the pro- 
 ceeds of the policy subject to the order and disposition of 
 the insured, and upon his becoming bankrupt, the same 
 went to his assignees.' 
 
 1 Buckley v. Garrett, 47 Pa. St., 204. 
 
 Ubid. 
 
 3 In re Colville, 1 Montag., 110.
 
 24G NOTICE BY WHICH LIABILITIES ARE CEEATED. 
 
 lY. ]^OTICE TO CaKEIEKS AND OtHEE BaILEES. 
 
 § 451. Division of the Subject. 
 
 452. Notice of Goods Delivered for Carriage. 
 
 453. Deposited at "Wliai-f or Left at Receiving House. 
 
 454. When Notice Necessary. 
 
 455. DeUveiy Pursuant to Understanding. 
 
 456. DeUvery on Private Wharf. 
 
 457. Stoppage in Transitu. 
 
 458. Inquuy Confined to Effect Upon Carriers. 
 
 459. Time of Giving Notice. 
 
 460. During Transit. 
 
 461. Before Ai-rival and Demand. 
 
 462. Concurrent Facts. 
 
 463. Effect of Notice. 
 
 464. End of Transit us by Delivery. 
 
 465. Fact of Dehvery Determined by Intent. 
 
 466. Consignee's Possession Ends Transit. 
 
 467. Views of Chancellor Kent. 
 
 468. Carrier Discharged by Notice at End of Journey. 
 
 469. Storage in Government Warehouse. 
 
 470. Notice to Employer. 
 
 471. Eesponsibility of Carrier. 
 
 472. Effect of Assigning BUI of Lading. 
 
 473. Must be to Bona Fide Purchaser. 
 
 474. End of Transit by Interception. 
 
 475. Pi-ef erred to Judgment Creditor. 
 
 476. By Whom Given. 
 
 477. By Factor. 
 
 478. By Party to Contract Respecting the Groods. 
 
 479. By Owner's Guarantor. 
 
 480. By Agent. 
 
 480fl. Notice of Facts Requh-ing Extra Care. 
 480b. Notice of Loss by Shij)pers. 
 
 § 4:51. Division of tlie Subject. — The matter in respect 
 to wMch notice affects carriers and otlier bailees for hire, 
 so as to create habUities in favor of others and against 
 them, has reference : 1. To the dehvery of the goods, wares 
 and merchandise to be carried, or the things committed to 
 their charge. 2. Xotice of rights of others in conflict with 
 those of consignees. 3. Notice of facts imposing the duty 
 of extraordinary care. 4. Notice of loss by shipper.
 
 NOTICE TO CAEKIEES AND OTHER BAILEES. 247 
 
 § 452. Notice of Goods Delivered to Carrier. — Circum- 
 stances beyond the control of the consignor or bailor may 
 prevent such a direct or personal delivery of the things 
 bailed, into the possession of the bailee, as to render it cer- 
 tain beyond a doubt that they are actually received. The 
 employment of inadequate means and facilities for storage 
 or handUng of the goods, or incompetent or dishonest 
 agents or servants, may render it extremely inconvenient, 
 or even impossible, for the bailor to deliver the things when 
 and where the other party is prepared to take them into 
 his possession and receipt for them, so that there will be no 
 room to doubt the completion of the transaction and the 
 perfection of the bailee's liability. This branch of the law 
 is practically applied almost exclusively to the liability as- 
 sumed by carriers ; but as, under the same circumstances, 
 substantially the same rule would govern other bailees for 
 hire, the principles here enunciated will be understood to 
 apply in a general way to all cases of bailment. 
 
 § 453. Deposited at Wharf. — When goods are deposited 
 for transportation at a public wharf, where there is no one 
 acting on behalf of the carrier to receive them, and there 
 has been no previous arrangement with the carrier that 
 leaving them at such place shall be treated as equivalent to 
 a delivery, in order to render the carrier liable, as such, for 
 the goods, he should have notice that they Avere left at the 
 wharf for the purpose of being transported by the carrier 
 notified.' But when the articles were shown to have been 
 left at a receiving house, where the carrier was accustomed 
 to receive parcels, and were delivered to some one in charge 
 of the house, this was held to be the legal equivalent of 
 actual personal deliver}'- to the carrier himself, and the time 
 of so leaving the goods would be the date of the inception 
 of the carrier's liability.^ 
 
 § 454. Wlien Notice Necessary. — When, however, from 
 the circumstances surrounding the transaction, it is adjudged 
 
 1 Buckman v. Levi, 3 Camp., 414. 
 
 2Burre]l v. North, 2 Carr. & K., 680 ; Packard v. Getman, 6 Cow., 757.
 
 248 NOTICE BY WlllCli LIABILITIES ARE CREATED. 
 
 necessary to . give notice to the carrier that the articles 
 have been left for him at some public place, as a wharf or 
 landing-, unless the bailor has done so in conformity to some 
 established custom of the carrier, or a previous direction 
 from him, either express or implied, such carrier may refuse 
 to accept the goods at that place. It is only when the car- 
 rier, upon receiving notice, expressly or tacitly assents to such 
 delivery, that such notice operates to create a liabihty to 
 the bailor, by which the carrier would become responsible 
 for the articles delivered.^ Where a person, after engaging 
 passage on a boat, left his baggage on the boat, and it 
 was stolen, it was held that he could recover for his loss.^ 
 But for a trunk so left by one who had neither engaged 
 passage nor given notice of his intention to do so, the owner 
 could not recover as for want of care of baggage.* 
 
 §455. Delivery Pursuant to Understanding. — As the 
 carrier will be bound, without express notice, by a delivery 
 at the place indicated by custom for receiving articles for 
 transportation,^ by a much stronger reason would his re- 
 sponsibility arise from a deposit at a place where he had 
 agreed to receive freight. Such deposit has been held to be 
 implied notice in itself, and sufficient to fix the carrier's 
 liability.^ 
 
 § 456. Delivery on Private Wharf. — A delivery of 
 property for transportation on the private dock or wharf of 
 the carrier, used exclusively by himself, would be considered 
 as a personal delivery to the carrier, and therefore would 
 not require notice in order to render such carrier liable from 
 the time of the delivery.^ 
 
 ^Ibicl.; Buckman V. Levi, 3 Camp., 414; Green v. The Eaili-oad, 41 
 Iowa, 410. 
 
 2 Woods V. Devin, 13 Til, 746. 
 
 3Wriglit V. Caldwell, 3 Mich., 51. 
 
 ^Burrell v. North, 3 Carr. & K., 680. 
 
 SMerriam v. H. & N. H. R. R. Co., 20 Conn., 854; lU. Cent. R. Co. v. 
 Ashmead, 58 111., 487; HI. Cent. R. Co. v. Hornberger, 77 111., 457; lU, 
 Cent. R. Co. v. McClellan, 54 111., 58. 
 
 BMerriam v. H. & N. H. R. R. Co., 20 Conn., 354.
 
 NOTICE TO CAKEIERS AND OTHER BAILEES. 249 
 
 §457. Stoppage in Transitu. — The principal circum- 
 stance calling for notice to carriers, or other bailees, of 
 rights to the thing bailed, adverse to those of consignee, is 
 where the goods or merchandise carried is stopped in 
 transitu by the vendor. The event which calls for the ex- 
 ercise of the vendor's right of stoppage in transitu is when 
 the goods purchased have not been paid for, and the pur- 
 chaser has become insolvent.' The usual manner of stop- 
 j)age is by a countermand to the carrier while the goods are 
 still, in contemplation of law, in transit ; but this seems not 
 indispensable to the main purpose for which the right is 
 asserted. The object of such countermand is not merely to 
 atfect the carrier with notice of the right asserted, and thus 
 implicate him, upon his refusal to comply. The chief end 
 to be attained is to affect the consignee with notice through 
 the carrier, and this may in some instances be accomplished 
 by an open and notorious assertion of the right of reclama- 
 tion in any other form. A countermand of the consignee's 
 right to receive the goods will have the same effect to pre- 
 vent the loss of the vendor's right of stoppage in transitu^ 
 as though the carrier were notified not to deliver them.^ As, 
 in the case cited, where the bills drawn against the shipment 
 were protested, and the consignor notified the assignees of 
 the consignee of the fact, and proposed that they should 
 either be delivered to his own agent to await the fate of 
 the bills, or that the assignee should keep a separate account 
 of sales, and, in the event of the acceptance of the latter 
 alternative, prospectively demanded the proceeds as his prop- 
 erty, this was held a distinct enunciation of the vendor's 
 right of stoppage, and was therefore sufficient to bind the 
 assignee.' 
 
 1 Benj. on Sales, §§ 766, 837. 
 
 ^BeU V. Moss, 5 Whart., 189. 
 
 3 The vendor's right of stoppage does not depend upon his having given 
 formal notice, as he may have his action to recover the goods in the first 
 instance. Reynolds v. The Railroad, 43 N. H., 580; Newhall v. Vargas, 
 13 Me., 93; Howe v. Stewart, 40 Vt., 145; O'Brien v. Norris, 16 Md., 
 132; Thompson v. The Raih-oad, 28 Md., 396; Jones v. Earl, 37 Cal., 630.
 
 250 NOTICE BY WHICH LIABILITIES ABE CREATED. 
 
 § 458. Iiuiuiry (Jonfined to Effect Ipon Carriers. — But 
 
 how interesting and profitable soever a general inquiry into 
 the origin, nature and objects of this important right, which 
 is recognized by all commercial peoples, might prove, it is 
 only intended here to present so much as affects the carrier 
 in whose hands the goods are sto])ped at the instance of the 
 vendor. Anything more than this would be beyond the 
 legitimate scope of a work of this kind. 
 
 § 459. Time of Giving Notice. — One of the most impor- 
 tant matters for consideration in connection with this sub- 
 ject is the question, when, in the com^se of the shipment, 
 must the notice be given, in order to fix the hability of the 
 carrier to the consignor or vendor? It is not a sufficient 
 answer to this to say that it should be before the arrival of 
 the goods at their destination, nor even that it should be 
 prior to the delivery. It may be given after tlieir arrival 
 at the place were they are to be delivered, and the right of 
 stoppage may be lost before their actual delivery to the 
 consignee.^ ' 
 
 § 460. During Transit. — It may be laid down as a gen- 
 eral rule, that notice to a carrier of the vendor's intention to 
 reclaim, by a countermand of the order for the delivery of 
 the goods shipped, Avill be in time, if given while the goods 
 are still in transit.- This requires a determination of the 
 question, when does the transit cease? Certainly not in 
 every instance with the end of the voyage. It cannot prop- 
 erly be said to continue merely during the time intermediate 
 between the actual commencement of the journey from the 
 place where the goods are sold, to the place where they are 
 to be delivered. Such a construction would exclude all the 
 time intervening between the delivery of the goods to 
 the carrier, and their actual departure, as well as the' time 
 subsequent to their arrival, and prior to acceptance by the 
 consignee. It may be said, therefore, that the goods are in 
 transit, and subject to the right of stoppage in transitu, 
 
 iMottram v. Heyer, 5 Den., G29. See, also, cases cited infra, 
 - Infra.
 
 NOTICE TO CAHEIEES AND OTHER BAILEES. 251 
 
 from the time the carrier becomes charged with their pos- 
 session, until his liabiKty as carrier terminates.^ 
 
 §461. Before Arrival and Demand. — In accordance 
 Avith this view it has been held that the notice to the carrier 
 must be before the arrival of the goods at their destination 
 and a demand therefor by the consignee or his legal repre- 
 sentative.^ 
 
 § 462. Concurrent Facts. — The doctrine that, in order 
 to defeat the right of stoppage m transitu, the arrival at 
 the place of destination and the demand by the consignee 
 must be concurrent facts, though not fully settled, is well 
 illustrated by the case of Hoist v. Pownal.^ It was there 
 laid down by Lord Kenyon, that, in order to give the con- 
 signee a right to claim by virtue of possession, it should be 
 a possession obtained by him on the completion of the voy- 
 age, and that, in that case, the voyage was not completed 
 until the carrier had performed quarantine. In this opinion 
 the court of king's bench concurred, and the verdict was en- 
 tered up for plaintiff, the vendor, whose agent had claimed 
 the cargo before the completion of the quarantine, notwith 
 standing the consignee's prior possession ; but perhaps the 
 Aveight of authority is in favor of the right of the vendee to 
 anticipate the termination of the voyage at any point, and, 
 by obtaining possession, put at end to the .transitus} But 
 this has been qualified by the provision that the interrup- 
 tion of the transit by the purchaser shall be in good faith.'^ 
 
 §463. Eflfect of Notice.— From the foregoing it Avill 
 appear that the notice of stoppage given to the carrier is 
 not only sufficient to fix his liability, as for conversion of 
 the goods, in case he aUows them to be taken while the 
 
 1 Infra. 
 
 2 Bird V. Brown, 14 Jur., 132. 
 
 3 1Esp., 240. 
 
 * Wliiteliead v. Anderson, 9 M. & W., 518; Lond. & N. W. R. Co. v. 
 Bartlett, 7 H. & N., 400: Wood v. Yeatman, 15 B. Mou., 270; Foster v. 
 Frampton, 6 B. & C, 107; Molir v. Boston & Albany R. R. Co., 106 
 Mass., 67. 
 
 5 Mohr V. B. & A. R. R. Co. , siipra.
 
 252 NOTICE BY WHICH LIABILITIES ARE CREATED. 
 
 seller's right of control remains intact, but that it is suflS- 
 cient to vest the right of possession in the original owner, 
 so that he may reclaim the goods from an insolvent or 
 bankrupt consignee or his assignees/ The possession ob- 
 tained by the consignee, in order to work a complete di- 
 vestiture of the seller's rights with respect to the property, 
 if not required to be regular, in the sense that it is acquired 
 at the end of the voyage, should at least be rightful, in the 
 sense that it was obtained with the seller's consent and not 
 against his protest. Thus, w^here the notice was given the 
 owners of canal boats at one of the termini of the route, and 
 in transmitting instructions, pursuant to such notice, to the 
 place of destination, a mistake was made by the carrier in 
 the names of the consignees, this was held not to affect the 
 seller's right of reclamation, after the goods had, in conse- 
 quence of the mistake, been delivered to the purchaser, the 
 notice having been given before the transit was completed.^ 
 § 464. End of Transitus by Delivery.— In many of the 
 cases the transitus is held to be at an end only with the de- 
 livery of the goods to the consignee, his agents or repre- 
 sentatives.' And in order to avoid the consequences of 
 following this rule strictly in certain cases, where it seemed 
 that actual delivery should not be required, the doctrine of 
 constructive delivery is resorted to.* "While in Bird v. 
 Brown,^ it is maintained with a fair show of reason that the 
 transitus may be ended without delivery either actual or 
 constructive, by a simple demand for the goods by the pur- 
 chaser or his representatives, although possession is tor- 
 tiously withheld by the carrier, and that a subsequent notice 
 
 iWliite V.Welsh, 38 Pa. St., 396; O'Neil v. Garrett, 6 Iowa, 480; 
 Rowley v. Bigelow, 13 Pick., 307. 
 
 -Litt V. Cowley, 7 Taunt., 169; Bell v. Moss, 5 Wliart., 189. 
 
 3 Foster v. Frampton, 6 Barn. & Cres., 107; Buckley v. Furniss, 15 
 Wend., 137; Seymour v. Newton, 105 Mass., 272; Sawyer v. JosUn, 20 
 Vt., 172; NewhaU v. Vargas, 18 Me., 93; Hays v. MoniUe, 14 Pa. St., 48; 
 Aguirre v. Parmelee, 22 Conn., 473. 
 
 * Jordon v. James, 5 Ohio, 98 ; Sawyer v. Joslin, 20 Vt., 173. 
 
 ^Ante, % 461.
 
 NOTICE TO CAKEIEES AND OTHER BAILEES. 253 
 
 of stoppage would not be effectual.' But even where this 
 is accepted as the correct doctrine, it must be qualified by 
 the provision that nothing further remains to be done be- 
 fore the notice of stoppage, in order to entitle the purchaser 
 to the possession of the goods. Thus, where the buyer hav- 
 ing become bankrupt after the purchase and before the 
 arrival of the goods, his assignee demanded them and went 
 on board the vessel and laid his hands upon a portion of 
 the articles purchased, and the master of the vessel promised 
 to deliver them when he was satisfied as to his freight. Be- 
 fore the freight was paid the vendor went on board and 
 gave notice of stoppage to the officer in charge, and it was 
 held that, as the master had not contracted to hold as the 
 agent of the assignee, the transitus was not ended and the 
 notice of stoppage Avas sufficient.- But it has been strongly 
 intimated that the mere non-payment of the freight, where 
 the goods are held subject to the orders of the consignee 
 and to be delivered upon payment, will not render the goods 
 liable to stoppage in transitu} 
 
 § 405. Fact of Delivery Determined by Intent. — The 
 conflict of authority is too decided to admit of the deduc- 
 tion of a rule as to what acts on the part of the purchaser, 
 without the concurrence of the carrier, will suffice to cut 
 off the vendor's right of stoppage. But it is quite clear 
 that where possession, actual or constructive, is required, 
 the fact must be determined by the manifest intent of the 
 parties with respect to the property, and their conduct must 
 be interpreted by what it was meant to signify in each par- 
 
 iSecomb v. Nutt, 14 B. Mon., 324; London, etc., R'y v. Bartlett, 7 H. 
 & N., 400; Turner v. The Liverpool Dock Ti-'s, 6 Exch., 543; Stubbs v. 
 Lund, 7 Mass., 453; Holbrook v. Vose, 6 Bosw., 76. 
 
 2 Whitehead v. Anderson, 9 M. & W., 518. See, also, Calahanr. Bab- 
 cock, 21 Ohio St., 281; Guilford v. Smith, 30 Vt., 49; Blackb. on Sales, 
 259; Benj. on Sales, § 855; Jackson v. Nichol, 5 Bing. N. C, 508; Mc- 
 Fetridge v. Piper, 40 la., 627 ; Buckley v. Furniss, 15 Wend., 137 ; Cabeen 
 V. Campbell, 30 Pa. St., 254; Hams v. Pratt, 17 N. Y., 249; Allen v. 
 Mercier, 1 Ash., 103. 
 
 3 Whitehead v. Anderson, supra.
 
 254r NOTICE BY WHICH LIABILITIES AEE CREATED. 
 
 ticular case, rather than by the construction placed upon 
 similar acts in other cases where the intention may have 
 been quite different.' The intention of the insolvent pur- 
 chaser not to accept was held to control, although such 
 intent was never disclosed until after notice of stoppage.^ 
 
 § 4r»6. Consignee's Possession Ends Transit. — Al- 
 though it may be true that possession by the consignee is 
 not requisite, in all cases, to defeat the vendor's right in the 
 premises, it is nevertheless equally true that, when such pos- 
 session has been obtained by the purchaser in good faith, 
 the transit Avill be at an end. In order to arrive at a just 
 conclusion as to the conflicting rights of the vendor and 
 vendee, it will be necessary to follow the inquiry farther 
 than our present purposes require. Although the vendor's 
 riglit of stoppage may still attach after the goods have 
 passed out of the possession of the carrier, for the reason 
 that they have not been accepted by the insolvent purchaser, 
 or by any one authorized to act for him ; ' still, if the car- 
 rier's duties with respect to the goods have ceased, he 
 cannot be affected b}'- notice or countermand from the 
 vendor.* 
 
 § 467. Tiews of Chancellor Kent.— In giving a sum- 
 mary of the authorities upon this subject, and the deductions 
 to be drawn therefrom, Chancellor Kent lays it down as a 
 general rule that where the carrier is, b}'^ agreement, con- 
 verted into a special agent of the buyer, the transit of the 
 goods terminates, and with it the right of stoppage.'' 
 
 § 468. Carrier Discharged by Notice at End of Jonr- 
 ney. — It would follow, therefore, that where the carrier has 
 
 1 Benj. on Sales, § 857, and cases cited. 
 
 2 James v. Griffin, 2 M. & W., 623. See, also, Morris v. Shryock, 50 
 Miss., 590. 
 
 3 Bolton V. Lane. & York. R'y Co., L. R., 1 C. P., 431 ; 35 L. J., C. P., 
 137; Grout v. Hill, 4 Gray, 361 ; Lane v. Jackson, 5 Mass., 157. 
 
 4Isley V. Stubbs, 9 Mass., 65; Reynolds v. B. & M. R. R., 43 N. H., 
 591 ; Cabeen v. CampbeU, 30 Pa. St., 254; Hoover v. Tibbits, 13 Wis., 79; 
 Harris v. Pratt, 17 N. Y., 249; Sturtevant v. Orser, 24 N. Y., 538. 
 
 5 2 Kent, Com., 545.
 
 NOTICE TO CARRIERS AND OTHER BAILEES. 255 
 
 completed the journey, given notice of the arrival of the 
 goods, and, by the lapse of a reasonable time for their re- 
 moval, has ceased to be responsible for them as carrier, 
 whatever may be the rights of the vendor with respect 
 thereto, the carrier having renounced all control over them, 
 could not be rendered liable to the vendor by a failure to 
 ■respect his notice of stoppage. 
 
 § 4:60. storage in Government Warehouse. — A com- 
 mon instance of the termination of the transit so far as it 
 affects the carrier, while it still continues so far as necessary 
 to give the vendor the right to perfect his lien by repossess- 
 ing the goods, is where they have arrived at the port or 
 place of destination and are stored in a public warehouse in 
 default of payment of the duties. In such event they are 
 not considered to have come to the possession or subject to 
 the control of the vendee in any sense that would deprive 
 the vendor of his right of repossession, although notice 
 to the carrier would not be effectual.^ The notice or order, 
 to be effective for the purpose of binding the carrier or 
 other bailee, should be given to the person actually in pos- 
 session pursuant to the bailment, or to his etnployer.- 
 
 § 470. Notice to Employee. — Notice to the owner of a 
 vessel, or other employer of the one who has immediate 
 custody or control of the goods, in order to be binding, must 
 be given in time to allow of the transmission of orders to the 
 master of the vessel or other employee, before the termina- 
 tion of the transitus} To hold otherwise would be to re- 
 quire the employer, in order to escape liabilit}^, to perform 
 that Avhich is impossible. The most that can be justly 
 required in any case is that due diligence shall be used to 
 communicate with the officer or servant in possession of the 
 goods. 
 
 1 3 Kent, Com,, 547; Donath v. Broomhead, 7 Pa. St., 301 ; Mottram v. 
 Heyer, 5 Den., 629; Northey v. Field, 2 Esp., 613. 
 
 - Mottram v. Heyer, supra. 
 
 ^Id. ; 'Whitehead v. Anderson, 9 M. & W., 518; Litt v. Cowley, 7 
 Taunt., 169.
 
 256 NOTICE BY -SVHICn LIABILITIES AEE CREATED. 
 
 § 4:71. Responsibility of Carrier.— It is of the utmost 
 importance that the carrier act circumspectly upon receipt 
 of a notice of this sort, as in delivering or Avithholding- the 
 goods after notice from the vendor he acts at his peril.* 
 The difficulties of his position may be inextricably compli- 
 cated by the controversy between the vendor and the 
 vendee. To deliver the goods when the notice is sufficient 
 renders him liable to the vendor. Should he wrongfully 
 witlihold them from the vendee or his representatives, he 
 l)ecomes responsible for his conduct, although he may have 
 acted on the belief that the stoppage was complete.- 
 
 § 472. Effect of Assigning Bill of Lading.— The addi- 
 tional obstacle to a clear understanding of his duties in the 
 premises is presented in the fact that the vendor's right of 
 stoppage may be utterly defeated by the vendee. "When 
 the goods are represented by a bill of lading, this is re- 
 garded as such a symbol of property, in the hands of the 
 vendee, that an assignment thereof by him to an innocent 
 purchaser for value will give to such purchaser a right to 
 the property, which is paramount to any rights the vendor 
 may have to reclaim possession of the same for unpaid pur- 
 chase money.* 
 
 §473. Mwst be to Bona Fide Pnreliaser. — But in order 
 to give such a transfer of a bill of lading by the insolvent 
 vendee the effect of cutting off the right of the vendor to 
 perfect his lien for the purchase money by stoppage in 
 transitu, it must be assigned to one w^ho comes strictly 
 within the description of assignees whose rights are pro- 
 tected, not only because of the hona fides of the transaction, 
 in the sense that he took without knowledge or informa- 
 tion of the rights of the vendor, but it must be for a valu- 
 
 iThe Tigress, 32 L. J., Adm., 97; S. C, 9 Jur., N. S., 361. 
 
 •-'Wilson V. Anderton, 1 B. & Ad., 450; Batuitt v. Hartley, L. R., 7 Q. 
 B., 594; Blackburn on Sales, 266. 
 
 ^Blanchard v. Page, 8 Gray, 281; Holbrook v. Vose, 4 L. Eeg., N. S., 
 602. And such assignee may maintain an action against the seller who 
 regains possession for the conversion of the goods. Rowls v. Deshler, 4 
 Abb. App. Dec, 12; Newhall v. Cent. Pac. R. Co., 51 Cal., 345,
 
 NOTICE TO CAEEIEES AND OTHER BAILEES. 257 
 
 able consideration.' Thus, where a bill of lading of goods 
 in transit was transferred by the purchaser to a creditor, as 
 collateral security for past indebtedness, it was held by Mr. 
 Justice Bradley, in Lesassier v. The Southwestern,- that, as 
 the transferee had given up nothing as a further considera- 
 tion for the transfer, h was not such an assignment as would 
 preclude the seller from stopping the goods for the unpaid 
 purchase money, in case of the insolvency of the purchaser. 
 
 § 474. End of Transit by Interception. — Although the 
 transitus may be ended by the purchaser himself before the 
 arrival of the goods at the port of delivery, by meeting 
 them at an intermediate point, and though he may defeat 
 the vendor's lien by assignment of the bills of lading, the 
 arrival may not be anticipated, nor the right of stoppage 
 defeated, by the general creditors of the purchaser. Ac- 
 cordingly, where, after the arrival of the goods, they were 
 placed on a wharf boat, and the purchaser, being aware of 
 his insolvency, refused to accept them, and so informed the 
 vendor, and while thus situated the goods were attached at 
 the suit of a creditor, it was held that the vendor might 
 exercise his right of stoppage, notwithstanding the attach- 
 ment.^ 
 
 § 475. Preferred to Judgment Creditor. — For the same 
 reasons that tlie claim of the vendor for unpaid purchase 
 money would be preferred to that of the attaching creditor, 
 it is held that a seizure by an officer under process in favor 
 of a judgment creditor will not defeat the right of stop- 
 page by the vendor.* 
 
 § 476. By Whom Given. — An important matter for con- 
 sideration in connection with the liability which may be 
 created against carriers or other bailees, by notice of the 
 vendor's claim, is as to the party who makes the claim and 
 gives the notice. The countermand, when addressed to the 
 
 1 Lesassier v. The Southwestern, 2 Woods, 35. 
 
 2 Supra. 
 
 3 Morris v. Shryock, 50 Miss., 590. 
 
 ^ Rucker v. Donovan, 13 Kans., 251. 
 
 17
 
 258 KOTICE BV WHICH LIABILITIES AKE CREATED. 
 
 custodian of the property, unless coming from one possessed 
 of rights in tlie premises, must be disregarded.' On the 
 other hand, if given by one recognized by the law as enti- 
 tled to repossess the goods for his indemnity by means of 
 a stoppage in transitu, such notice, if otherwise sufficient, 
 cannot be ignored. In this respect, as in every other, the 
 carrier acts at his peril. The duty of the carrier would be 
 suflSciently plain if the right existed onl}^ in favor of actual 
 vendors ; but it has been repeatedly held that it may be ex- 
 ercised with the same effect by any one who stands in the 
 place of such vendor, with respect to the demand upon the 
 purchaser. 
 
 §477. By Factor. — It was accordingly held by Lord 
 Ellexborougii in Feise v. Wray,- that the right existed in 
 favor of a mere factor. In that case the consignor had 
 bought the goods with his own funds in a foreign port, on 
 account, and by order of his principal in London, to whom 
 they were shipped. The principal becoming bankrupt dur- 
 ing the transit, and the assignee demanding the possession 
 of the goods in the interest of the estate, contended that 
 the factor w^ho purchased the goods did so in his capacity 
 of agent ; but the court in the interest of justice chose to 
 consider him as a vendor, Avho sold the goods to his London 
 correspondent at cost, plus his commissions.^ 
 
 § 478. By Party to Contract Respecting the Goods. — 
 So where the vendor has merely an interest in an executory 
 contract with respect to the goods in transit, as in the case 
 of Jenkins v. Usborne,* where the plaintiff sold a portion of 
 a cargo, the property in which had not yet vested in him, 
 but he merety would have a right to the designated portion 
 after it was separated, this interest was held to be such, 
 
 1 Hutcliinson on Car., § 411. 
 
 '- 3 East, 93. 
 
 3 Seymour v. Newton, 105 Mass., 272; Newhall v. Vargas, 13 Me., 93; 
 Gossler v. Schepeler, 5 Daly (N. Y.), 476 ; Frascheris v. Henriques, 6 
 Abb. (N. S.), 251; Snee v. Prescot, 1 Atk., 245; The Tigress, 32 L. J., 
 Adm., 97; EUersbaw v. Magniac, 6 Exch., 570. 
 
 *7M. &G., 678.
 
 NOTICE TO CAERIEES AKD OTHER BAILEES. 259 
 
 that on the insolvency of his vendee he was entitled to stop 
 the delivery for the unpaid purchase money. 
 
 §479. By Owner's Guarantor. — The recent case of 
 Gossler v. Schepeler ^ was where the goods were purchased 
 in a foreign port upon the faith of a letter of credit, from 
 the party claiming the right of stoppage. The purchaser 
 had agreed to transfer the bills of lading to his guarantor, 
 as security, but failed to comply with his contract. During 
 the transit the purchaser became bankrupt, and the exercise 
 of the right by the guarantor was allowed by the court, as 
 against the claim of the assignee in bankruptcy for the pos- 
 session of the goods, upon the ground that he had paid the 
 purchase price, and was thereby subrogated to all the rights 
 of an original vendor. In deciding this case, one of the 
 principal authorities cited in support of the right of the 
 party assuming the payment of the purchase money, to 
 stoppage for his own security, is Benjamin on Sales.^ It is 
 there laid down that such right could be claimed under the 
 provisions of the statute,' by a surety who had paid the 
 vendor ; but a case is cited prior to the statute,* in which it 
 was decided that a mere surety for the buyer had no right 
 to stop in transitu. 
 
 § 480. By Agent. — Stoppage may be made by an agent, 
 on behalf of the principal, whether he has been thereto 
 specially authorized, or acts pursuant to general authority 
 derived from the nature and scope of his employment.' 
 And such authority, where it is special, may be derived 
 from subsequent ratification, as well as fi«m prior appomt- 
 ment," subject, however, to the provision that, in order to 
 
 1 5 Daly, 476. 
 
 2Jn/m, §§830, 831. 
 
 3 19 and 20 Vict, c. 97. 
 
 4 Skiff en v. Wray, 6 East, 871. 
 
 •■■'Reynolds v. B. & M. R. R., 43 N. H., 580; Bell v. Moss, 5 Wliart., 
 189; ^Vliitehead v. Anderson, 9 M. & W., 518; Chandler v. Fulton, 10 
 Tex., 2. 
 
 « Hutchings v. Nunes, 1 Moore, P. C, N. S., 343,
 
 2G0 NOTICE BY WillCn LIABILITIES AUE CBiEATED. 
 
 operate as a justification of the carrier's act in witliholding 
 the goods from the purchaser, or to render him liable for 
 not respecting the countermand, such sulbsequent approval 
 must be prior to the tennination of the transitus} 
 
 § 4r80a. Notice of Facts Requiring Extra Care, — The 
 care to be used in handling goods delivered to a common 
 carrier for transportation must depend in no small degree 
 upon the nature of the goods consigned. It is also essential, 
 where the goods are of a kind that demand extraordinary 
 care in handling, that the carrier should have notice of this 
 fact, in order to render him liable for any injuries resulting 
 from a want of such care. When the articles consigned 
 bear plain and legible marks indicating their peculiar quali- 
 ties, or the contents of packages, the carrier will be suflB- 
 ciently notified for all purposes affecting his liabihty.^ But 
 where the quality of the article shipped is obvious, and it 
 may be readily distinguished from other grades of the same 
 article, notice of this difference, or of any different use for 
 which it was intended, is unnecessary, in order to render the 
 carrier hable for the loss occasioned by handling. Thus 
 where plaintiff shipped a selected car load of corn in the 
 ear, to be sold as seed corn, and the carrier caused it to be 
 shelled, whereby it deteriorated in value, it was held that 
 defendant was not entitled to notice of the peculiar value 
 possessed by corn in the ear for seed purposes. The use to 
 which it was to be put was not of an extraordinary char- 
 acter, and hence the carrier could be held for the difference 
 in price which sead corn would bring for this purpose, as 
 weU as another.' 
 
 An extraordinary apphcation of the general doctrine that 
 the carrier is entitled to notice of the peculiar condition of 
 a passenger, to create liability for damages resulting from a 
 want of the extra care that such condition required, is made 
 
 1 Bird V. Brown, 4 Exch., 786. 
 
 • Hastings v. Pepper, 11 Pick., 41 ; Mechanics', etc., Bank v. Gordon, 5 
 La. An., 604. 
 3 Missouri Pac. K'y Co. v. Nevin (Kansas), 2 Pac. Rep., 795.
 
 NOTICE TO CAKEIERS AND OTHER BAILEES. 261 
 
 in Pullman Palace Car Co. v. Baker.^ The facts of the case 
 were that plaintiff, a married woman, was traveling on one 
 of defendant's sleeping cars, which in consequence of de- 
 fective construction caught fire. In order to avoid burning 
 to death she was compelled to leave her berth and the car 
 in her night clothes, and in her bare feet. She was in a 
 normal state of health, but it happened during her period 
 of menstruation, and in consequence of the exposure the 
 flow of the menses was arrested, producing serious and per- 
 manent injury. There was no question but that defendant 
 was negligent in permitting the car to take fire, l^ov was 
 there any pretense that the natural state of health of plaint- 
 iff contributed in any way to the burning of the car, nor 
 that she was to be regarded as negligent for being in that 
 condition at that particular time. The court seemed to re- 
 gard her as a sick person, and compared her state of health 
 to that of a person with a cut foot. The conclusion was 
 that slie could not recover, for the reason that she did not 
 give notice to the company of her condition, presumably to 
 the end that it would have taken extra precautions against 
 fire, or might have given her timely notice of the conflagra- 
 tion, or would have furnished her a safe and comfortable 
 retreat where she would not have been exposed, in lier bare 
 feet, to the inclement weather.^ 
 
 § 4:80b. Notice of Loss by Shippers. — The necessity for 
 any special notice of a claim for damages must be one 
 which arises out of the contract with the carrier. But even 
 where such notice is stipulated for, the contract will receive 
 a reasonable construction, and the liability may be fixed by 
 a substantial compliance with the terms of the contract. 
 Thus when cattle were received for transportation, under a 
 contract that " no claim for loss or damage on five stock 
 will be allowed unless the same is made in wi'iting, before 
 
 14 Colo., 344. 
 
 21 am not aware of a single instance where this valuable additioh to 
 the law governing common carriers has been cited with approval. It 
 has probably been overlooked.
 
 262 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 or at the time the stock is unloaded," and verbal notice of 
 a claim for injmy at the time of unloading, and written 
 notice three da3's after, were given, and received by the com- 
 pany without objection as to form or time, it was held a 
 substantial compliance with the contract, and the company's 
 liabihty was fixed thereby.' 
 
 1 Rice V. K. P. R'y, 63 Mo., 314.
 
 NOTICE OF SUIT IN EJECTMENT, TO WAKEANTOK. 2G3 
 
 Y. Notice of Suit in Ejectment, to "Wakrantok.^ 
 
 § 480c. The Remedy Wliich Depends on the Notice. 
 480d. The Form and Sufficiency of Notice. 
 480e. Waiver of Notice. 
 480/. By Wliom the Notice Should be Given. 
 
 § 480c. The Remedy Which Depends on the Notice. — 
 
 Oae of the most important of the ancient covenants in a 
 deed was that of warranty, whereby the grantor of the 
 freehold and his heirs were bound, either upon voucher or 
 by judgment in a writ of warrantia chartcE, in case of evic- 
 tion of the grantee or his heirs by paramount title, to yield 
 other lands of equal value." But the heir of the warrantor 
 was bound only on condition that he held, as assets, other 
 lands of equal value by descent. Warranty was of two 
 kinds: Lineal and collateral. The former was where the 
 heir derived title, either from or through the ancestor who 
 made the Avarranty; the latter Avas where the warranty 
 barred the heir from claiming the land by any collateral 
 title, although his own was not derived from the warranting 
 ancestor, upon the presumption that he might thereafter 
 have assets by or through the ancestor. 
 
 One of the incidents of the ancient remedy of warrantia 
 chartoB was that when the warrantor was " vouched," as the 
 process of summons was called, and judgment obtained 
 against the tenant who was evicted, judgment in favor of 
 the latter Avas entered at the same time against the war- 
 rantor. By the civil law, as adopted in the state of Loui- 
 siana, if the purchaser by warranty deed fails to cite his 
 vendor or warrantor, the latter cannot be held liable for 
 the costs and damages resulting from defending the action. 
 B}'^ the Spanish law, the vendee who failed to cite his vendor 
 in warranty lost all recourse on him.^ 
 
 I For the suggestion of this subject as a branch of the law of notice, 
 the author cheerfully acknowledges liis indebtedness to Hon. James O. 
 Pierce of Tennessee. See 6 Soutli. Law Eev., 719. 
 
 2 Coke on Litt., 365 ; 4 Kent, Com., 468. 
 
 3 Delacroix v, Cenas, 20 Martin (La.), 356.
 
 2G4 NOTICE BY wnicn liabilities are created. 
 
 The remedy b}" ancient warranty never gained a practi- 
 cal foothold in the United States, and is, by statute, shorn 
 of some of its incidents upon Avhich much learning and sub- 
 tlety have been wasted. The modern covenant of war- 
 ranty still possesses a semblance of the qualities of the 
 ancient remedy. But instead of the summons, the war- 
 rantor, in case of a suit against his grantee, immediate or 
 remote, is serv^ed with a notice. In case of his failure to 
 appear in response to notice, or in any event, the judgment 
 against his grantee becomes conclusive, not only in favor 
 of the plaintiff in that action, but in favor of the defend- 
 ant, when the latter sets up the paramount title by which 
 he was evicted, in an action on the covenant of warranty.^ 
 But the rule is, at least in the common law states, that the 
 party sued in ejectment loses no right of action against 
 the warrantor by a failure to serve the latter with notice.- 
 The effect of such failure is merely to leave the question of 
 l)aramount title open to contest in the action on the cove- 
 nant. The warrantor is not concluded by the judgment 
 against his grantee.^ He is still at liberty to defend the 
 action on tlie covenant of warranty, by contending that 
 his title was perfect; whereas, if he has been properly noti- 
 fied of the action against his grantee, there will be little 
 beyond the measure of damages for the evicted party to 
 prove when he sues for breach of covenant of warranty.'' 
 The measure of damages is generally the price paid for the 
 land by the evicted party, with interest and costs.'^ But in 
 
 1 Eawle on Covenants, 218 ; Miner v. Clark, 15 Wend. , 425 ; Greenlow 
 V. Williams, 2 Lea, 533. 
 2 King V. Kerr, 5 Ohio, 154; Claycomb v. Hunger, 51 111., 378. 
 
 3 Rawle on Covenants, 232. 
 
 4 Chamberlain v. Preble, 11 Allen, 870; Cooper v. Watson, 10 Wend., 
 205; Turner v. Goodrich, 26 Vt., 708; Hinds v. Allen, 34 Conn., 195 
 Pitkin r. Leavitt, 13 Vt., 379; Poul v. Witman, 3 Watts & Serg., 409 
 Chapman V. Holmes, 10 N. J. L., 20; Wimberly v. Collier, 32 Ga., 13 
 Boyd V. Whitfield, 19 Ark., 447; Wendel v. North, 24 Wis., 223. 
 
 5 Pitcher v. Livingston, 4 Johns., 1; Marston v. Hobbs, 2 Mass., 433; 
 Talbot 17. Bedford, Cooke (Term.), 447; Lowther v. The Commonwealth, 
 1 Hen. & Munf., 202; Stout i'. Jackson, 2 Rand., 132; Bennet v. Jen-
 
 NOTICE OF SUIT IN EJECTMENT, TO WAKEANTOE. 265 
 
 some cases it has been decided to be the value of the land 
 at the date of eviction.^ 
 
 The principle upon which this notice operates conclu- 
 sively upon the warrantor is that, upon being informed of 
 the pendency of the action to try the title of land which 
 he has warranted, he has an opportunity to appear and de- 
 fend the same, or at least fuimish the covenantee the means 
 of making such defense, and if he sees proper to stand by, 
 and, for want of the evidence which it was his duty to sup- 
 ply, suffer judgment to pass against his grantee, he shall 
 not be heard to question the judgment by which the latter 
 was evicted.'^ And the warrantor is even held to be thus 
 estopped by notice, though the plaintiff in the action on 
 the warranty, in order to save himself from eviction, has 
 been forced to purchase the outstanding paramount title.' 
 The notice is also held to have the same effect when the 
 suit is brought by the covenantee to recover possession of 
 the land purchased with warranty.^ 
 
 § 4:80d. The Form and Sufficiency of tlie Notice.— No 
 particular form of words is essential to render the notice 
 binding upon the party served. Its matter must be gov- 
 erned by the purpose which it is intended to subserve. But 
 in every case it must be sufficiently certain and ex])licit to 
 convey to the mind of the party notified that the purchaser 
 has been sued by one claiming to hold the paramount title 
 adverse to the grantor, and that the latter is required to 
 defend the suit.^ "Whether it should be written or verbal 
 
 kins, 13 Johns., 50; Cox v. Strode, 2 Bibb, 273; Slieets v. Andi-ews, 2 
 Blackf.,274. 
 
 iGore V. Brazier, 3 Mass., 533; Caswell v. Wendell, 4 Mass., 523; 
 Sweet r. Patrick, 3 Fairf., 1; Sterling v. Peet, 14 Conn., 245; Park v. 
 Bates, 12 Vt., 381; Bissell v. Erwin, 13 La., 143. 
 
 2Lisk V. Woodruff, 15 111., 15; Chamberlain v. Preble, 11 Allen, 370. 
 
 3 McConnell r. Downs, 48 111., 271 ; Lisk v. AVoodruff, 15 111., 15. 
 
 4 Brown v. Taylor, 13 Vt., 637 ; Gragg v. Richardson, 25 Ga., 570; White 
 V. WilUams, 13 Texas, 258, The fact that the land to which the gi-antor 
 had no title was inadvertently included in the warranty deed was held 
 to be a good defense to an action on the covenant. Steward v, Had- 
 ley, 55 Mo., 235. 
 
 5 Paul V. Witman, 3 Watts & Serg., 410; Rawle on Gov., 233.
 
 26G NOTICE BY WHICH LIABILITIES AEE CBEATED. 
 
 is not definitely settled by a very imposing array of author- 
 ity; but if otherwise sufficient may always be in writing. 
 So far as the authorities examined determine the question, 
 however, it Avill answer the piu'pose equally well if commu- 
 nicated verbally.^ But the notice, to be sufficient in point 
 of time, should be given so long before the trial of the 
 issues that the grantor may have an opportunity to present 
 his title. He should probably have the same right to delay 
 the trial, upon a proper showing, as though he were defend- 
 ing as a part}^ to the action.- 
 
 § 480e. Waiver of Notice. — The effect of this notice 
 not being greater than that of service of original process, 
 it may be waived by the appearance of the warrantor 
 and his participation in the defense. The object of the 
 notice is that he may have this opportunity, and where he 
 avails himself thereof, upon informal notice, he stands in 
 the position of a defendant who voluntarily appears. He 
 is not, it is true, a party to the record, but neither does he 
 become a party to the judgment. But he is present for all 
 the purposes intended by the notice, and his rights may be 
 affected by the judgment to the same extent as though he 
 had been specifically notified of the suit.' 
 
 §480f. By Whom the Notice Should be Given.— The 
 partial analogy between the notice served upon the war- 
 rantor and the process served upon a party defendant does 
 not render it essential that the former should be served by 
 an officer, or by one who would be competent to serve a 
 summons in the case. But though it be of little importance 
 by whom the notice is served, it is of considerable impor- 
 tance by whom the notice is given. The notice should pro- 
 ceed from the warrantee or party relying on the covenant.* 
 But whether the notice, in order to render the judgment 
 conclusive, should be directly from the defendant to a re- 
 mote grantor, or whether it might not be equally effective 
 
 1 Somers v. Schmidt, 24 Wis., 417; 1 Am, Rep., 191. 
 
 2 Davis V. Wilbom-ne, 1 Hill (S. C), 28 ; Greenlow v. Williams, 2 Lea, 539. 
 
 3 Chamberlain v. Preble, 11 Allen, 373. 
 < Somers v. Schmidt, 24 Wis., 417.
 
 NOTICE OF SUIT IN EJECTMENT, TO WAEEANTOE. 267 
 
 if given by tlie immediate grantor of the defendant, is not 
 so clear. 
 
 It has been ably argued that for the reason that the 
 effect of the judgment, when relied upon as conclusive evi- 
 dence of the paramount title, and hence of the breach of 
 warranty, operates by way of estoppel, the principle that 
 estoppels should be mutual would render notice from an in- 
 termediate warrantor nugatory ; that " the estoppel results 
 from the operation of the notice, as an equivalent to process, 
 in making the covenantor a quasi party ; " and that it would 
 seem contrary to estabUshed analogies to allow one ]3arty 
 the benefit of e\adence created in a transaction between 
 himself and another, when he is seeking to enforce a right 
 against a third party.^ It is true that the effect of the no- 
 tice is to make the question of paramount title res judicata, 
 although the judgment was rendered in a suit between other 
 parties. But it has this effect, regardless of the person who 
 gives the notice. The question, as stated by Judge Pieece, 
 in the Southern Law Review, is where A. conveyed to B., 
 and B. to C. by covenant of general warranty, and D. brings 
 his action against the latter, who gives notice to B., and B. 
 to A., whether C, in an action against A., after judgment 
 of eviction, may have the benefit of the judgment as con- 
 clusively establishing the breach of the latter's covenant. 
 It is not questioned that the notice served upon B. would 
 have this effect in an action against him, nor that it would 
 have been equally effective against A. had he been notified 
 by C. instead of by B. This is a question that can hardly 
 be decided upon the supposed analogy which the notice 
 bears to process by which one is made a party to the judg- 
 ment. The means are too dissimilar, and the ends aimed 
 at, too widely different. The condition of a warrantor, 
 whether mediate or immediate, when thus affected by a 
 judgment against his warrantee, is unique. Yet it is pre- 
 cisely what he bargained for. The notice is not necessarily 
 
 1 Hon. James O. Pierce, in 6 South. Law Rev., N. S., 719, 728. Citing 
 Petrie v. NuttaU, 11 Esch., 569.
 
 268 NOTICE BY WUICn LIAJBILITIES AKE CREATED. 
 
 a matter of record ; nor is judgment entered against the 
 warrantor. It is not teclmical notice that he is entitled to, 
 but actual, specific, timely information, that should proceed 
 from tlie party interested in bringing the matter to his at- 
 tention. The object of the notice is to afford the cove- 
 nantor an opportunity to appear and show that his deed 
 passed a good title, and hence that there is no breach of 
 warrant}^ It is difficult to comprehend why the purpose 
 of the notice and its authenticity are not as well preserved 
 when it comes from C. through B. to A. as though it went 
 from C. to A. direct. If a negotiable promissory note is 
 dishonored in the hands of the holder, each indorser is as 
 effectually bound by notice from his immediate indorsee, 
 where information of the fact is communicated from one to 
 'the other, as though all were directly notified by the holder 
 of the note.^ It is none the less notice from the party who 
 relies upon the covenant merely because it has been trans- 
 mitted through an intermediate party equally interested in 
 conveying the notice to the original warrantor. 
 
 For the foregoing reasons the writer feels constrained to 
 take a different view of this question from that laid down 
 by the learned ^\T^'iter who has called attention to this 
 branch of the subject. The right to claim the benefit of 
 the notice should be enjoyed by the warrantee who has 
 been evicted, as against any prior warrantor who has re- 
 ceived notice of the suit from an intermediate warrantor, 
 who in turn has been notified by the party evicted. 
 
 If the question were one of principle, entirely uncon- 
 trolled by authority, it would not be going too far to say 
 that if the warrantor had certain and specific knowledge 
 or information from any reliable source, or by any means, 
 that the action was pending, and he had sufficient oppor- 
 tunity to defend his title, he would be concluded by the 
 judgment when sued by any subsequent warrantee. 
 
 i Post, % 195.
 
 NOTICE BY WHICH LIABILITY FOK TOET MAY BE FIXED. 209 
 
 VI. KoTicE BY Which Liability for Tokt May be Fixed. 
 
 § 4805r. The Liability of Municipal Corporations for Nuisance — Fail- 
 ure to Keep Highway in Repair. 
 
 4807i. Notice to Abate Nuisance. 
 
 4S0i. Dangerous Animals. 
 
 4S0Jc. Notice of Dangerous Condition of Machinery — Misconduct of 
 Employees, etc. 
 
 § 480g. The Liability of Municipal Corporations for 
 Nuisance — Failure to Keep Highway in Repair. — "For 
 
 taking, or refusing to take, strictly governmental action, 
 municipal corporations are under no responsibility whatever 
 except the political responsibility to their corporations or 
 to the state." ^ Nevertheless there is a class of duties im- 
 posed upon municipal corporations which they owe not only 
 to their own citizens, but to other individuals as well. Thus 
 it is generally recognized as the duty of a town or city to 
 keep in repair the streets and sidewalks of which it assumes 
 control. As a consequence of this duty to individuals, it 
 may become liable to those injured by a failure in its faith- 
 ful discharge.- But this liability is of statutory creation, 
 and is subject to certain conditions.^ In an action against 
 a town, to recover damages for an injury sustained from a 
 defect in a public highway, it must be shown that the 
 authorities had notice of the defect, prior to the injury.* 
 Yet where an injury was received from the giving way of a 
 bridge, the keeping in repair of which was by statute im- 
 
 » Cooley on Torts, 620. 
 
 2Cooley on Torts, 625; Munson v. Town of Derby, 37 Conn., 298; 9 
 Am. Rep., 332. 
 
 3 Town of Waltham v. Kemper, 53 111., 346; 8 Am. Rep., 652; Wliite 
 V. County, 58 111., 297; 11 Am. Rep., 65; Young v. Commissioner, etc., 
 2 Nott & McC, 537; Mower v. Leicester, 9 Mass., 247; PeiTy v. John, 79 
 Pa. St., 411 ; Niles v. Martin, 4 Mich., 557; Detroit v. Blakely, 21 Mich., 
 84 ; State v. Cumberland, 7 R. I., 75 ; Sutton r. Board of Police, 41 Miss., 
 286; Huffman v. San Joaquin Co., 21 Cal., 426; Barbour Co. v. Horn, 48 
 Ala., 649; Cooley on Torts, 622. 
 
 *Goodnough v. Oshkosh, 34 Wis., 549; 1 Am. Rep. 203.
 
 270 ■ NOTICE BY WHICH LIABILITIES ARE CREATED. 
 
 posed upon the municipal corporation, it was held that 
 though the defect was a latent one which could not be dis- 
 covered by skilled persons employed by the corporation, the 
 corporation was liable.^ 
 
 The fact of notice to the controlling authorities need not 
 in ever}" instance be established by evidence of express no- 
 tice or positive personal knowledge of the defect complained 
 of, as it may be presumed where it has existed for a consid- 
 erable length of time prior to the injury, and must have 
 been detected by the officers of the municipahty in the or- 
 dinary discharge of their duties.^ Thus, where a traveler 
 was injured, without fault or negligence on his part, in con- 
 sequence of the removal of some planks from a bridge, a 
 city that was bound to keep the bridge in repair was held 
 liable, though no actual notice of the defect had been given, 
 sufficient time having elapsed prior to the injury to render 
 the defective condition of the bridge a matter of notoriety.' 
 But whether notice to the municipality can be inferred from 
 the lapse of time is a question for the jury, and cannot be 
 laid down in any case as a conclusion of law.'* 
 
 In order to render the corporation liable it is not essential 
 that the immediate cause of the injury of which it has no- 
 tice shall be a defect in the highway which has been con- 
 demned or formally dedicated to public use. Thus, where 
 plaintiff was passing along a street which the city was 
 bound to keep in repair, and, in order to avoid the kick of a 
 mule, fell or jumped into an excavation on the border of 
 
 iRopho, etc., Townships v. Moore, 68 Pa. St., 404; 8 Am. Rep., 202; 
 Mocliler v. Town of Shaftsbury. 46 Vt., 580; 14 Am. Rep., 634. 
 
 2Goodnough v. Oslikosh, 24 Wis., 549; Requa v. City of Rochester, 45 
 N. Y., 129 ; 6 Am. Rep., 52. See Wisenberg v. City of Appleton, 26 Wis., 
 56; 7 Am. Rep., 39. 
 
 3 Requa V. City of Rochester, 45 N. Y., 129; Green r. Danby, 12 Vt., 
 388; CWcago v. McCarthy, 75 111., 602; Peru v. French, 55 lU., 317; 
 Chicago V. Langlass, 66 111., 361 ; Galesburg v. Higley, 61 lU., 287. 
 
 * Colby V. Inliabitants of AVestbrook, 57 Me., 181; 2 Am. Rep., 30; 
 Reed v. Northfield, 13 Pick., 94; Harnden v. New Haven, etc., Co., 27 
 Conn., 158; Bragg v. Bangor, 51 Me., 532; Holt v. Penobscot, 56 Me., 15.
 
 NOTICE BY WHICH LIABILITY FOR TOUT MAY BE FIXED, 2T1 
 
 the street, of wliich the city had notice that it rendered the 
 street dangerous, the city was held liable for the resulting 
 injuries.^ 
 
 § 480h. Notice to Abate Nuisance. — The right of an 
 individual to abate a nuisance which is the result of the acts 
 or omissions of another, in some instances depends upon 
 notice. Thus, where one party builds a house on land 
 where another has a right of common, before the latter 
 could forcibly abate the nuisance it was held his duty to 
 notify the party responsible therefor.'- The object of this 
 is, of course, to enable the wrong-doer to remove the nui- 
 sance. But the party responsible for a nuisance is not, in 
 every case, entitled to notice. Where the act complained 
 of is one of positive wrong or wilful negligence, or the 
 security of life or property is endangered and the danger 
 seems imminent, the party threatened with the injury may 
 abate the same without giving notice to the "WTong-doer or 
 waiting for him to remove it.^ Where, however, the nui- 
 sance is merely permitted to exist, and the case is not very 
 urgent, notice, and an opportunity to remove it, is essential 
 before the complaining party would be justified in forcibly 
 abating the same.* 
 
 § 480i. Dangerous Animals. — Whether the oAATier of 
 animals may be held liable for injuries committed by them 
 is not, at common law, a question of diligence in the care 
 of such animals, so much as it is one of notice or kno\vledge 
 of the propensity of the animal to inflict injur3\' Thus, 
 the keeping of a vicious dog, after notice of his disposition, 
 was held to render the owner liable to any one injured, 
 
 1 Basset v. City of St. Joseph, 53 Mo., 290 ; 14 Am. Rep., 446. 
 
 2 Baldwin v. Smith, 83 lU., 162; Perry v. Fitzhowe, 8 Q. B., 757; Bur- 
 ling V. Read, 11 Q. B., 904; Davis v. WilHams, 16 Q. B., 546; Meeker v. 
 Van Rensselaer, 15 Wend., 397; State v. Parrott, 71 N. C, 311. 
 
 3 Earl of Lonsdale v. Nelson, 2 B. & C, 302. 
 
 * Jones V. "Wilhams, 11 M. & W., 176; Meeker v. Van Rensselaer, 
 15 Wend., 397; Van Wormer v. Albany, 15 Wend., 262; Occum Co. v. 
 Sprague Co., 34 Conn., 529; Hart v. Albany, 3 Paige, 213. 
 
 5 May V. Burdett, 9 Q. B., 101 ; 1 Hale, P. C, 480, pt. 1, ch. 33.
 
 272 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 without allegation or proof of special negligence on the part 
 of such owner.^ And where bees inflicted injuries upon 
 horses, tlie owner of the latter was held unable to recover 
 from the owner of the former without proof of notice of 
 the mischievous propensity of the bees.^ But the notice 
 which is sufficient to render the owners of dangerous or 
 mischievous animals responsible is exceedingly informal. 
 It need not be express notice ; may be inferred from the 
 owner's acquaintance "with the offending animal, and its 
 notorious disposition to evil. 
 
 § 48()k. Notice of Dangerous Condition of Machinery — 
 Misconduct of Employees, etc. — Where individuals or cor- 
 porations are engaged in occupations which are from their 
 nature fraught with unusual danger to tlie health or security 
 of others, they must be presumed to take notice of the in- 
 juries likely to ensue from the employment of the means 
 necessary to the business, so far as to impose upon them the 
 duty of care proportioned to the hazard, and for want of 
 such care will be held liable to those injured in consequence 
 of the owner's negligence.^ Upon the other hand, when 
 one engages in a hazardous, though lawful, occupation, as 
 an employee, he is presumed to take notice of the incidental 
 risks of the business in which he encjao'es, and cannot hold 
 the master liable for injuries naturally resulting by accident 
 therefrom.* But there are injuries resulting from carrying 
 on a lawfid business, in consequence of particular defects 
 in the appliances used by the proprietor, as well as injuries 
 from the negligence or wilful misconduct of employees, 
 
 I Wolf V. Chalker, 31 Conn., 121; Lavorone v. Mangianti, 41 Cal., 138. 
 See Besozzi v. Harris, 1 F. & F., 92; Van Lenven v. Lyke, 1 N. Y., 515; 
 Rex V. Huggins, Ld. Eaym., 1583; Canefox v. Crenshaw, 24 Mo., 199; 
 2)0st, % 695. 
 
 -'Earl V. Van Alstine, 8 Barb., 630. 
 
 3111. Cent. R. Co. v. McClelland, 42 111., 355; Frankford, etc., Co. v. 
 Philadelphia, etc., R. Co., 54 Pa. St., 345; Anderson v. Cape Fear, etc., 
 Co., 64 N. C, 399; Spalding v. Chicago, etc., R. Co., 30 Wis., 110; Hoyt 
 V. Jeffers, 30 IMich., 181. 
 
 * Cooley on Torts, 641.
 
 NOTICE BT WHICH LIABILITY FOR TOET MAT BE FIXED. 273 
 
 "whicli may be inflicted upon those who are in no way con- 
 cerned in the business. For these the proprietor may be 
 held Hable. But if such liabihty does not actually depend 
 upon the proprietor's having notice of the defect, or the in- 
 competence of the employee, proof of such knowledge or 
 notice would at least have a tendency to aggravate the of- 
 fense, and affect the measure of damages in an action 
 brought by one upon whom the injury was inflicted.' And 
 when the question of notice figures in this manner in an 
 action for a wrong, either to fix the liability or enhance 
 the damages, notice to an oiScer, agent or servant of the 
 wrong-doer, when such officer, agent or servant is placed in 
 charge of the subject concerning which the notice is given, 
 will be as binding as though notice had been given to the 
 defendant in person.^ 
 
 iMalick V. Tower Grove, etc., R. Co., 57 Mo., 17; Baldwin v. Cassella, 
 L. R., 7 Ex., 325; Hoyt v. Jeffers, 30 Mich., 181. 
 2Posf, § 695. 
 18
 
 274 NOTICE BY "SVniCII LIABILITIES AKE CHEATED. 
 
 YII. Notice By "Which Ceetain Conteact Liabilities Mat 
 
 BE Fixed. 
 
 ^ 480Z. Contracts of Indemnity — Notice of Suit. 
 480m. Measure of Damages Affected by Notice. 
 480n. Notice of Customs that Affect Contracts — General Usages 
 
 and Customs. 
 480o. Knowledge or Notice Must be Previous to the Transaction. 
 
 § 4801. Contracts of Indemnity — Notice of Suit.— The 
 
 subject of this title embraces in a general way that which 
 has been more particularly considered in another place. ^ 
 "When the contract of indemnity is of the most general 
 character, against loss of any kind, whether it embraces 
 stipulations for notice in case of loss or not, it goes without 
 saying, that, before the party indemnified can recover, he 
 must give notice of his loss to the indemnitor. As, for ex- 
 ample, contracts of insurance and the like. "Where notice 
 is expressly stipulated for, as is usually the case, the want 
 of it will defeat the action.^ "When the contract is to in- 
 demnify a purchaser or surety against the result of a suit, 
 the covenantee has a right to defend, either in the action 
 against which he undertakes to indemnify, or the action on 
 his contract. Hence, to bind him by the judgment against 
 the indemnified party, he must have due and timel}^ notice 
 of the action, to the end that he may make his defense ; ^ 
 otherwise, when the party to be indemnified brings his ac- 
 tion against the indemnitor, the latter is at liberty to defend 
 against the demand, and will not be concluded by the judg- 
 ment.'* 
 
 1 Ante, §§ 444 et seq., 480c et seq. 
 
 2 Bridgeport Ins. Co. v. Wilson, 34 N. Y., 275. 
 
 SRapelye v. Pi-ince, 4 Hill, 119; Chamberlain v. Godfrey, 36 Vt., 380; 
 Patton V. CaldweU, 1 Ball., 419; Thomas v. Hubbell, 15 N. Y., 405, 
 
 4 Smith V. Compton, 8 B. & Ad., 407; Marltalet v. Clary, 20 Ark., 251 ; 
 Boyd V. Whitfield, 19 Ark., 447; Ti-ain v. Gold, 5 Pick., 380; Reggio v. 
 Braggiotti, 7 Cush., 166; Collingwood r. Irwin, 3 Watts, 306; Baynard 
 f. Harrity, 1 Houst., 200.
 
 NOTICE BY WHICH CONTKACT LIABILITIES MAY BE FIXED. 2 75 
 
 § 480m. Measure of Damages Affected by Notice. — In 
 
 an action brouglit on a contract of indemnity against the 
 result of a suit, the measure of damages is sometimes held 
 to be fixed by notice. Thus, where a surety is sued on his 
 undertaking, it is decided that he is under no obligation to 
 pay it to save costs, at least not unless he is expressly noti- 
 fied that the principal has no defense to the demand. And 
 if the debt .or demand is liquidated, it is not his duty to 
 make a defense in order to entitle him to recover against 
 his indemnitor the costs paid in case of default.' But where 
 the action is on an unliquidated demand, or the liability is 
 disj)utable, the general rule seems to be that the defendant 
 may give notice to the party whose duty it is to indemnify, 
 and not defend the action unless so directed ; or he may use 
 his best judgment in the matter, if the facts seem to war- 
 rant a defense, holding the principal, or indemnitor, for 
 the costs and expenses of the suit.- The most that notice 
 of the suit from the indemnified party can do to affect the 
 measure of damages, in his action on the contract of indem- 
 nity, is (1) by making the judgment binding on the indem- 
 nitor whatever be the amount, and (2) by throwing upon 
 the indemnitor the responsibility of deciding to what extent 
 costs shall be incurred in defending the original action. 
 
 § 4r80ii. Notice of Customs that Affect Contracts — 
 General Tsages and Customs. — When a custom or usage 
 is general, in the broadest sense of the term, it will be bind- 
 ing upon all, upon the presumption that it is known to 
 every one.^ But the term " general," as applied to customs 
 and usages, has a qualified signification. When it is so 
 general as to apply to every person everywhere, it is held 
 
 1 Baker v. Martin, 3 Barb., 634; Elwood v. Deifendorf, 5 Barb., 412; 
 Holmes v. Weed, 24 Barb., 546; Wright v. Whiting, 40 Barb., 240; 
 Hulett V. Soullard, 26 Vt., 295; Blenden v. Charles, 7 Bing., 246; Craig 
 V. Craig, SRawle, 91; Coulter v. Morgan's Adm'r, 12 B. Mon., 278. 
 
 2Duxbiiry v. Vermont, etc., E. Co., 26 Vt., 751 ; Pitkin v. Leavitt, 13 
 Vt., 379; Wynn v. Brooke, 5 Eawle, 106; Dubois v. Hermance, 56 N. Y., 
 673; Westfield v. Mayo, 122 Mass., 100; Ottumwa v. Parks, 43 la., 119. 
 
 3 Tyson v. Smith, 1 Nev. & P., 784.
 
 276 NOTICE BY WHICH LIABILITIES AKE CREATED. 
 
 to amount to the common law.' A local or particular cus- 
 tom is general witliiii the community where it prevails, and 
 must be general to this extent in order to be valid and bind- 
 ing upon those who are not specially notified of its exist- 
 ence.' 
 
 When a custom of trade is general within a particular 
 city, it will be presumed to be known to those dealing at 
 that market, whether as buyer or seller. But proof of the 
 existence of a custom in several cities will not suffice to 
 establish a general custom upon the river where such cities 
 are situated,' • 
 
 When one is to be affected by a certain usage or custom, 
 he must have knowledge or notice of its existence, and the 
 only difference between general and particular usages in 
 this respect is in the circumstances from which this knowl- 
 edge will be presumed. Every custom is both general and 
 particular, depending upon the relation which it bears to 
 the persons to be affected. The custom of merchants in a 
 particular city is general in its effects upon those dealing 
 there, and particular 'as to the rest of the world. The 
 usages of a bank are general in reference to its own custom- 
 ers, and particular as they affect strangers. In either case 
 those without the purview of the notice in a general way 
 can only be affected where they have particular notice. In 
 any event, there must be knowledge, either actual or pre- 
 sumed.* And where it is a particular custom of a certain 
 
 1 Fitch V. Rawling, 2 H. Black., 393, 
 
 2 Citizens' Bank v. GraflSin, 31 Md., 507; Folsom v. Merchants', etc., 
 Ins. Co., 38 Me., 414; Commonwealth v. Mayloy, 57 Pa. St,, 291; Oel- 
 ricks V. Ford, 33 How., 49; Richardson v. Goddard, 23 How., 44; Coff- 
 man v. Campbell, 87 lU., 98; Taunton Copper Co. v. Merchants' Ins. Co., 
 23 Pick., 108; Gleason v. Walsh, 43 Me., 397; Perkins v. Jordon, 35 Me., 
 23; Thompson v. Hamilton, 13 Pick., 436; Clark v. Baker, 11 Mete. 
 (Mass.), 188. 
 
 3 Walsh V. Frank, 19 Ark,, 270, 
 
 * Dodge V. Favor, 15 Gray, 83; Fisher v. Sargent, 10 Cush., 250; Mar- 
 lin V. Maynard, 16 N, H., 165; Pierce v. Whitney, 29 Me., 188; Martin 
 V. Hall, 26 Mo., 386; Walsh v. Miss. Trans. Co., 52 Mo., 434; Bradley v. 
 Wheeler, 44 N, Y., 500; Dawson v. Kittle, 4 HiU, 107; WhiteseU v.
 
 NOTICE BY WHICH CONTKACT LIABILITIES MAY BE FIXED. 277 
 
 branch of business, it is not presumed to be known even to 
 dealers ^ who would be affected by the general usages of the 
 same business without proof of notice,'^ 
 
 § 480o. Knowledge or Notice Must be Preyious to the 
 Transaction. — Whether the knowledge of the custom with 
 which it is sought to affect a party in a particular trans- 
 action is actual or presumed, it must be prior to the trans- 
 action in which the question of liability is raised. If the 
 presumption of knowledge is based upon the fact that the 
 party to be charged is a dealer or customer, this relation 
 must have previously existed. Thus, where it was sought to 
 charge a servant with notice of a custom to give notice 
 prior to quitting the employ of the master, it was held that 
 he must have had notice of such a custom at the time of 
 entering upon the service. And hence the fact that the 
 servant was in the employ of the master could not be relied 
 on as raising a presumption of knowledge.* Where interest 
 was charged on an account, under an alleged custom among 
 merchants to charge interest, and it appeared that no such 
 charge had been made against defendant on similar ac- 
 counts, it was held that he was not bound by the custom.* 
 The case was different where, in a subsequent case, it was 
 found that not only was the custom uniform, but that inter- 
 Crane, 8 W. & S., 369; Patterson v. Franklin Ins. Co., 23 Pittsb. L. J., 
 201 ; Lewis v. The Success, 18 La. An., 1 ; Boyd v. Graham, 5 Mo. App., 
 403; Sugart v. Mays, 54 Ga., 554; Scott v. Whitney, 41 Wis., 504; Power 
 V. Kane, 5 Wis., 265; Bliven v. New England Screw Co., 23 How., 420; 
 National Bank v. Burkliardt, 100 U. S., 686; Dugai-d v. Edwai'ds, 50 
 Bai-b., 289; Pitre v. Offut, 21 La. An., 679. 
 
 1 Williams v. Niagara F. Ins. Co., 50 Iowa, 561; Carter v. Boelim, 3 
 Burr., 1905; Stebbins v. Globe Ins. Co., 2 Hall, 632; Taylor v. Mtna 
 Life Ins. Co., 13 Gray, 434; Howard v. Great Western Ins. Co., 109 
 Mass., 384. 
 
 2 Grant v. Lexington Fire Ins. Co., 5 Ind., 23 ; Toledo, etc., Ins. Co. v. 
 Speares, 16 Ind., 52. 
 
 3 Stevens v. Reeves, 9 Pick., 198; Collins v. New England Iron Co., 115 
 Mass., 23, 
 
 « Wood V. Hickok, 2 Wend., 501. See, also, Trotter v. Grant, 3 Wend., 
 413.
 
 278 NOTICE BY WHICH LIABILITIEa AEE CEEATED. 
 
 est had been charged in former accounts, and paid by the 
 defendant.' 
 
 A single case of dealing with a particular establishment 
 will not raise the presumption of knowledge of its usages 
 and customs, so far as such knowledge apphes to customers 
 or those dealing with such establishment. Thus where, in 
 response to a written circular from a hrm of stock brokers, 
 guaranteeing a fluctuation of eight per cent, on sixty-day 
 " straddle " contracts to a certain amount, a new customer 
 sent the brokers the required amount for such investment, 
 and during the sixty days the stock purchased rose, but the 
 brokers, according to a custom, had sold the same stock 
 " short," prior to purchasing, and thereby lost, it was held 
 that the customer, being ignorant of such usage, was not 
 bound by it, but might claim under his contract.- 
 
 There is no legal presumption that a traveler who alights 
 at an inn has knowledge of the particular usages of that 
 particular inn.^ ^Nevertheless, there are numerous and well 
 supported decisions to the effect that those who send goods 
 to a particular market, even for the first time, or engage in 
 the peculiar dealings of any business house that has certain 
 customary methods of carrying on its trade, will be bound 
 by such customs, upon the presumption that they made 
 themselves acquainted with them before contracting.^ Thus, 
 when a note is made for the purpose of being negotiated at 
 a particular bank, a general custom of the bank, which is 
 not contrary to law, in respect to the demand of payment 
 and notice of dishonor, will bind the parties on the presump- 
 tion that they were acquainted with it.^ But to have this 
 
 iMerch v. Smith, 7 Wend., 315. 
 
 2HaiTis V. Tumbridge, 8 Abb. N. C, 291. 
 
 -Berkshire, etc., Co. v. Proctor, 7 Cush., 417. 
 
 *Lonergan v. Stewart, 55 111., 44; Bailey v. Bensley, 87 El., 556; 
 Graves v. Legg, 11 Exch., 643; Sutton v. Tatham, 10 Ad. & Ell., 27. 
 
 SRenner v. Bank of Columbia, 9 Wheat., 583; Mills v. Bank of United 
 States, 11 Wheat., 431; Dorchester v. New England Bank, 1 Cush., 177; 
 Smith V. Whiting, 13 Mass., 6; Bank of Columbian. Fitzhugh, 1 Har. & 
 G., 239; Bank of Washington v. Triplett, 1 Pet., 25.
 
 NOTICE BY WHICH CO^STTRACT LIABILITIES MAY BE FIXED. 270 
 
 effect the custom must be notorious from constant and fre- 
 quent use for a considerable time, unless it can be shown to 
 have been known to the party to be charged. A practice 
 adopted by a bank for but tAvo years, within which time 
 there were but four instances of its use, was held to be want- 
 ing in notoriety.^ 
 
 Where one employs a broker, who is a member of the 
 stock exchange, to bu}^ or sell stocks, he must be presumed to 
 authorize such broker to transact his business according- to 
 the general usages and customs of the institution with which 
 he is connected.- 
 
 Where, however, the business transacted is with no refer- 
 ence to a particular bank, the party cannot be presumed to 
 have any knowledge of its customs, and can only be affected 
 thereby on proof of notice. As, where a check was drawn 
 on a certain bank, and passed by the indorser through 
 another, the drawer could not be bound by the existence of 
 a custom between the two banks of which he had no pre- 
 vious knowledge.' 
 
 1 Adams v. Otterback, 15 How., 539. 
 
 2 Sutton V. Tatham, 10 Ad. & EL, 27; Bayliffe v. Butterworth, 1 Exch., 
 425; Walls v. BaHey, 49 N. Y., 464. 
 
 3 Mohawk Bank v. Broderick, 13 Wend., 133. See, also, Lime Rock 
 Bank v. Hewett, 52 Me., 51 ; Overman v. Hoboken City Bank, 30 N. J. 
 L., 61.
 
 CHAPTER YIIL 
 
 NOTICE BY WHICH LIABILITY IS EXTINGUISHED OR MODI- 
 FIED. 
 
 I. Dissolution of Partnekship. 
 n. Notice Limhtng the Liability of Common Caerieks and Otheb 
 
 Bailees. 
 III. Landlord and Tenant. 
 
 I. Dissolution of Paetneeship. 
 
 § 481. General Nature of Partnership. 
 
 483. Range of Inquiry. 
 
 483. Reason for Requiring Notice of Dissolution. 
 
 484. Personal Notice, Oral or Written. 
 
 485. Knowledge Derived from Circumstances. 
 
 486. Use of Name After Retii-ement. 
 
 487. Effect of Legal Notice of Dissolution. 
 
 488. Corporation Using Partnership Name. 
 
 489. Notice Unnecessary to Those Ignorant of the Partnership, 
 
 490. Illustration of Above. 
 
 491. General Knowledge of Pai-tnership Su£B.cient. 
 
 492. Dormant Partner. 
 
 493. Dormant with Respect to Particular- Ti-ansaction. 
 
 494. Must be Unknown. 
 
 495. Known to Some, Unknown to Others. 
 
 496. Dissolution by Death. 
 
 497. Dissolution by Bankruptcy. 
 
 498. Effect Upon Surviving or Solvent Partners. 
 
 499. Manner of Giving Notice. 
 
 500. Communication by Mail. 
 
 501. Not Conclusive Unless Received. 
 
 502. To Agent or Servant. 
 
 503. Altering Signs, etc. 
 
 504. Public Advertisement. 
 
 505. PubUcation Insufficient. 
 
 506. Reading Paper Not Conclusive. 
 
 507. Inference Drawn from Publication.
 
 DISSOLUTION OF PAHTNEKSHIP. 281 
 
 § 508. What Are Prior Dealings. 
 
 509. Discounting Notes. 
 
 510. Honoring Successive Drafts. 
 
 511. Renewal of Accommodation Paper. 
 
 512. Single Purchase. 
 
 513. Notice to New Customers, 
 
 514. Time of Publication. 
 
 515. Publication in Newspaper. 
 
 516. Where Published. 
 
 517. Selection of Newspaper. 
 
 518. Manner Open to Inquiry. 
 
 519. English and American Doctrine. 
 
 520. Liability of Eethmg Partner Affected by Subsequent Conduct, 
 
 521. Estoppel. 
 
 522. Example of New Customer Entitled to Actual Notice. 
 
 523. KJnowledge of Expiration of Partnership. 
 
 524. Notice of Limited Partnersliip. 
 
 525. Special Partnership. 
 
 526. Restrictions and Limitations. 
 
 527. Assu]nption of Excess of Authority by One Partner, 
 
 528. Misapplication of Funds. 
 
 529. Effect of Dissolution Upon Guarantor. 
 
 530. Onus Prohandi. 
 
 §481. General Nature of Partnersliip. — The obliga- 
 tions arising out of the relation of partnership are of a 
 very peculiar character. This relation involves a greater 
 degree of mutual con fidence than any other known to the 
 law which is formed merely for business purposes. Each 
 member of a partnership may be said to hold all that he 
 has absolutely at the mercy of each of his copartners, hm- 
 ited only by the extent of the credit which the partnership 
 can command. For each one may, by his contracts, bind 
 not only the entire firm property, but, in the name of the 
 partnership, may incur liabilities for which each of the 
 others, as w^ell as himself, will be individually Uable.^ These 
 liabilities, once incurred, will continue until discharged, not- 
 •withstanding the subsequent dissolution of partnership.^ But 
 
 1 Story on Part., §§ 126-65. 
 
 ■^Ibicl, § 834; Aiken v. Thompson, 43 la., 606.
 
 282 NOTICE BY wnicn liabilities extinguished. 
 
 though the habilities assumed in the name of the partner- 
 ship cannot be shaken off by any one of such partners 
 merely by dissolving- his business relations with the others, 
 he may, by proper notice, modify his liability for future 
 transactions, or escape absolutely all responsibility for the 
 contracts to be entered into in the name of the jjartnership 
 after the severance of his connection therewith.^ 
 
 §482. Range of Inquiry. — Our inquiries will not be 
 confined strictly to notice of dissolution, but will extend to 
 notice of every kind that has for its purpose the limitation, 
 qualification or termination of the liability of copartners 
 for further transactions of the firm of which they are mem- 
 bers, whether such liability be general or special. 
 
 § 483. Reason for Requiring Notice of Dissolution.^ 
 The reasons are obvious for requiring notice of the dissolu- 
 tion of the partnership, in order to terminate the liabihty of 
 the retiring member on account of partnership debts con- 
 tracted subsequent to his retirement. Having held himself 
 out to the world as a partner in the past, he has thereby 
 authorized others to think him what he represents himself 
 to be. He has, by his own act, given the partnership the 
 credit of his name, and so long as such partnership exists, 
 tliose who know it will be presumed to know it as originally 
 constituted, until informed of a change in its membership. 
 To hold otherwise would cast upon those who have deal- 
 ings with a partnership the unusual and onerous duty of 
 taking cognizance of the interior working of the affairs of 
 a concern, which the members fail to disclose. It would 
 shift the obligation of diligence from the party who is not 
 only primarily interested, but who is so peculiarly situated 
 as to incm* no hazard except from his own negligence, to 
 him who is only secondarily interested, and who might ex- 
 ercise extraordinary diligence without coming to a knowl- 
 edge of the fact. Even when there was no fraud in the 
 concealment, it would reverse the rule that, as between two 
 
 iPars, on Part., 411.
 
 DISSOLUTION OF PARTXEESHIP. 283 
 
 innocent persons, he should suffer whose act or omission was 
 the cause of the injury.^ 
 
 § 484. Personal Notice, Oral or Written. — Where the 
 notice to a subsequent creditor is actual, in the narrow sense 
 that it is personally communicated to him, it may be either 
 oral or written, and would probably be sufficient if coming 
 from any one with apparent knowledge of the fact. 
 
 §485. Knowledge Derived from Circumstances.— The 
 object of notice being to convey knowledge of the dissolu- 
 tion, any circumstance by which such knowledge may be 
 brought home to the subsequent creditor of the finn will, 
 in general, obviate the necessity of formal notice.^ And 
 the question of knowledge is one of fact and not of law.^ 
 
 § 486. Use of Name After Retirement. — The only event 
 in which a subsequent creditor, with knowledge of a prior 
 dissolution, may hold the retiring partner, is where, not- 
 withstanding the retirement of the partner, so far as his 
 interest is concerned, he permits his name to be used as a 
 member, for the purpose of giving the partnership the 
 credit of his name, thus continuing his hability. Where, 
 in case of such a dissolution, the retiring partner merely 
 jpermits the use of his name in connection with future busi- 
 ness of the partnership, by silent acquiescence, without 
 any express agreement to that effect, it has been held that 
 those dealing with the firm, with knowledge of the formal 
 dissolution of the partnership relation, knowing of the con- 
 tinued use of the name of such retiring partner, have a 
 right to rely upon that as an indication that he consents to 
 remain liable for the future contracts of the partnership.^ 
 
 iTombeckbee Bank v. Dumell, 5 Mason, 56; Lansing v. Gaine, 3 
 Johns., 300; Le Roy v. Johnson, 2 Pet., 198; Brown v. Leonard, 2 Chit., 
 120; Parkin v. Cari-uthers, 3 Esp., 246; Newsome v. Coles, 2 Camp., 
 617 ; Dolman v. Orchard, 2 Car. & P., 104 ; ZoUar v. Janvrin, 47 N. H., 324. 
 
 2Irby V. Vining, 2 McCord, 379; Hart v. Alexander, 2 M. & W., 484; 
 Prentiss v. Sinclair, 5 Vt. , 149. 
 
 SDeford v. Reynolds, 36 Pa. St., 325. 
 
 4 Emmet v. Butler, 7 Taunt., 599; Mulford v. Griffin, 1 Fost. & F., 145; 
 Evans v. Drummond, 4 Esp., 89; Newmarch v. Clay, 14 East, 239;
 
 2Si KOTICE BY WniCU LIABILITIES EXTINGUISHED. 
 
 § 487. Effect of Legal Notice of Dissolution. — It has, 
 however, been decided elsewhere that one having knowl- 
 edge of the prior connection of the retired partner with 
 the firm, but Avho has no actual notice or knowledge of the 
 dissolution, of which, however, such notice as is prescribed 
 by law has been given, is not Avarranted in giving credit to 
 the new firm upon the faith of the continued use of the 
 name of the late member of the partnership, merely be- 
 cause the latter has taken no positive measures to prevent 
 its continued emploA'iiient in that connection.' This de- 
 cision is grounded upon the reason that as the retiring 
 member of the partnership, upon its dissolution, has resorted 
 to all the precautions pointed out by the laAv as requisite to 
 convey the necessary information to creditors of that class, 
 he could not be accused of negligence, nor would a fraudu- 
 lent intent be imputed to him by the court, merely because 
 he did not seek by a bill in equity to enjoin the further use 
 of his name in connection with the business from which he 
 had publicly severed his connection. 
 
 § 488. Corporation Using Partnership Name. — But 
 where a partnership was dissolved by the organization of 
 its constituent members into a private corporation, and con- 
 veying the partnership property to the corporate body, and 
 the members of the partnership allowed the busines to be 
 still conducted in the old name, they were justly held liable 
 as partnel's to one who had no notice of the dissolution.^ 
 
 § 489. Notice Unnecessary to Tliose Ignorant of the 
 Partnership. — It cannot be said that upon the dissolution 
 of a business partnership, the retiring members will in every 
 instance be held liable for the future contracts or acts of 
 the firm, where notice of the dissolution is neglected. 
 Whether such liability will be incurred by them depends in 
 a great measure upon the relations between the new" cred- 
 
 Ketcham v. Clark, 6 Johns., 144; Aniidown v. Osgood, 24 Vt., 278; 
 Brown v. Leonard, 2 Chit., 120; Howe v. Thayer, 17 Pick., 91. 
 
 1 Newsome v. Coles, 2 Camp., 617. 
 
 2 Goddard r. Pratt, 16 Pick., 413.
 
 DISSOLUTION OF PAKTNERSIIIP. 285 
 
 iter and the old partnership. It would be going an un- 
 reasonable length to hold that, merely because notice of 
 the late partners retirement is not given, he shall be held 
 liable to those who have subsequent dealings with the firm, 
 in ignorance not only of the dissolution, but also of the 
 fact that the partnership which has been dissolved ever had 
 an existence. It has therefore been held that in order to 
 render a retired partner liable to those having subsequent 
 dealings with his successors in business, three facts must 
 concur: 1. That the party seeking to hold him must have 
 known, at the time he dealt with the firm, of the former 
 partnership. 2. That he was ignorant of the dissolution ; 
 and 3. That his dealings with the partnership were had 
 supposing that he was contracting with the retired partner 
 as well as his successors, and in reliance upon then* joint 
 liability.' It was also held that general notoriety with re- 
 spect to the existence of the partnership which had been 
 dissolved without notice would not be sufficient to supply 
 the place of knowledge. The transaction, to entitle the 
 creditor to enforce his remedy against the retired partner, 
 jointly with those continuing the business, must be, on the 
 part of the creditor, based upon his faith in the solvency 
 and standing of the party he seeks to hold. He could not 
 be presumed to have acted upon such faith unless there was 
 some antecedent knowledge of the fact upon which he is 
 supposed to rely,^ 
 
 § 490. Illustration of Above. — When, therefore, a firm 
 which remains after the dissolution, as the successor of the 
 partnership dissolved, whether carrying on business under 
 the same or a different name, has dealings with a stranger, 
 who has had no dealings with the former partnerehip, and 
 who has no knowledge of such partnership, notice of any 
 kind is unnecessary in order to enable the retiring members 
 of the old concern to escape hability for such subsequent 
 contracts ; but it would be otherwise held where the party 
 
 « Pratt V. Page, 32 Vt., 13. 
 Ubid.
 
 286 NOTICE BT -wnicn liabilities extinguished. 
 
 had knowledge of the partnership, but not of its dissolu- 
 tion.' 
 § 41)1. General Knowledge of Partnership Sufficient. — 
 
 Bank of Brooldyn v. McChesney ^ was where the liability 
 incurred in the name of the partnership, after former disso- 
 lution, Avas by a promissory note made in the name of the 
 firm by one of the partners for the accommodation of a 
 third person. The note was taken in good faith by one who 
 had had no prior dealings with the partnership, but who 
 knew that there was such a firm, and had never received 
 any information of its dissolution. There being neither 
 actual nor constructive notice that the partnership had been 
 dissolved when the note was taken, it was held that the 
 retiring partners were not released from their liability by 
 such dissolution. 
 
 § 492. Dormant Partner. — A dormant partner may dis- 
 solve his connection with the partnership, and in so doing 
 escape all liability on account of the future transactions of 
 the firm, whether with new or old customers, by giving 
 notice of such dissolution.^ The reasons for excepting a 
 partner of this kind from the general rule are, that, as his 
 connection with the firm is unknown, his liability could not 
 be said to depend upon the fact that the credit was given to 
 him. His liability arises from the fact that he shares the 
 profits. It is created by operation of law, irrespective of 
 the intention of the parties. When his interest in the 
 profits ceases, the reason for his liability is removed, and 
 though he may continue to be liable for the obligations 
 incurred by the partnership during his connection with it, 
 he will not be affected by those growing out of future trans- 
 actions.* 
 
 1 Story on Part., § 160 ; Chamberlain v. Dow, 10 Mich., 319 ; Warren v. 
 Ball, 37 111., 76; Evans v. Drummond, 4 Esp., 89; Newmarch v. Clay, 14 
 East, 239, 
 
 2 20N. Y., 240. 
 
 3 Pars, on Part., 497. 
 
 4 Story on Part., § 159, and authorities there cited. See, also, Warren 
 V. Ball, 37 111., 76; Newmarch v. Clay, 14 East, 239; Kennedy v. Bohan- 
 non, 11 B. Mon., 118; Scott v. Colmesnil, 7 J. J. Marsh,, 416.
 
 DISSOLUTION OF PARTXEKSHIP. 287 
 
 § 4:93. Dormant Avitli Respect to Particular Trans- 
 action. — It was accordingly lield that the attorney whose 
 partner was employed in the management of a suit, being a 
 dormant partner with respect to that particular business, 
 would not be liable for funds coming to the hands of his 
 partner as the fruits of such litigation, after the partnership 
 between them had been dissolved, although notice of such 
 dissolution was never given.^ 
 
 §494-. Must Ibe Unlmown. — But in order to constitute one 
 a dormant partner, so that he may escape liability for the 
 future transactions of the firm by dissolution without notice, 
 it is not sufficient that his name does not appear in that of 
 the firm. To be a dormant partner, he must not only be 
 silent in the sense that his connection with the partnership 
 is not advertised, but such connection must be unknown. 
 It is, therefore, not such concealment of his interest as will 
 entitle him to the immunities of a dormant partnership, 
 when, instead of his name as a member of the firm, the 
 usual substitute " Co." is employed.- It was also held that 
 where the firm was styled R. M. & Co., the me're fact that 
 the one dealing with the partnership was ignorant of the 
 name of R. M.'s partner would not render such partner 
 dormant within the meaning of the law, and with reference 
 to subsequent dealings with such party.^ 
 
 § 495. Known to Some, Unknown toOtliers. — One may 
 be a dormant partner with respect to certain persons with 
 whom the firm has deahngs, and stand upon an entirely 
 different footing towards others. His connection with the 
 partnership may be concealed from a portion of the public, 
 while others are fully cognizant of his interest and conse- 
 quent responsibility. And the fact that the interest of a 
 former dormant partner was known to one person with 
 whom the firm has dealings subsequent to the dissolution 
 
 1 Ayrault v. Chamberlin, 26 Barb., 83. 
 
 2Deford v. Reynolds, 36 Pa. St., 325; Edwards v. McFall, 5 La. An., 
 167; Magill v. Merrie, 5 B. Mon., 168; Deering v. Flanders, 49 N. H., 225. 
 3 Deford v. Reynolds, supra.
 
 288 NOTICE BY WHICH LIABILITIES EXTINGUISnED, 
 
 cannot be rendered available to create a liability against 
 such retired partner, and in favor of one who was ignorant 
 of such partnership until he had heard of its dissolution.^ 
 
 § 496. Dissolution by Death. — It is probably Avell set- 
 tled that, when the partnership is dissolved by the death of 
 one of the partners, notice of such dissolution is not neces- 
 sary in order to exempt his estate from liability for the 
 future obUgations of the partnership.^ The only known ex- 
 ception to this rule is where a surviving partner represents 
 the estate of the deceased partner as executor. It has been 
 held that, in such an event, as the surviving partner, in his 
 representative capacity, has power to bind the estate when 
 notice of the death is omitted^ such notice should be given 
 to those having dealings with the fi.rm.^ 
 
 § 497. Dissolution by Bankruptcy. — So, also, v.^hen the 
 partnership is dissolved by reason of the bankruptcy of one 
 of its members, or, as it has been styled, his " quasi death," ^ 
 notice is unnecessary to prevent his estate from becoming 
 liable for the future obligations of the firm, for the com- 
 bined reasons that the adjudication is a notorious fact, and 
 that by this means the law deprives the bankrupt of aU 
 means of satisfying such liabilities/' 
 
 § 498. Effect Upon Surviving or Solvent Partners. — 
 As to whether the surviving or solvent partners would be 
 absolved from liabiUty for obligations incurred in the name 
 of the partnership, subsequent to dissolution by the death or 
 bankruptcy of one of the members of the firm, without no- 
 tice, express or imphed, other than the decease or adjudica- 
 tion, much would probably depend upon their own conduct 
 with respect to the subsequent management of the business 
 
 1 Cregler v. Durham, 9 Ind., 375. 
 
 2 Washburn v. Goodman, 17 Pick., 519 ; Webster v. Webster, 3 Swanst., 
 491; Murray v. Mumford, 6 Cow., 441; Burwell v. Mandeville, 2 How. 
 (U. S.), 560; Canfield v. Hard, 6 Conn., 180; Parsons on Part., 449; Story 
 on Part., g§ 319, 336, 339. 
 
 3 Vulliamy v. Noble, 3 Meriv., 593. 
 *Pars. onPai-t., 474. 
 
 5 Franklin v. Brownlow, 14 Ves., 550; Thomason v. Frere, 10 East, 418.
 
 DISSOLUTION? OF PAETNEKSHIP. 289 
 
 in wliich the partnership was engaged. If they continued 
 to carry on the business as before, each of the surviving or 
 solvent members of the firna would be bound by subsequent 
 contracts made in the name of the partnership as it existed 
 prior to the death or bankruptcy, in the absence of notice to 
 the contrary. This, however, would be as well for the rea- 
 son that the remaining members might be regarded as hav- 
 ing entered into a new partnership, under the old name, as 
 because of a failure to give notice of the dissolution. Such 
 a continuation by them might be looked upon as notice to 
 the world of the formation of a new firm, and their adoption 
 of the name of the old for the sake of preserving to them- 
 selves the good will, and those who had actual notice of the 
 dissolution might extend credit to them under their former 
 name, relying solely upon those who chose to continue the 
 business. It has been held, however, that no good reason 
 exists for requiring notice of dissolution by death, from the 
 survi^^ng partners, in order to exempt either of them from 
 liability on account of future unauthorized contracts in the 
 name of the old firm.^ This was an action on a promissory 
 note given by a surviving partner in the name of the firm, 
 and the doctrine was clearly laid down by Bigelow, C. J., 
 in rendering the opinion, that although the holder had taken 
 the same witliout knowledge of the dissolution by death, 
 the surviving partner who had no knowledge of the giving 
 of such note could not be held responsible thereon ; and for 
 good and sufficient reasons, ably set forth in the opinion, 
 and supported by authority, gives this as a rule applicable 
 to all contracts made under similar circumstances.^ 
 
 §499. Manner of Giving Notice. — AVhere notice of dis- 
 solution is requisite in order to exempt the retiring partner 
 from liability on future obligations of the firm, the manner 
 of giving such notice is governed to a considerable extent by 
 the relations previously existing between the partnership 
 and the party asserting the claim; but actual notice will be 
 
 1 Marlett v. Jackman, 3 Allen, 287. 
 
 2 1(1., p. 296. 
 
 19
 
 290 KOTicE BY wnicn liabilities extinguished. 
 
 suiRcient in all cases, whether the same be Avritten or oral, 
 or is given expressly by the retiring partner, or is derived 
 from a knowledge of circumstances pointing directly to the 
 conclusion that such partnership has been dissolved.' 
 
 § 500. Commuiiicatioii by Mail. — The method in nearly 
 all cases found to be most practicable and efficacious for the 
 purpose of discharging the retiring partner from future ob- 
 ligations is by addressing to the party to be notified a writ- 
 ten communication informing him of the fact of dissolution. 
 Proof of notice sent to and received by him, through the 
 mails, or served upon him personally, will be conclusive upon 
 him for all time.- 
 
 § 501 . Not Conclusive Unless Received. — But it has been 
 held that mere proof of the sending of a written notice by 
 mail will not be sufficient to charge the party to whom it is 
 addressed with knowledge of the altered relations of the 
 partners. This manner of service is there held to be re- 
 stricted in its conclusive effect to cases of notice of the dis- 
 honor of commercial paper. It is admitted, however, that 
 the mailing of a written notice of dissolution to one having 
 former dealings with the partnership would be a step in the 
 direction of actual notice, and slight corroborative evidence 
 would warrant the inference that such notice was received 
 and the party duly advised of the change of firm ; but this 
 inference is regarded strictly as one of fact, and not of law.* 
 
 § 502. To Agent or Servant. — Howsoever indulgent the 
 courts may be in the matter of giving notice of dissolution, 
 vrith reference to the means employed, it is nevertheless re- 
 quired, where actual notice is relied on, that it shall be com- 
 municated to the party to be affected thereby. It will not 
 be sufficient if communicated to a mere servant or employee, 
 unless, from the nature of his employment, his agency ex- 
 
 1 Robb V. Mudge, 14 Gray, 534; Langeu. Kennedy, 20 Wis., 279; Davis 
 V. Keyes, 38 N. Y., 94; Yoiing i\ Tibbitts, 32 Wis., 79. But see Ran- 
 som V. Loyless, 49 Ga., 471 ; Pars, on Part., 411. 
 
 -'Kenney v. Altvater, 77 Pa. St., 34. 
 
 Uhid.
 
 DISSOLUTION OF TARTNEESHIP. 291 
 
 tends to the particular transaction to be affected by the 
 notice. Accordingly, where the retired partner went to the 
 place of business of one with whom the firm had had prior 
 dealings, and, on being accosted by a salesman, informed 
 such salesman that he had not come to purchase, but to 
 inform the house that the partnership theretofore existing 
 had been dissolved, it was held that this was not sufficient 
 to charge the employers of such salesman with actual notice 
 of the retirement of such partner, so as to exonerate him 
 from liability on a note subsequently given by his successor 
 in the name of the firm. A failure to show that the fact 
 was communicated by the salesman to his employer left it 
 incumbent upon the party seeking to avail himself of such 
 notice to prove that the authority of the agent extended to 
 the acceptance of notice of dissolution.' 
 
 § 503. Altering Signs, etc. — Another method which is 
 equally binding upon those cognizant of its adoption, and 
 which is even more general than that of pereonal notice, is 
 by altering the name of the firm on the signs and in all the 
 correspondence carried on with their customers, together 
 with a public advertisement of the dissolution in one or 
 more public newspapers.^ One having dealings with the 
 new firm by means of epistolary correspondence, where 
 the letters exchanged would show upon their face that one 
 of the former members had retired from the concern, would 
 seem to be estopped from claiming that in so dealing he re- 
 lied upon the responsibility of such retired partner.^ 
 
 § 504. Public Advertisement. — The authorities are not 
 in entire accord as to the effect of a public advertisement of 
 dissolution, as notice to those who have had prior dealings 
 with the partnership. It seems to be generally agreed that 
 the publication of such notice will not affect them unless it 
 appears that they were in the habit of receiving and reading 
 
 1 Stewart v. Sonneborn, 49 Ala., 178. 
 -Jenkins v. Blizard, 1 Stark., 418. 
 3 Pars, on Part., 411.
 
 292 NOTICE BY WIIICU LIAUILITIES EXTINGUISHED. 
 
 the papers in which the notices appear.* The weight of au- 
 thority, however, goes farther in restricting the operation 
 of such published notice, holding that it will not be avail- 
 able against one who had had prior deahngs with the part- 
 nership, unless it is shown that he has actually read the 
 notice as published.- 
 
 § 505. PuWication Insufficient. — It was accordingly 
 held in Lyon v. Johnson,' that the fact of notice of dissolu- 
 tion being published in a paper circulated where the busi- 
 ness of the firm, and also that of the party with whom the 
 dealings were had, was carried on, and such paper was taken 
 by the party giving such credit, together with the further 
 fact that the notice was printed directly adjoining the ad- 
 vertisement of the dealer, would not raise a presumption 
 suflBciently strong to overcome the fact that such dealer 
 had no actual notice. In other words, it was not sufiBcient 
 of itself to constitute notice to such dealer. It was here ad- 
 mitted, however, that these facts, in conjunction with the 
 lapse of time and other circumstances, might be regarded 
 as evidence tending to prove the ultimate fact. But, upon 
 the other hand, the circumstance that the credit was given 
 to the old firm would have a tendency to show his Avant of 
 knowledge of the altered relations of the members of the 
 partnership.* 
 
 §506. Reading Papers Not Conclusive. — There seems 
 to be no doubt that the mere fact that the prior dealer sub- 
 scribes for and reads the paper containing the notice will 
 not raise the legal inference of actual notice.* And although 
 it would not be proper to reject evidence of such pubhcation 
 
 iGalway v. Mathew, 1 Camp., 403; S. C, 10 East, 264. 
 
 2HutcliiBS V. Hudson, 8 Humph., 426 ; Hutcliins v. Bank of Tenn., id., 
 418; Little v. Clarke, 36 Pa. St., 114; Boyd v. McCann, 10 Md., 118; 
 Simonds v. Sti-ong, 24 Vt., 643; Shurlds v. Tilson, 2 McLean, 458. 
 
 8 28 Conn., 1. 
 
 * See, also, as to effect of reading the paper containing the notice, Ver- 
 non V. Manliattan Co., 23 Wend., 183. 
 
 ^ReUley V. Smith, 16 La. An., 31 ; Watkinson v. Bank of Pennsylvania, 
 4 Whart., 482; Shurlds v. Tilson, 2 McLean, 458.
 
 DISSOLUTION OF PAETNEESHIP. 293 
 
 and the taking and reading of the paper by the dealer, still 
 the jury should be instructed that the mere taking of the 
 paper was not of itself actual notice,^ 
 
 § 507. Inference Drawn from Publication. — Although 
 the pubhcation of notice cannot, as an inference of law, be 
 taken as actual notice of dissolution to those who have had 
 prior dealings with the partnership, it has been held that 
 such a publication might lay the foundation for an inference 
 of fact that such notice had been actually given. The case 
 was one where an action was brought on a note given in 
 the name of D. & T., a partnership originally composed of 
 two members, but which had ceased to exist, as its members 
 had discontinued the business under that name, prior to the 
 execution of the note by D. The st^ie and constituency of 
 the firm were changed by taking in a new member, after 
 which the house was known as " D., T. & C." It appeared 
 in evidence that there was published at the request of the 
 new firm, in a newspaper printed and circulated in the place 
 where the business was conducted, the following notice: 
 " Change of Firm — It will be seen by our advertising 
 column that D. & T. have taken Mr. D. C. C. into partner- 
 ship in the marine elevator and coal business, AVe con- 
 gratulate the weU-known firm on the accession of so 
 energetic a business man as Mr. C. Together thev wiU 
 make a strong team." It was also testified by the holder of 
 the note himself that he was in the habit of taking and 
 reading the paper in which this notice appeared, prior to the 
 date of the note. The court held, in substance, that the 
 jury might have found from this that when the party took 
 the note he had read the notice ; and although it was not 
 a positive statement from the parties interested of the 
 change of firm, yet it was suflBcient to put an ordinarily 
 prudent and cautious man upon inquir\\ leading to a knowl- 
 edge of such change, and would therefore justify the jury 
 in inferrine: that the note was taken with actual notice or 
 
 1 Watkinson v. Bank of Pennsylvania, 4 Whart., 483.
 
 294 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 knowledo;e that there was then no such firm in existence as 
 that in the name of which the instrument was executed.' 
 
 § 508. What Are Prior Dealings. — This being the rule 
 as to those who have had prior dealings with the partner- 
 sliip, it becomes a question of some importance as to what 
 amounts to such prior dealings as would entitle them to 
 actual notice. Where the dealings have been directly be- 
 tween the party claiming the advantages of this position, 
 and the partnership, as by selling goods to the firm, or mak- 
 ing advances of cash, discounting paper for them, or any 
 similar transaction in which the parties meet or confer to- 
 gether in the capacities of bargainor and bargainee, there 
 can be no difficulty in reaching the conclusion that they are 
 such prior dealings as would entitle the party to receive 
 actual notice of such dissolution. But where the only prior 
 dealing consisted in discounting a note bearing the name of 
 the firm, such discount being made for another party, this 
 was held not to amount to such " prior dealings " as would 
 entitle the party discounting the paper to be actually noti- 
 fied of the dissolution, or for the want of such notice to 
 pursue his remedy against, the retiring partner.^ 
 
 § 509. Discounting Notes. — But where one of the mem- 
 bers of a firm took a note to a bank for discount, and it was 
 discounted on the faith of the firm's indorsement, this was 
 held such prior dealings with the partnership as would en- 
 title the bank to actual notice of the subsequent dissolution, 
 in order to exonerate the retiring partner from liability for 
 transactions by his successor in the name of the firm.^ 
 
 §510. Honoring Successive Drafts. — And where the 
 bank held a succession of drafts, accepted by the firm be- 
 fore dissolution, which drafts had been paid to the bank by 
 the firm, this was held such prior dealings with the firm as 
 
 1 Young V. Tibbitts, 32 Wis., 79. 
 - Bank of Brooklyn v. McChesney, 20 N. Y., 240. 
 3 Bank of Commonwealth v. Mudgett, 45 Barb., 663; S. C, 44 N. Y., 
 614, where judgment was affirmed on appeal.
 
 DISSOLUTION OF PAETNEESHIP. 295 
 
 would entitle the bank to actual notice, as distinguished 
 from a publication in a newspaper.^ 
 
 § 511. Renewal of Accommodation Paper. — So, where 
 a note was given to the bank by a member of the firm, for 
 the accommodation of a third party, and several times re- 
 newed in the name of the firm, though the retmng partner 
 had nothing to do Avith the giving or renewal of the note, 
 this was held such a prior transaction as would require the 
 retiring partner to give actual notice of a dissolution of the 
 partnership, in order to discharge himself from liability for 
 a renewal subsequent to his retirement.- 
 
 § 5 1 2. Single Purcliase.^ — In order to constitute one such 
 a creditor as has had prior dealings with the firm, that he 
 may be protected in giving credit upon the faith of the part- 
 nership, without inquiry, in the absence of actual notice of 
 dissolution, it is not necessary in every case that his prior 
 dealings should liave been numerous or continued over a long 
 space of time. Tliis principle may be illustrated by the 
 case of Lyon v. Jolmson.^ There the defendants had been 
 doing business in partnership, and, while so engaged in busi- 
 ness, made a single purchase of coal of the plaintiffs. The 
 .partnership between the defendants was dissolved in the 
 spring, and such dissolution was duly published in a news- 
 paper in the place where the business of both plaintiffs and 
 defendants was conducted. At the time of the subsequent 
 purchase, however, the plaintiffs had no knowledge of such 
 dissolution. It further appeared that, prior to the former 
 transaction, defendants had been regular customers, in their 
 firm name, in purchasing coal of the firm of which plaint- 
 iffs were the successors, carrying on the same business in the 
 same place, and that one of the plaintiffs was a member of 
 such firm, and the other had been employed by them as a 
 clerk. These facts were held sufficient to entitle plaintiffs 
 to recover of the partnership as constituted jjrior to the dis- 
 
 1 Mechanics' Bank v. Livingston, 33 Barb., 458. 
 
 2 Vernon v. Manhattan Co., 17 AVend., 524; S. C, 83 Wend., 183. 
 
 3 28 Conn., 1.
 
 296 KOTICE BY WIIICU LIABILITIES EXTINGUISHED. 
 
 solution, not withstanding the publication of such notice of 
 dissolution. AYhether, in all cases of a single transaction, 
 the creditor would occupy the same position, the case cited 
 does not determine. This would depend, no doubt, to a 
 great extent, upon the magnitude of the purchase, or the 
 importance of the dealing, as well as upon other attendant 
 circumstances, such as the lapse of time between the two 
 transactions, or between the prior dealing and the dissolu- 
 tion, or between the dissolution and the subsequent dealing 
 for which the creditor seeks to hold the partnership. These 
 at least would be facts proper for submission to the jury, to 
 enable them to determine whether the prior dealings be- 
 tween the parties were such as to warrant the creditor in 
 beheving in the continued existence of the partnership as 
 constituted at the time of the prior dealings.^ But where 
 the prior dealing is trifling in amount and attended with 
 such circumstances as would indicate that it was made with- 
 out any reference to the parties with whom it was had, as a 
 casual sale for cash, credit being neither asked nor given, it 
 is plain that the reason of the rule requiring actual knowl- 
 edge or notice of the dissolution to those having former 
 dealings with the firm would not apply.^ 
 
 §518. Notice to New Customers. — We have already 
 stated that, where the person with whom the transaction is 
 had subsequent to the retirement or dissolution, knew of the 
 former partnership, he would be entitled to notice, provided 
 his subsequent dealing with the firm was in rehance upon 
 the responsibihty of the retiring partner, and, if not notified, 
 would have a right to pursue his remedy against the retiring 
 partner, although he had never had any dealings with the 
 firm prior to its dissolution or the retirement of such part- 
 iner.^ But it is not essential that this notice should be actu- 
 'ally communicated to him. The law is very jealous of the 
 rights of those having dealings with partnerships, and holds 
 
 1 Lyon V. Johnson, 28 Conn., 1. 
 
 2Pai-s. on Part., 415; Clapp v. Rogers, 13 N. Y., 283. 
 
 3<Swpm, §483.
 
 DISSOLUTION OF PAKTNEKSHIP. 297 
 
 the individual members of any firm to a strict accountability 
 for its obligations ; but it would be going to unwarranted 
 length to require one Avho wished to dissolve his connection 
 with his business associates to actually notify every one 
 who knew of the existence of the partnership, and might 
 by any possibility have dealings with the firm in the future, 
 at the peril of being held liable for such future transactions. 
 It is therefore universally held that those who have not had 
 prior dealings with the partnership may be sufficiently noti- 
 fied to prevent the accruance of any liability in his favor 
 against the retiring partner by pubhshing the notice of the 
 dissolution in a public newspaper.^ 
 
 § 51 4. Time of Publication.— There seems to be no fixed 
 rule as to the time for which such publication shall be made, 
 nor of the form of expression to be used, in order to exon- 
 erate the retiring member of the partnership from obhga- 
 tions subsequently incurred in the name of the firm. 
 
 §515. PuMicatioii in Newspaper. — Where the party 
 having subsequent dealings with those pretending to repre- 
 sent the partnership which has been dissolved has known of 
 the partnersliip during its existence, the rule generally laid 
 down by the courts in this country and in England is that 
 the retired partner may be held hable for obligations in- 
 curred in the name of the firm after his retirement, unless 
 public notice has been given of the dissolution by publishing 
 the fact in a newspaper.- And it has been even held under 
 this rule that the mere notoriety of the fact of dissolution 
 would not supply the place of such publication, in the ab- 
 sence of actual notice.' 
 
 §516. Wliere Published. — Where this rule is adhered 
 to strictly, the notice is in general required to appear in a 
 
 iMowatt V. Howland, 3 Day, 353; Lansing v. Gaine, 3 Johns., 300; 
 Graves v. Merry, 6 Cow., 701; Ketcham v. Clark, G Johns., 144; New- 
 some V. Coles, 2 Camp., 617; Godfrey v. Turnbull, 1 Esp., 371. 
 
 2 Southern v. Grim, 67 HI., 106; Dickinson v. Dickinson, 25 Gratt., 321 ; 
 Amidown v. Osgood. 24 Vt., 278; Prentiss v. Sinclau-, 5 Vt., 149; South- 
 wick V. McGovern, 28 la., 533. 
 
 3 Pitchers. BaiTows, 17 Pick., 361; Holdaner. Butterworth, 5Bosw., 1.
 
 298 NOTICE BY WniOH LIABILITIES EXTTNGUISHED. 
 
 paper published in the place where the business of the part- 
 nership is carried on; but so far from this being an inflex- 
 ible rule, the publication being made at the place of business 
 will not always be conclusive upon subsequent creditors 
 who reside elsewhere. As, where the factory of the firm 
 was located at Baton Rouge, which was technically the 
 place of business ; but the partners resided in the city of 
 'New Orleans, where they were in the habit of raising funds 
 for the prosecution of their business, it was held that the 
 publication of a notice of dissolution in the newspapers 
 of Baton Eouge was not sufficient to affect creditors resid- 
 ing in Is^ew Orleans, who, with antecedent knowledge of 
 the partnership, but no knowledge of its being dissolved, 
 subsequently gave credit to the firm.^ 
 
 § 517. Selection of Newspaper. — By a custom of Lon- 
 don the notice is published in the " London Gazette." ^ But 
 nowhere in this country is it imperatively required that 
 such notice shall be published in any particular paper. As 
 the newspapers are numerous, the retiring partner has quite 
 an extensive option in selecting the medium of communica- 
 tion. By publishing the notice in an obscure journal of 
 very limited circulation, the fact may be effectuall}^ con- 
 cealed from those most interested in knowing the status of 
 the partnership. For this reason notification merely by 
 such pubhcation does not always serve to exonerate the re- 
 tiring partner from liability to those who have never had 
 prior deaUngs with the firm. The proof of sufficient notice 
 is not always complete with the proof of publication, as in 
 cases where original process is served by this method. 
 
 § 518. Maimer Open to Inquiry. — The manner in which 
 the publication is made is always open to inquiry respect- 
 ing the paper selected as a medium ; the number of times 
 the advertisement is published ; and even the extent of its 
 display and the place it occupies in the paper. The ques- 
 tion being one of diligence and good faith on the part of 
 
 1 Grinnan v. Baton Rouge Mills Co., 7 La. An., 638. 
 . 2 Parkin v. Can-utliers, 3 Esp., 248.
 
 DISSOLUTION OF PAETNEESHIP. 299 
 
 the retiring partner, be will not be allo^ved to avail bimself 
 of sucb published notice unless it appears to have been as 
 reasonable and sufficient as mercantile usage requires or the 
 public have a right to expect.^ 
 
 § 5 1 9. English and American Doctrine. — The rule re- 
 quiring the publication of notice as an absolute condition to 
 the exemption of the retiring partner from future obhga- 
 tions of the firm, entered into with those who have had no 
 prior deahngs with the partnership, prevails in England 
 with considerable uniformity, but in this country it has been 
 emphatically denied by the highest legal authority known 
 to our jurisprudence.^ In this case, which was recently de- 
 cided by the supreme court of the United States, the ques- 
 tion was elaborately discussed, and the British and iVmerican 
 authorities carefully and ably reviewed. The record dis- 
 closed that the business of the partnership, which was that 
 of lumber dealers, had been conducted at the city of Daven- 
 port in the state of Iowa. Upon the dissolution actual no- 
 tice was given to those having former deahngs with the 
 firm, and there was such an open and notorious change of 
 business as would have apprised all those engaged in the 
 same line of business in that community, that one of the 
 partners had withdrawn. The action was brought on cer- 
 taui drafts, drawn and accepted by the remaining partner 
 after dissolution. The holders of the drafts had never had 
 any dealings with the firm, but had heard that there was 
 such a firm doing business as lumber dealers at Davenport. 
 At the trial there was no evidence of pubhcation of notice 
 in the newspapers of Davenport or at the place where tlie 
 drafts were drawn, which was about five hundred miles dis- 
 tant, on the Mississippi river. Evidence was offered and re- 
 jected by the trial court for the purpose of proving : 1. That 
 at the tune of dissolution it was generally known among 
 business men at Davenport that the partnership was dis- 
 solved. 2. That it was generally known along the Missis- 
 
 iWardwell v. Haight, 2 Barb., 549; Pars, on Pait., 418. 
 2 Lovejoy v. Spafford, 4 Cent. L. J., 80 ; 93 U. S., 430,
 
 300 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 sippi river that this dissolution had taken place. 3. That at 
 the time of dissolution the facts were communicated to oth- 
 ers than the plaintiffs, and to whom, and in what manner, 
 they were so communicated. 4. That at the time the part- 
 nership w^as dissolved it was a matter of general repute and 
 knowledge in their place of business. 5. That prior to the 
 date of the drafts, notice was given to all or nearly all the 
 lumber dealers where the holders of such drafts resided at 
 the time, and near which the drafts were drawn and ac- 
 cepted. This evidence was avowedly offered, not for the 
 purpose of bringing home actual knowledge to the plaintiff, 
 but merely to show circumstances which, from their notori- 
 ety, would amount to such implied notice as would suffice 
 to bind strangers. The substantial ground upon which the 
 evidence was rejected was that nothing short of publication 
 in the newspapers of the place of business of the partnership 
 would be sufficient. In reversing the judgment for error in 
 rejecting the evidence offered on behalf of the defendant, 
 the court held that it was not an absolute inflexible rule that 
 there must be a publication in a newspaper to protect a re- 
 tiring partner. In delivering the opinion of the court Mr. 
 Justice Hunt uses the following language : " The question 
 is not exclusively whether the holders of the paper did in 
 fact receive information of the dissolution. If they did, 
 they certainly cannot recover against a retired partner. 
 But if they had no actual notice, the question is still one of 
 duty and diligence on the part of the withdrawing partner. 
 If he did aU that the law requires, he is exempt, although 
 the notice did not reach the holders." ^ 
 
 § 520. Liability of Retiring. Partner Affected hj Sub- 
 sequent Conduct. — The conduct of the withdrawing part- 
 ner may be such as not to entitle him to any benefit from a 
 
 1 Lovejoy v. Spafford, 4 Cent. L, J., 82. See, also, the oiiinion of Judge 
 Edmunds in Wai-dwell v. Haiglit, 2 Barb., 553; Bristol v. Sprague, 8 
 Wend., 423; Ketcham v. Clark, 6 Johns., 144; Pratt v. Page, 32 Vt., 13; 
 Watkinson v. Bank of Penn., 4 Whart., 482; White v. Mui-phy, 3 Rich. 
 L., 369,
 
 DISSOLUTION OF PAKTNEKSHIP, 301 
 
 published notice, even as against subsequent creditors of the 
 firm who have had no prior deaUngs. As where the firm 
 was composed of father and son, and the father withdrew, 
 leaving the business in the hands of his partner and another 
 son, with authority to continue the business in the old name, 
 the father was held liable to a subsequent dealer who gave 
 credit on the reputation of the partnership previous to the 
 change, notwithstanding the fact that notice of the disso- 
 lution was duly pubhshed.^ The ground of this decision 
 w^as that, by permitting the continued use of his name, the 
 father was estopped from denying his liability, as against 
 one without actual notice of his withdrawal, who trusted 
 the partnership on the strength of his apparent connection 
 with the business. 
 
 § 5^1. Estoppel. — In the case of Newcomet v. Brotz- 
 man,2 the operation of the doctrine of estoppel was placed 
 upon apparently broader ground. There the father was a 
 member of a partnership which was dissolved by his pur- 
 chase of the interest of his partner, and giving the entire 
 business to the son, who had previously represented his 
 father in the management, drawing his portion of the 
 profits. After the firm was dissolved, the other partner 
 remained in the store in the capacity of a clerk. There was 
 no alteration made in the sign, and the new proprietor 
 continued the business as before. Under this state of facts 
 the court held that one subsequently giving credit to the 
 original firm would be entitled to pursue his remedy against 
 the former partners, regardless of whether notice of disso- 
 lution had been given or not. 
 
 § 522. Example of New Customer Entitled to Actual 
 Notice. — Another case surrounded by peculiar circum- 
 stances is that of Amidown v. Osgood.^ Here there were 
 no actual dealings prior to the dissolution, but at the time 
 of one transaction there had been neither actual nor im- 
 
 1 Speer v. Bishop, 24 Ohio St., 598. 
 
 2 69 Pa. St., 185. 
 
 3 24 Vt., 278,
 
 302 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 plied notice given to the creditor. The goods sold were 
 partially delivered, prior to the publication of the notice of 
 dissolution, and while the original signs and all the exter- 
 nal indicia of the continuance of the partnership remained. 
 The subsequent transaction from which the obligation arose 
 was based on the faith of the partnership credit, and it was 
 held that, altliough the first dealing with the creditor was 
 after dissolution, he was nevertheless entitled to the same 
 notice as though the entire transaction had been completed 
 during the actual continuance of the partnership. 
 
 § 523. Knowledge of Expiration of Partnership. — A 
 creditor who has knowledge at, or prior to, the time when 
 the credit is given, that the partnership with which he deals 
 will expire by limitation at a time certain, is bound by 
 such knowledge to the same extent as though he had actual 
 notice thereof when it occurred. Thus where one who knew 
 that a partnership was formed to continue for a certain 
 period of time, and daring such continuance the firm em- 
 ployed an attorne}^ or agent to make pm^hases for them, 
 such person, selling to such attorney goods which were 
 ostensibly purchased for the partnership, could not recover 
 from the firm for anything sold after the expiration of the 
 time to which the partnership was limited.^ 
 
 § 524. Notice of Limited Partnership. — The notice by 
 which partners may exonerate themselves from future liabil- 
 ity is not confined, however, to notice of changes in the con- 
 stituency of the firm. There is an obhgation upon each of the 
 partners, imphed by law, to answer for the contracts of each 
 of his copartners, made and entered into on behalf of the 
 firm. "With respect to the business of the partnership the 
 law imphes a reciprocal agency, by which each may bind all 
 the others. But the liabilities arising from this relation may 
 be restricted by agreement between the parties, by forming 
 what is known as limited partnerships, for the reason that 
 the liability of one or more of the partners is hmited to a 
 
 1 Schlater v. Winpenny, 75 Pa. St., 331.
 
 DISSOLUTION OF PARTXEKSIIIP. 303 
 
 certain amount, or by restricting tlie power of one or more 
 of the members to bind the others by contracts, or to incur 
 obhgations of any sort in the name of the firm. Such hm- 
 itations or restrictions can only affect persons cleahng with 
 the firm, with notice thereof.^ But those having notice 
 would occupy no better position with reference to dealings 
 bej'ond the scope of the liability assumed by, or the restric- 
 tions imposed upon, certain members of the firm, than 
 though they dealt with any other agent who exceeded his 
 limited authority.'^ Accordingly, where one of the members 
 of a partnership executed a note on behalf of the firm for 
 money borrowed ostensibly for the firm's use, the larger 
 portion of which was so applied, and the part}" who took the 
 note had received notice from a copartner of the maker that 
 such maker had no authority to draw on the firm account, 
 it was held by Lord Ellexboegugh that the holder of the 
 note could not recover from the partner giving the notice.* 
 
 § 535. Special Partnership. — So, where there was a 
 stipulation between A., B. and C, who appeared to the 
 world as copartners in business, that C. should neither par- 
 ticipate in the profits nor share the losses, and should not 
 be liable as a partner, it was held that C. was not liable as 
 such to those who had notice of this stipulation.* 
 
 §526. Restrictions ami Limitations.— There is neces- 
 sarily a difference between the manner of giving notice of 
 the dissolution of a partnership, and giving notice of re- 
 strictions upon the powers, or limitations upon the liabili- 
 ties, of partners, or those who hold themselves out to the 
 world as such. ]S^otice of dissolution, as we have seen, may 
 
 iPars. on Part., 98. 
 
 2 Id., 99, and cases cited. 
 
 ^Gallway v. Matthew, 10 East, 264. See, also. Brown u, Leonard, 2 
 Chit., 120; Le Roy v. Johnson, 2 Pet., 186; Gow on Part., 48, 49. 
 
 *Aldersout'. Pope, 1 Camp., 404, note; Batty v. McCundie, 3 Car. & 
 P., 202; Denny r. Cabot, 6 Met., 82; Bailey v. Qark, 6 Pick., 372; Board- 
 man V. Gore, 15 Mass., 331; Baxter v. Clark, 4 Ired., 127; Dow r. Say- 
 ward, 12 N. H., 271; Langan v. Hewett, 13 Sm. & M., 122; Leavitt v. 
 Peck, 3 Conn., 124; Monroe v. Conner, 15 Me., 178.
 
 304: NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 in certain cases be implied from circumstances,^ or may be 
 purely constructive in its character;- but with respect to a 
 notice which contradicts all the appearances by which men 
 are usually guided in their dealings with each other, sound 
 policy would dictate that it should be actual, in the strict 
 sense of the term, and the proof of it should be of the 
 most satisfactory character.* If there were any diiference 
 between old and new customers it would seem that the lat- 
 ter should have the preference regarding the degree of 
 knowledge to be brought home to them of the stipulations 
 between the copartners, hmiting their common law liabili- 
 ties, or restricting their powers. 
 
 § 527. Assumption of Excess of Autliority by One 
 Partner. — Where the contract is entered into or the obli- 
 gation incurred by the partner, who, at the time, is acting 
 beyond the scope of his authorit}?", as conferred by the arti- 
 cles of copartnership, or restricted by private stipulation, 
 such acts will not bind his copartners in favor of one hav- 
 ing notice of the misconduct of the partner with whom he 
 treats, when such act amounts to a fraud upon the partner- 
 ship.* 
 
 § 528. Misapplication of Funds. — When the excess of 
 authority by one partner is in the misapplication of the 
 funds of the partnership to satisf}^ a debt or demand against 
 himself, or for his own benefit, the party with whom the 
 transaction takes place, knowing that the funds are those 
 of the firm, cannot avoid knowledge of their misapplica- 
 tion,, and the obligations assumed will be void as against 
 the partnership, how binding soever they may be upon the 
 partner who commits the fraud.' 
 
 1 Supra, § 485, 
 
 ^ Supra, §513. 
 
 3 Pars, on Part., 98. 
 
 * Connecticut River Bank v. French, 6 Allen, 313 ; Warren v. French, 
 6 Allen, 317 ; Sandilands v. Marsh, 2 B. & Aid., 673. 
 
 sKemeysu. Richards, 11 Barb., 312; BurweU v. Springfield, 15 Ala., 
 273; Green v. Deakin, 2 Stark., 347; Story on Part., § 133.
 
 DISSOLUTION OF PAKTNERSIIIP. 305 
 
 § 529. Effect of Dissolution Upon Guarantor.— The 
 
 effects of notice of dissolution of a partnership are not 
 always confined to the parties having dealings, prior or 
 subsequent, with the firm. Where advances are made to a 
 copartnership, not upon faith in the firm's credit, but upon 
 the strength of the guaranty of a third party, the guaran- 
 tor cannot be held for advances made by the creditor, sub- 
 sequent to his receiving notice that the partnership is 
 dissolved.^ 
 
 §530. Onus Probandi. — When one attempts to escape 
 the responsibility implied from his connection with the 
 partnership in whose name the obligation is incurred, upon 
 the ground that he has severed such connection, and notified 
 the creditor, or that he had given antecedent notice of his 
 non-liability, the authorities all seem to agree in casting the 
 burthen of proof upon him in every instance.^ If the cir- 
 cumstances require actual notice, it is necessary for him to 
 allege and prove such actual notice. If the case admits of 
 constructive notice, by publication in a newspaper, or by 
 other notorious proclamation of the fact relied upon, he still 
 has the affirmative of the issue upon the matter of notice, 
 and until he makes at least a prima facie showing wiU be 
 held liable as a partner. 
 
 1 Cremer v. Higginson, 1 Mason, 323. 
 2Carmichael v. Greer, 55 Ga., 116. 
 20
 
 o06 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 II. Notice by Caeriees Limiting Theik Liability. 
 
 § 531. Division of Subject. 
 
 532. Inception of Liability. 
 
 533. Cannot be Varied by Published Notice. 
 
 534. Liability at Common Law. 
 
 535. Different Methods of Giving Notice. 
 
 536. State of the Law in England. 
 
 537. Notice Must be Brought Home. 
 
 538. Posting Notices Insufficient. 
 
 539. Same. 
 
 540. Example of Insufficient Notice. 
 
 541. American Rule — Must be Clear and Explicit. 
 543. Limitation of Extent of Liability. 
 
 543. Notice on Back of Raih-oad Ticket. 
 
 544. Must be Seen and Understood. 
 
 545. Party Unable to Read Notice. 
 
 546. Taking Paper Containing Advertisement, Insufficient. 
 
 547. To Whom Given — Servant. 
 
 548. Printed in Bill of Lading, Insufficient. 
 
 549. Conflicting Notices. 
 
 550. Same. 
 
 551. Agent's Acts Governed by Notice to Principal. 
 
 552. General Docti'ine in America — Cannot be Limited by Notice. 
 
 553. May be by Contract. 
 
 554. Notice and Assent. 
 
 555. Assent Must be Voluntary. 
 
 556. Same. 
 
 557. Views of Judge Redfield. 
 
 558. Notice Never Exempts from Negligence. 
 
 559. Example of Express Contract Held Inoperative. 
 
 560. Cases Arising Under English Statute. 
 
 561. Further Illustration of Same. 
 . 562. Notice of Arrival. 
 
 563. Will Terminate Liability as Carrier. 
 
 564. Reasonable Time for Removal After Knowledge of Arrival. 
 
 565. Classification of Conflicting Authorities. 
 
 566. Massachusetts, Illinois, Iowa. 
 
 567. Modification of the Rule in ^Massachusetts. 
 
 568. New Jersey, Vermont — Reasonable Time to Remove. 
 
 569. Additional Authorities. 
 
 570. New York, Michigan, Texas, New Hampshire and other States- 
 
 Notice Required. 
 
 571. Carriers by Water — Notice Required.
 
 LIMITING LIABILITY OF CARKIEES. 307 
 
 § 572. Comparison of Conflicting Views. 
 
 573. Rule Requiring Notice, Preferred. 
 
 574. Conflict Explained by Difference in Local Customs. 
 
 575. Rule Affected by Custom. 
 
 576. Waiver and Excuse. 
 
 577. Reasonable Time for Removal. 
 
 577a. Actual Notice — Opportunity to Remove Goods. 
 
 §531. DiTision of Subject. — The carriers' notices by 
 which their liability is sought to be limited have reference — 
 1. To the notice by which they endeavor to qualify or re- 
 strict their responsibility, imposed by law, as special insurers 
 of the articles committed to their charge. 2. The notice by 
 whicli their responsibility as carriers is terminated. 
 
 § 532. Inception of Liability. — An important matter for 
 consideration in connection with notices of the former class 
 is the inception of the carrier's liability. This usually takes 
 place when the goods are deUvered to the carrier for trans- 
 portation, whether immediately taken upon the vessel or 
 vehicle employed in their carriage, taken into a warehouse 
 to await the carrier's convenience, or left upon a public 
 dock or wharf, where it is usual and customary to deposit 
 articles intended for transportation by the carrier in whose 
 charge they are thus delivered.^ But in order to hold the 
 carrier to the onerous responsibility imposed upon him by 
 common law, something more than the delivery of the goods 
 to such carrier must appear. It is not enough that he is 
 charged with their possession. They must be delivered to 
 him in his capacity of carrier and none other. The articles 
 delivered for carriage must be delivered for present trans- 
 portation, and not to be held for a time, and shipped when 
 further orders of the bailor are given to that effect.^ If 
 they are delivered for present storage and future shipment, 
 although in the possession or under the control of the car- 
 
 iMerriam v. H. & N. H. R'y, 20 Conn., 354; Rogers v. West, 9 Ind., 
 400 ; Burrell v. North, 2 Carr. & Kir., 680; Boehm v. Combe, 2 M. & S., 
 172. 
 
 2 Moses V. Boston & M. R. R. Co., 24 N. H., 71; Spade v. Hud. Riv. 
 R'y, 16 Barb., 383; R. R. Co. v. Manuf. Co., 16 Wall., 318.
 
 303 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 rier, they are not held by him as such, but only as a ware- 
 houseman, who is held to less strict accountability.* 
 § 533. Cannot be Taried by Published Notice. — This 
 
 rule as to the commencement of the earner's liability is so 
 weU recognized that it cannot be abrogated by public 
 notice. Thus, wliere a railroad corporation, having a ware- 
 house for the storage of goods intrusted to it for present 
 shipment, advertised that it would not be responsible for 
 goods so left, except for injuries resulting from the negli- 
 gence of its own servants, it was held that it was neverthe- 
 less liable for the value of goods left at its warehouse to be 
 presently forwarded, which, while in store, were destroyed 
 by an accidental fire.^ 
 
 §534. Liability at Common Law, — The liability of 
 common carriers, as jBxed by the law of this country and 
 England, is probably so well understood as to render unnec- 
 essary further comment or illustration than a statement of 
 the general rule by which such hability is governed in re- 
 spect to the goods committed to the carrier's charge. This 
 rule is that such carriers will be liable for all damage and 
 loss of goods during the carriage, from whatever cause, un- 
 less from the act of God, which is hmited to inevitable 
 accident, or from the public enemy. ^ 
 
 § 535. Different Methods of Giving Notice. — The notice 
 by w^hich carriers seek to limit this liability is in some in- 
 stances actually communicated to the shipper, and in others 
 rests entirely upon declarations of the carrier's rules, made 
 pubhc by printed posters, signs, or the advertisement of 
 then' non-liabiUty, m connection with the customary solici- 
 tation of public patronage. Another method adopted alike 
 by railroad corporations and other carriers by land, and by 
 carriers by water, is to print the notice of the exemption . 
 claimed upon the ticket of the passenger, or the receijDt, way- 
 
 1 O'Neill V. New York & Hud. Eiv. R, R. Co., 60 N. Y., 138; Selway v. 
 Holloway, 1 Ld. Raym., 46. 
 
 ^ Moses V. Boston & M. R. R. Co., 24 N. H., 71. 
 3 2 Redfield on Railways, 6, and cases there cited.
 
 LIMITING LIABILITY OF CAERIEKS. 309 
 
 bill, or bill of lading, when engaged in tbe carriage of goods 
 and chattels. 
 
 § 536. State of the Law in England.— The state of the 
 law upon this question in England prior to the legislation 
 by which the responsibihty of carriers has been settled upon 
 a very reasonable basis in that country • may be illustrated 
 by the case of Maving v. Todd,'^ where the vendor of goods 
 in London forwarded them to the vendee in the country by 
 a carrier from whom he had received notice that his liabihty 
 for the safety of goods committed to his care for transporta- 
 tion was limited so as not to extend to a loss by fire. Dur- 
 ing the time the goods were in the possession of the carrier 
 they were accidentally destroyed by fire, and, in deciding an 
 action brought by the vendee to recover for their loss, it 
 was held by Lord Ellenbokough that, although the carrier 
 was selected by the vendor, the vendee was bound by the 
 selection, and, notwithstanding that the carrier was bound 
 to receive the goods, he might make his own terms and 
 exclude his liability for the loss of the goods altogether.' 
 
 § 537. Notice Must be Brought Home. — But while the 
 rule that notice was sufficient to restrict the carrier's com- 
 mon law liability prevailed in England, it was uniformly 
 insisted by the courts that such notice should be brought 
 home to the parties to be affected, or their agents. Thus, 
 
 1 11 Geo. rV. and 1 Wm. IV., c. 68; Railway & Canal Traffic Act, 17 & 
 18 Vict., c. 31, §7. 
 
 21 Stark., 73. 
 
 3 This leai-ned jurist is reported to liave expressed regret that tlie law 
 presented such encouragement to neghgence. In a case decided in the 
 following year (1816) he says, in the course of his summing up to the 
 jury: " If tliis action had been brought twenty years ago the defendant 
 would have been hable. * * * It was found that the common law 
 imposed upon carriers a liability of ruinous extent, and, in consequence, 
 qualifications and limitations of that liabiUty have been introduced from 
 time to time, till, as in the present case, they seem to have excluded all 
 responsibility whatsoever, so that, under the terms of the present notice, 
 if a servant of the carriers had, in the most wilful and wanton manner, 
 destroyed the f m-niture intrusted to them, the principals would not have 
 been hable. Leason v. Holt, 1 Stark., 186.
 
 310 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 where it was sougHt to prove notice by publication in the 
 " Gazette " and the London Times, it was held that, though 
 the former was admissible, it would be weak unless sup- 
 ported by evidence that the plaintiff was in the habit of 
 reading the paper, and the latter was excluded for the want 
 of prior proof that the paper was taken in by him.^ 
 
 § 538. Posting Notices Insufflcient. — So where printed 
 notices were posted in the most conspicuous places, as in the 
 office where the goods were delivered, it was held insuffi- 
 cient unless it actually came to the knowledge of the party 
 or his agent. As where the porter sent to deliver the 
 plaintiff's goods to the carrier saw a printed notice limiting 
 the carrier's liability, and it was proven that such porter 
 could read, this was held insufficient in the absence of proof 
 that he had read the notice.^ 
 
 § 539. Same. — So, also, where the goods were delivered 
 to a carrier's cart, sent around to receive them, for the de- 
 fendant's wagon, and a printed notice that defendant would 
 not be liable for packages bej^ond the value of £5, unless 
 insurance was paid, was posted at his office, and cards con- 
 taining a similar announcement had been circulated about 
 the town; and an advertisement to the same effect had been 
 published in the town paper ; but there was no such notice 
 on the cart, nor was it proved that plaintiff had read the 
 newspaper, or seen the printed notices posted at the office 
 or circulated through the town, it was held that the defend- 
 ant had not given sufficient notice to discharge himself from 
 his common law liabiHty.^ 
 
 §540. Example of Insufficient Notice. — "Where the 
 carrier fastened upon the door of his office, where parcels 
 were received for carriage, a handbill, blazoning in the most 
 conspicuous manner the advantages of his conveyances, and 
 stating in small characters at the bottom that he would 
 not be Hable for packages above the value of £5 unless 
 
 iLeason v. Holt, 1 Stark., 186; Walker v. Jackson, 10 M. & "W., 161. 
 
 2 Kerr v. WiUan, 2 Stark., 53; Davis v. Willan, id., 279. 
 
 3 Clayton v. Hunt, 3 Camp., 27. See, also, Munn v. Baker, 2 Stai-k., 255.
 
 LIMITING LIABILITY OF CAEKIEKS. 311 
 
 entered as such, and paid for accordingly^, this Avas held not 
 to be such notice as would bind those employing him as a 
 carrier to submit to the terms imposed.' 
 § 541. American Kule — Must be Clear and Explicit.— 
 
 "Where this rule is adopted in the United States the same 
 strictness with reference to the character of the notice is 
 required. Knowledge or information must in aU cases be 
 brought home to the party or his agents, and must be clear 
 and explicit as to the class of risks from which exemption 
 is claimed.^ The onus of proving any qualification of the 
 carrier's common law responsibility rests upon him, and 
 consequently it would not onl}^ be essential for him to show 
 that he has endeavored to inform the party by whom he is 
 employed that he will not be liable for the loss or damage 
 from which he seeks to exonerate himself, but he must also 
 prove to the satisfaction of the jury that such information 
 has been communicated to the party to be affected thereby.^ 
 § 542. Limitation of Extent of Liability. — Notices are 
 often given by carriers for the purpose of limiting the ex- 
 tent of their liability by requiring notice from the shipper 
 of tlie value of packages committed to their charge, with a 
 view to fixing the cost of carriage. The doctrine that no- 
 tice of such a regulation, when brought home to the ship- 
 per, will be binding upon him, seems to be more generally 
 accepted in this country than where the notice amounts to 
 an avowal of non-liability for the ordinary risks of trans- 
 portation, without reference to the question of concealment 
 of value. A regulation to the effect that the carrier wiU 
 not be responsible for packages or articles of a certain de- 
 scription beyond a given value, unless such value be dis- 
 closed and the carriage paid for according to the rates for 
 
 1 Butler V. Heane, 2 Camp., 415. See, also. Walker v. Jackson, 10 M. 
 «S: W., 161; Gouger v. Jolly, 1 Holt, 317. 
 
 2Beckinan v. Shouse, 5 Rawle, 179. 
 
 3 See Verner v. Switzer, 32 Pa. St., 208; Laing v. Coldar,' 8 Pa. 
 St., 479; Bingham v. Rogers, 6 W. & S., 495; Atwood v. The Reliance 
 Co., 9 Watts, 87; Edwards v. Cahawba, 14 La. An., 224.
 
 312 KOTICE BY WiriOII LIABILITIES EXTINGUISHED. 
 
 sucli packages or articles, is supported upon the plainest 
 principles of justice when applied to such commodities as 
 might far exceed their apparent value/ Thus, where dogs, 
 horses or other animals, or articles of personal adornment, 
 are committed to the care of a carrier for transportation, 
 it seems quite reasonable tliat such carrier should have a 
 right to require a disclosure of theh value where it exceeds 
 the ordinary rate at which similar animals are held in the 
 market, and to demand additional compensation for their 
 carriage.^ 
 
 § 543. Notice on Back of Railroad Ticket. — But notice 
 of such a regulation, in order to be of binding force upon a 
 shipper, must be actually communicated to him or his agents 
 in connection with the matter.^ It was accordingly held in 
 Brown v. Eastern Railroad Co.,^ that a notice printed on 
 the back of a railroad ticket, and detached from the part 
 which ordinarily contains aU that is material for the pas- 
 senger to know, to the effect that the company would not 
 be liable for the baggage of pa.ssengers beyond a certain 
 amount, unless the value was disclosed, would not be bind- 
 ing upon a passenger where such notice was not seen and 
 read by him when the ticket was purchased ; and that such 
 printed notice would not raise a legal presumption that the 
 ticket was purchased with a knowledge of the conditions, 
 but the question of .knowledge and assent on the part of 
 the passenger would be for the jury, 
 
 § 544. Must Ibe Seen and Understood. — The doctrine in 
 Brooke v. Pickwick ■' is applicable to all such notices. It is 
 
 1 RUey V. Home, 5 Bing., 217 ; Wyld v. Pickford, 8 M. & W., 443 ; Clay 
 V. Willan, 1 H. Blackst., 298; Izett v. Mountain, 4 East, 371. 
 
 2Harrison v. London, Brighton & So. Coast R> Co., 2 B. & S., 122; 
 Tylyy. Morrice, Carthew, 485; Cole v. Goodwin, 19 Wend., 251; Clay 
 V. Willan, 1 H, Blackst., 298; Mech. & Tr. Bank v. Gordon, 5 La. An., 
 604; Orange Co. Bank v. Brown, 9 Wend., 85; Gibbon v. Paynton, 4 
 Burr., 2298. 
 
 » Cole V. Goodwin, 19 Wend., 251. 
 
 4 11Cush.,97. 
 
 64 Bing., 218.
 
 LIMITING LIABILITY OF CAHKIEES. 313 
 
 there laid down by Best, C. J., that it is not enough to post 
 them conspicuously about the office or place of business of 
 the carrier, where the shipper may see and read them. It 
 is important that the customer should not only see, but 
 understand, the notice, and the carrier should be to the 
 pains to make him comprehend the restrictions and limita- 
 tions upon his liability which he proposes to claim. And 
 in the case of Kerr v. Willan,^ on a motion for new trial, 
 before a full bench, the court refusing the rule, and affirm- 
 ing the decision of Lord Ellenbokough, said : " If the 
 agent could not read he might hear, or, at all events, a 
 handbill might be delivered to him, to be taken to his 
 principal," and thus the notice be made effectual.^ 
 
 § 545. Party Unable to Read Notice. — So in an action 
 brought to recover a quantity of coin, which plaintiff had 
 placed in a trunk with his personal baggage, the whole 
 being lost in transit over the defendant's line, the de- 
 fense was that the defendant, a railroad corporation, had 
 published a notice that it would carry fifty pounds of 
 baggage for each passenger, and that passengers were " ex- 
 pressly prohibited from taking anything as baggage but 
 their wearing apparel, which will be at the risk of the 
 owner." Plaintiff had given no notice of the contents of 
 his trunk, but had paid for extra weight, and, being a Ger- 
 man, was unable to read defendant's notices, even if his 
 attention had been specially directed to them. The corpo- 
 ration was held liable as an insurer, according to the rules 
 of common law governing carriers, for the reason that it 
 failed to show that the contents of the notices intended to 
 
 13 Stark., 53. 
 
 - In order for the carrier to limit the extent of his liability it is necea- 
 saiy that he either give th^ notice in a manner so it will be understood, 
 or, if his objections are to a particular package on account of supposed 
 concealment of the value of its contents, he must make inquiry ; for if 
 there is no concealment on the part of the sliippor the carrier will be 
 bound for its full value in case of loss. Macklin v. Waterhouse, 5 
 Bing., 313; Titchburne v. White, 1 Str., 145.
 
 314 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 qualify its liability ever came to the knowledge of the 
 plaintiff.^ 
 
 § 546. Taking Paper Containing Advertisement, In- 
 snllieient. — In Eowley v. Home,- it Avas in evidence that 
 plaintiff had regularly taken a weekly newspaper in which 
 defendant's advertisements were inserted for over three 
 years. This the court held insufficient to raise a legal pre- 
 sumption of plaintiff's knowledge of the contents of such 
 advertisement, as it could not be intended that a party read 
 all the contents of any newspaper he might take. 
 
 § 547. To Whom Given — Servant. — In one case, plamt- 
 iff's trunk was deposited by the porter with a postmaster to 
 be delivered to the driver of defendants' stage-coach. The 
 doctrine was here acknowledged, that, had notice of any 
 reofulations limitine; defendants' liabilitv as common carriers 
 been communicated to plaintiff or his servant, the porter, 
 such notice would have qualified the carriers' responsibiUty. 
 But the mere fact that the postmaster through whose hands 
 the trmik passed to defendants' agent knew that defend- 
 ants had posted notices " that they would not be account- 
 able for any baggage unless the fare was paid and the same 
 entered on the way-bill," would not affect plaintiff, as the 
 postmaster could not be regarded as their agent.^ 
 
 § 548. Printed in Bill of Lading, Insufiftcient.— A con- 
 dition printed in the bill of lading, that the owner assumes 
 all risk, has been held no evidence of a contract limiting 
 the hability of the carrier, where the biU was not seen and 
 assented to by the owner, prior to the shipment.* 
 
 §549. Conflicting Notices.— - AVhere a notice in large 
 letters, written on a board and fastened up in the coach 
 office, declared that the proprietors of the coaches would 
 not be responsible for plate and jewels delivered for trans- 
 
 1 Camb. & Amb, Railw. v. Baldauf, 16 Pa. St., 67. 
 •iSBing., 2. 
 
 3 Bean r. Green, 12 Me., 422. 
 
 •»Flavey v. Northern Tx'ansp, Co., 15 Wis., 129; Erie, etc., Transporta- 
 tion Co. V. Dater, 8 Cent. L. J., 293.
 
 LIMITING LIABILITY OF CAEKIEES. 815 
 
 portation, however small the value, unless entered and paid 
 for as such ; but such proprietor also circulated a handbill 
 stating " that he would not be answerable for any article 
 above the value of £5, unless entered as such and paid for 
 accordingly," it was held that the handbill might be pre- 
 sumed to contain the whole of the limitations upon the car- 
 rier's liability, which he intended to claim. ^ 
 
 § 550. Same. — So, in Munn v. Baker,^ where the carriei's 
 had given two public notices, one of which, limiting their 
 liabihty as carriers, was printed in large letters, and posted 
 in the defendants' counting-house and warehouse at the 
 wharf, and the other was on a smaller paper, containing no 
 such limitation, Lord Ellenbokough was of the opinion 
 that by the delivery of a notice without the hmitation, the 
 defendants had nuUified the notice which contained the 
 limitation. Having given two notices, they were bound by 
 that least favorable to themselves. 
 
 § 551. Agent's Acts (joveriied by Notice to Principal. — 
 A hardship is sometimes worked by the rule which gives 
 effect to Hmitations and restrictions upon the habihty of 
 common carriers, upon notice to the owner of the goods 
 carried, irrespective of the assent of such owner, as requu'ed 
 by most of the American cases. As where notice was com- 
 municated to one, whose agent, without any knowledge or 
 information of the limited liabihty, sent a package of bank- 
 bills to his principal by the carrier, and such package was 
 lost. Here there could be no room for a presumption of 
 assent to the terms of the notice from the fact that the 
 package was intrusted to the carrier after the receipt of the 
 notice, because the bills were not intrusted to the carrier by 
 one who knew that such notice had been given ; yet it was 
 held that the carrier was exonerated because of notice to 
 the principal.^ 
 
 iCobden v. Bolton, 2 Camp., 108. 
 
 -'3 Stark., 255. 
 
 SMahew v. Eames, 3 B. & C, 601.
 
 316 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 552. General Doctrine in America — Cannot be Lim- 
 ited hy Notice. — The weight of American authority, inde- 
 pendent of statutory provisions, is decidedly against the 
 doctrine allowing the liability of common carriers to be lim- 
 ited or restricted by mere notice.^ Cases have even been 
 interpreted by an able text writer as going the length of 
 maintaining that carriers could not exonerate themselves 
 from their general liability, either by notice brought home 
 to the owner of goods, at the time they were delivered for 
 carriage, nor even by express contract to that effect.'^ 
 
 § 553. May he by Contract. — But the more prevalent 
 opinion seems to be that carriers may exionerate themselves 
 from the liability imposed by common law, by contract be- 
 tween the shipper and the carrier, though not by mere 
 notice from the latter to the former.* 
 
 iFish V. Chapman, 2 Ga., 349; Farmers & Mechanics' Bank v. Cham- 
 plain Tr. Co., 23 Vt., 186; Jones v. Voorhees, 10 Ohio, 145; Infra. 
 
 2 Redf. on Railways, § 159, T[ 6 ; Cole v. Goodwin, 19 Wend., 251 : HoUis- 
 ter;y. Nowlen, 19 Wend., 234; Gould v. HiU, 2 Hill, 623; Cam. & Amb. 
 R'y V. Belknap, 21 Wend., 354; Clark v. Faxton, 21 Wend., 153; PoweU 
 V. Myers, 26 Wend., 591. 
 
 3 Steele v. Townsend, 37 Ala., 247; Camd. & Amb. R. R. Co. v. Bel- 
 knap, 21 Wend., 354; Farmers & Mechanics' Bank v. Champlain Transp. 
 Co., 23 Vt., 186; York Co. v. Central R. R., 3 Wall., 107;,Walker v. 
 Ti-ansp. Co., id., 150; Lee v. Marsh, 43 Bai-b., 102; 111. Central R. R. 
 Co. V. Morrison, 19 111., 136; Gott v. Dinsmore, 111 Mass., 45; Snider v. 
 Adams Ex. Co., 63 Mo., 376; N. J. Steam, etc., Co, v. Merchants' Bank, 
 6 How., 344; Dow v. N. J, Steam, etc., Co., 11 N, Y., 485; Parsons v. 
 Monteath, 13 Bai'b., 353; Fillebrown u Raihoad, 55 Me., 462; McMillen 
 V. Raih-oad Co., 16 Mich., 79 ; Kimball v. Raih-oad, 26 Vt., 247 ; Davidson 
 V. Graliam, 2 Oliio St., 131; Adams Ex. Co. v. Haynes, 42 lU., 89; El. 
 Cent. R. R. Co. v. Frankenberg, 54 111., 88; Camden, etc., R. R. Co. v. 
 Baldauf, 16 Pa, St., 67; Farnliam v. Railroad, 55 Pa. St., 53; Grace v. 
 Ex. Co., 100 Mass., 505; Hoadley v. N, T. Co., 115 Mass., 304; Perry 
 V. Thompson, 98 Mass., 249; Roberts v. RUey, 15 La. An., 103; KoUman 
 V. Ex. Co., 3 Kan., 205; Boorman v. Ex. Co., 21 Wis., 152; Orndorff v. 
 Adams Ex. Co,, 3 Bush, 194; Adams Ex. Co. v. Guthrie, 9 Bush, 78; 
 Adams Ex. Co, v. Loeb, 7 Bush, 501; McCann v. Railroad, 20 Md., 202; 
 Mobile, etc, R, R, Co. v. Weiner, 49 Miss., 725; Southern Ex, Co, v. 
 Moon, 39 Miss., 822; Evansville, etc., R, R. Co, v. Young, 28 Ind., 516; 
 Virginia, etc., R. R, v. Sayers, 36 Gratt., 328; Smith v. Raikoad, 64 N.
 
 LIMITING LIABILITY OF CAERIERS. 317 
 
 § 554. Notice and Assent. — It is true that many of the 
 adjudged cases m this country place the earner's exemption 
 from liability upon the ground of his having given notice 
 to the shipper that he would not be held to the full measure 
 of his common law liability in undertaking to transport cer- 
 tain property, and that the shipper has assented to the terms 
 of such limited liability; ^ but this notice and assent amounts 
 to nothing less than an agreement between the parties. If 
 one party gives the other express notice that he will under- 
 take the performance of a particular service, only upon cer- 
 tain conditions, and the other accepts the service expressly 
 upon such conditions, there is nothing wanting to render this 
 a matter of agreement between the parties to the arrange- 
 ment, and such agreement will necessarily include the con- 
 ditions upon which the service was performed, as well as 
 the performance of the service itself.- 
 
 § 555. Assent Must l)e Toliintary. — The reciprocal obli- 
 gations arising from an undertaking by a common carrier 
 to transport goods, has, however, been placed on higher 
 grounds, in the case of a railroad corporation, than that of 
 a mere voluntary service. It is held to be the duty imposed 
 by law upon such carriers, to transport property for all per- 
 sons indifferently. This is a service which they cannot re- 
 fuse to perform, nor can they surround its performance with 
 such conditions and restrictions of their responsibility as 
 will compel shippers to release them from an}^ obligation 
 
 C, 235; Michigan, etc., R. R. Co. v. Heatou, 37 Ind., 448; Baltimore, 
 etc., R. R. Co. V. Skeels, 8 W. Va., 556; Camp v. Steamboat Co., 43 
 Comi., 333; Simon x\ The Fung Shuey, 21 La. An., 363; Westcott v. 
 Fargo, 63 Barb., 353. 
 
 1 Oppenheimer v. U. S. Ex. Co., 69 111., 62; Field v. Ch. & R. I. R. R. 
 Co., 71 111., 458. 
 
 2 3 Redfield on Railways, § 159, T[ 2 ; Grace v. Adams Ex. Co., 100 Mass., 
 505; State v. Townsend, 37 Ala., 247; Magee v. The Railroad, 45 N. Y., 
 514; Long v. The Raih-oad, 50 N. Y., 76; Belger v. Dinsmore, 51 N. Y., 
 166; Kirklandv. Dmsmore, 63 N. Y., 171; King r. Woodbridge, 34 Vt., 
 565; Mulligan v. Railroad, 36 Iowa, 181; Evansville, etc., R. Co. v. 
 Androscoggin MiUs, 23 WaU., 594; Bank of Kentucky v. Adams Ex. Co., 
 93 U. S., 174.
 
 318 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 imposed by law with reference to the care to be taken of 
 the property while in their possession. The only manner in 
 which they can be exonerated from their liability is by a 
 free and full agreement of the parties.^ In Illinois, at least 
 the conrts insist upon something more than tacit assent on 
 the part of the shipper. Mere acceptance of a receipt con- 
 taining the stipulation relied on by the carrier wnU not serve 
 the purpose. To bind the shipper it must appear that his 
 attention "was called to the limitation of habihty, or that he 
 knew and assented to it.- 
 
 § 556. Same. — With this view of the matter, it would 
 seem that something more than the tacit assent of the owner 
 of the goods carried would be requisite. This agreement, 
 to render it binding, must have for its support, what is 
 necessary in all contracts — a consideration.^ If the owner 
 of the goods may insist upon the carriage of his property 
 by the carrier as a matter of rights and the carrier is bound 
 to accept them for transportation as a correlative divty^ sub- 
 ject to the responsibility imposed by law upon carriers, the 
 performance of this positive duty could not be construed 
 into a consideration for the contract by which the owner 
 consents to a qualification of the carrier's liabihty. Un- 
 less there should be some consideration passing from the 
 carrier to the owmer of the goods, as abatement in the 
 charges, or other advantage, which he w^as not positively 
 entitled b}^ law to demand, such a contract would possess 
 no more vahdity than an agreement between the maker 
 and the payee of a promissory note, past due, for the ex- 
 
 1 Mich. Cent. R. R. v. Hale, 6 Mich., 243 ; McMill v. M. S. & N. I. R. R. 
 Co., 16 Mich., 79; Adams Ex. Co. v. Guthrie, 9 Bush, 78; Messenger v. 
 Penn. R. R. Co., 37 N. J. Law, 531; Brown v. Grand Tnink R. R., 54 
 N. H., 535. 
 
 - Adams Ex. Co. v. Haynes, 42 111., 891 ; Adams Ex. Co. v. Stattnners, 
 61 111., 184; Field v. Railroad, 71 lU., 458: Anchor Line v. Dater, 68 HI., 
 369. See, also, C. H. & D. R. Co. v. Pontius, 19 Ohio St., 221; Welsli v. 
 Pittsburg, etc., R. Co., 10 Ohio St., 65; Games u. Union Tr. Co., 28 Ohio 
 St., 418; Tel. Co. v. Griswold, 37 Ohio St., 301. 
 
 31 Pars, on Cont., 427, and cases cited.
 
 LIMITING LIABILITY OF CAKEIEKS. 319 
 
 tension of time, in consideration of the payment of a portion 
 of the principal.^ 
 
 § 557. Views of Judge Redfield.— Judge Eedfield, in 
 his excellent work on Railwaj^s,- expresses views upon this 
 subject which seem to lead to the foregoing conclusions. 
 Says the learned author : " But a notice brought home to 
 the owner of the goods, as evidence, merits a very different 
 consideration in this species of baihuent from any other 
 where there is no obligation on the bailee to assume the 
 duty. In the case of a carrier, with whom it is not optional 
 altogether whether to carry goods offered or not, but where 
 he must carry such goods as he is accustomed to carry, upon 
 the general terms of liability imposed by the law, or submit 
 to an action for damages, and where every one desiring 
 goods carried has the option to have them carried without 
 restriction of the carrier's duty, unless he choose to waive 
 some portion of his legal rights for present convenience or 
 ultimate peace, the mere fact of such notice restricting the 
 carrier's liability being brought home to the knowledge of 
 the owner of goods, before or at the time of depositing 
 them with the carrier, is no certain ground of inferring 
 whether the carrier consented to recede from his notice and 
 perform the duty which the law imposes upon him, or the 
 owner of the goods consented to waive some portion of his 
 legal rights. Perhaps, upon general grounds of inference, 
 it might be regarded as more logical and more reasonable 
 to infer that the carrier receded from an illegal pretension, 
 than the owner of the goods from a legal one." * 
 
 1 1 Story on Prom, Notes, § 414, note. 
 
 2 2 Redf . on Eailways, § 159. 
 
 3 Where the receipt or bill of lading is relied on to limit the carrier's 
 liability as a contract, it must have been given at the time the goods 
 were received, or, if afterwards, its subsequent delivery must be under 
 a general understanding. The carrier cannot make conditions after ac- 
 cepting the service, Gaines v. Tr. Co., 28 Ohio St., 418 ; Blossom r. Grif- 
 fin, 13 N. Y., 569; Shelton v. Merchants' D. T. Co., 59 N. Y., 258; Pruitt 
 V. Railroad, 63 Mo., 527; Bostwick v. Raikoad, 45 N. Y., 713.
 
 320 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 558. Notice Never Exempts from Negligence. — Where 
 it is admitted that carriers may limit their common law lia- 
 bility by notice to the owners of property carried, by spe- 
 cially enumerating the risks against which they decline to 
 insure; and where there is such notice and assent as to 
 amount to an agreement between the parties that the car- 
 rier shall be released from the burthens imposed by reason 
 of their character of common carriers, the benefits of this 
 exemption will not extend to losses which are the result of 
 the nefjliffence of the carrier or his servants.^ Some of the 
 cases cited take the ground that not only will notice be in- 
 suificient for the purpose of excusing negligence in the car- 
 rier, but that an express contract for that purpose will be 
 equally unavailing, for the reason that such contracts are 
 against public policy.^ 
 
 1 Cole V. Goodwin, 19 Wend., 251 ; Ashmore v. Steam Tow and Trans. 
 Co., 28 N, J., 180; Riley v. Home, 5 Bing., 217; Sleat v. Fagg, 5 Barn. 
 & Aid., 342; Bii-kett v. Willan, 2 Barn. & Aid., 356; Bodenham v. Ben- 
 nett, 4 Price, 31; Smith v. Home, 8 Taunt., 144; Newborn v. Just, 2 
 Carr. & P., 76; Wyld v. Pickford, 8 M. & W., 443; Orndorff v. Adams 
 Ex, Co., 8 Bush, 194; Rhodes v. Louisv. & Nashv. R. R. Co., 9 Bush, 
 688. 
 
 •2 Ashmore V. Penn. Steam Tow & Trans. Co., 28 N. J. (Law), 180; Cole 
 V. Goodwin, 19 Wend., 251; Sager v. Portsm., S. & P. & E. R. R., 31 
 Me., 228; Camd. & Amb. R'y v. Baldauf, 16 Pa. St., 67; Bingham v. 
 Rogers, 6 W. & S., 495; Penn. R'y Co. v. McCloskey, 23 Pa. St., 526; 
 Baker v. Brinson, 9 Rich., 201; Reno v. Hogan, 13 B. Mon., 63; Hall v. 
 Cheney, 36 N. H., 26; PoweU v. Penn. R. R. Co., 32 Pa. St., 414; Kansas 
 City, etc., R. Co. v. Simpson (Kan.), 2 Pac. Rep., 831 ; Jones v. Voorliies, 
 10 Ohio, 145; Wilson v. Hamilton, 4 Ohio St., 722 ; Cleveland, etc., R. 
 Co. V. Curran, 19 Ohio St., 1 ; Cincinnati R. Co. v. Pontius, 19 Ohio St., 
 221 ; Union Ex. Co. v. Graham, 26 Ohio St., 595; Pennsylvania R. Co. v. 
 Henderson, 51 Pa. St., 315; Empure T. Co. v. Oil Co., 63 Pa. St., 14; 
 American Ex. Co. v. Bank, 69 Pa. St., 394; School Disti'ict v. Railroad, 
 102 Mass., 552; Commonwealth v. Railroad, 108 Mass., 7; Ketchum v. 
 American, etc., Ex. Co., 52 Mo., 390; Read v. St. Louis, etc., R. Co., 60 
 Mo., 199; South, etc., R. Co. v. Henlein, 52 Ala., 486; Berry v. Cooper, 
 28 Ga., 543; Mobile, etc., R. Co. v. Hopkms, 41 Ala., 486; Oliio, etc., R. 
 Co. V. Selby, 47 Ind., 471; Rose v. Railroad, 39 la., 246; Jacobus v. Rail- 
 road, 20 Minn., 125.
 
 LIMITING LIABILITY OF CAERIEES. 321 
 
 § 559. Example of Express Contract Held Inopera- 
 tive. — In an important case decided in tlie supreme com't 
 of the United States/ where an express carrier, by special 
 contract with the transportation company, was allowed to 
 carry packages upon their boats, under the immediate care 
 and oversight of such expressman, Avith the express stipula- 
 tion that all persons delivering parcels to the expressman 
 for carriage should be notified that he alone was responsible 
 for their safety, there was annexed to the receipt given by 
 him for goods, the following notice, which was also required 
 to appear in connection with his public advertisement: 
 " Take notice, William F. Harnden is alone responsible for 
 the loss or injury of any articles or property committed to 
 his care, nor is any risk assumed by, nor can any be at- 
 tached to, the proprietors of the steamboats, in which his 
 crate may be and is transported, in respect to it or its con- 
 tents at any time." The expressman had undertaken the 
 carriage of a considerable sum in specie, for the bank, and 
 the boat on which he was transporting it from JSTew York 
 to Boston, through the gross mismanagement of the com- 
 pany's agents and servants, was burned, and the specie 
 totally lost. In pronouncing the opinion of the com-t, Mr. 
 Justice Nelson gives the following able and satisfactory ex- 
 planation of the rule governing the case : " The special 
 agreement in this case under which the goods were shipped 
 provided that they should be conveyed at the risk of Harn- 
 den, and that the respondents were not to be responsible to 
 him, or to his employers, in any event, for loss or damage. 
 The language is general and broad, and might very well 
 comprehend every description of risk incident to the ship- 
 ment. But we think it would be going further than the 
 intent of the parties, upon any fair and reasonable con- 
 struction of the agreement, were we to regard it as stipulat- 
 ing for wilful misconduct, gross negligence, or want of 
 ordinary care, either in the seaworthiness of the vessel, her 
 
 1 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How,, 344. 
 21
 
 322 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 proper equipment and furniture, or in her management by 
 the master and hands. This is the utmost effect ^hat was 
 given to the general notice, both in England and in this 
 country, when allowed to restrict the carrier's habiUty, 
 although as broad and absolute in its terms as the special 
 agreement before us (Story on Bailments, § 570); nor was it 
 allowed to exempt him for accountability for losses occa- 
 sioned by a defect in the vehicle or mode of conveyance 
 used in the transportation. Although he was allowed to 
 exempt himself from losses arising out of events and acci- 
 dents against which he was a sort of insurer, j^et, inasmuch 
 as he had undertaken to carry the goods from one place to 
 another, he was deemed to have incurred the same degree 
 of responsibility as that which attaches to a private person 
 engaged casually in the like occupation, and was therefore 
 bound to use ordinary care in the custod}^ of the goods, and 
 in their deUvery, and to provide proper vehicles and means 
 of conveyance for their transportation. This rule, we think, 
 should govern the construction of the agreement in ques- 
 tion." 
 
 § 560. Cases Arising Under English Statute. — By the 
 English Railway & Canal Traffic Act,^ the current of author- 
 ity in that country is somewhat changed from what it was 
 in the time of Lord Ellenborough, when he expressed re- 
 gret at the encouragement given by the precedents to negli- 
 gence.- By this act, notices, and even contracts exempting 
 common carriers from liability, are made the subject of re- 
 - vision by the courts, as to the reasonableness of the con- 
 ditions upon which the carriage is undertaken.-^ Under this 
 statute it has been decided that a notice by a carrier by rail, 
 assented to by the shipper, that in regard to live stock they 
 Avould not be liable for any injury or damage howsoever 
 
 1 17 and 18 Vict., ch. 31, § 7. 
 
 2 Ante, § 536. 
 
 3 Peek u. North Staffordshire R'y Co., 10 H. L, Cas., 478; Lloyd v, 
 Waterford & Limerick R'y Co., 9 Law T. (N. S.), 89; Allday u. Great 
 West. R'y Co., 11 Jur. (N. S.), 13.
 
 LIMITING LIABILITY OF CAKEIEKS. 323 
 
 caused, was unreasonable, and would not excuse the com- 
 pany, where the loss occurred from a defect in a box in 
 which they undertook to carry a horse.' Where the carrier 
 gave notice that he would not be responsible for packages 
 of a particular description, he was nevertheless held liable 
 to the owner of one of such packages, which he undertook 
 to transport, and delivered to the wrong person.'- 
 
 § 561. Further Illustration of Same. — In a case aris- 
 ing under the Enghsh Carriers' Act, the court, in determining 
 whether the conditions upon which goods were accepted for 
 transportation, or the special contract between the shipper 
 and the carrier was reasonable, considered the whole matter 
 brought before them, and held that a condition that the com- 
 pany would not be responsible for the loss, detention or 
 damage of any package insufficiently or improperly packed 
 was unjust and unreasonable, though it was admitted that 
 regulations as to the time within which a claim for damages 
 should be made belonged to a class which might be the 
 j)roper subject of stipulation between the parties.' 
 
 § 562. Notice of Arrival. — The notice of arrival, when 
 required of common carriers, is a duty which is incidental 
 to the peculiar circumstances by which the most extensive 
 public carriers are prevented from actually delivering the 
 articles transported to the immediate possession of the con- 
 signees. The instances are rare in which it is practicable 
 for those engaged in carrying by water, to make personal 
 dehvery of goods carried on their vessels. The same may 
 be said of carriers by rail. The best equivalent for such 
 delivery is, when the goods have reached their place of con- 
 signment, to give notice to the consignee. 
 
 § 563. Will Terminate Liability as Carrier. — Whether 
 the giving of such notice of arrival be an absolute duty im- 
 
 1 McManus v. Lancashire, etc., R'y, 4 H. & N., 327. 
 
 2Dujff V. Budd, 3 Brod. & Bing., 177; Beck v. Evans, 16 East, 244; 
 Bodenhani v. Bennett, 4 Pi-ice, 31. 
 
 3 Simons v. Great West. R'y Co., 37 Eng. L. «&; Eq., 286; London & N. 
 W. R'y Ck). V, Dunham, 18 C. B., 826.
 
 324 NOTICE BY wnicn liabilities extinguished. 
 
 posed upon the carrier or not, there can be no doubt that 
 when a vessel has completed her voyage, and reached the 
 port of dehvery, or when the carrier by rail has reached the 
 station to which the goods are consigned, such carrier, 
 whether by land or water, cannot be held liable for the care 
 and safe-keeping of the goods, as carrier, at the option of 
 the consignee. It would be imposing an unconscionable 
 burden upon them to say that they had no means by which 
 they might put an end to the transit of the goods, short of 
 personal delivery to the consignees at their several places of 
 business, unless such places of business were at a convenient 
 wharf or dock, or upon the immediate hne of the railway. 
 It has accordingly been held that carriers of this class may 
 exonerate themselves from such liabihty, by giving reason- 
 able notice to the consignee of the arrival of the articles 
 transported.* 
 
 § 564. Reasonable Time for Removal After Kuowledge 
 of Arrival. — And even when there is no direct notice from 
 the carrier to the consignee that the goods have arrived, 
 but knowledge of such fact is brought home to him, from 
 whatever source derived, the carrier could only be held 
 liable until the consignee had a reasonable time within 
 which to remove the goods, after knowledge of their arrival."'^ 
 
 § 565. Classification of Conflicting Authorities. — The 
 rule as to the duty of carriers to give notice of the arrival 
 of goods is by no means so uniform as that requiring the 
 consignee to act at his peril upon such notice when given. 
 Judge CooLET, in rendering the opinion of the court in Mc- 
 Millan V. Michigan Southern & Northern Indiana Eaih^oad 
 
 1 Chickering v. Fowler, 4 Pick., 371 ; Northern v. Williams, 6 La. An., 
 578; The Ship Grafton, Olcott's R., 43; Stowe v. N. Y., Bost. & Prov. 
 E. R. Co., 113 Mass., 521 ; Robinson v. Chittenden, 14 N. Y. Sup. Ct., 133 ; 
 Cope V. Cordova, 1 Rawle, 203. 
 
 2 Norway Plains Co. v. Boston & M. R. R. Co., 1 Gray, 263; Redmon 
 V. Steamboat Co., 46 N. Y., 583; RusseU Mfg. Co. v. Steamboat Co., 50 
 N. Y., 121 ; Gleadell v. Tliomson, 56 N. Y., 194; McAndrew v. Whitlock, 
 52 N. Y., 40; Crawford v. Clark, 15 111., 561.
 
 LIMITING LIABILITY OF CAKRIERS. 325 
 
 Company,' divides the conflicting authorities upon this ques- 
 tion, as respects carriers by railroad, into three classes: 
 1. Cases where it is held that the liability of the carrier 
 ceases at the terminus of the route and the unloading of the 
 goods, regardless of the giving of notice, or the time of 
 removing the property. 2. Such as hold the carrier liable 
 after arrival of the goods, and a reasonable time for the con- 
 signee to remove them, but requiring the consignee to take- 
 notice of such arrival. 3. Those cases where it is held that 
 the carrier's liability continues until notice to the consignee, 
 and a reasonable time thereafter to enable him to take pos- 
 session of the goods. In the course of the opinion the 
 learned judge takes occasion to say : " I am unable to dis- 
 cover any ground, which to me is satisfactory, on which a 
 common carrier of goods can excuse himself from personal 
 delivery to the consignee, except by that which usage has 
 made a substitute. To require him to give notice when 
 the goods are received, so that the consignee may know 
 when to call for them, imposes upon him no unreason- 
 able burden." ^ A brief review of the authorities will show 
 that this question is decided so differently, in different 
 locaUties, that the attempt to reconcile them must be utterly 
 futile. 
 
 § 56G. Massachusetts, Illinois, Iowa. — In the state of 
 Massachusetts the doctrine is laid down, where goods shipped 
 by railroad and not called for on their arrival at the 
 place of destination are unloaded and separated from the 
 ffoods of other consignees, and are stored in suitable ware- 
 houses or depots provided by the carriers for their protec- 
 tion, that then the duty of the proprietors of the road, as 
 carriers, is at an end. They have performed their entire 
 contract. They have received and transported the goods to 
 their destination, and the consignee not being present to re- 
 ceive them, they have been stored in safety, whence the con- 
 
 1 16 Mich., 79. 
 2 Id., 108.
 
 326 KOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 signee may take them in a reasonable time.^ The same 
 doctrme is declared in a later case by the same com-t, where 
 it is said that the carrier's responsibihty ends when the 
 goods are taken from the car and placed on the platform ; 
 that if, on account of the unseasonable hour of their arri- 
 val, or for other cause, the owner is not present to receive 
 them, they are stored in the railroad company's warehouse, 
 the liability assumed is that of warehousemen, and they 
 will only be held responsible for injury or loss through the 
 negligence of the depositaries. The doctrine that, in order to 
 exonerate themselves from their liability as carriers, railroad 
 corporations were required to give notice of the arrival of 
 goods, was expressly denied.- 
 
 § 567. Modification of the Rule in Massaclinsetts. — 
 The doctrine of the case last cited, as to the termination of 
 the carrier's liabihty, is somewhat modified by later cases 
 decided in the same state, wherein it is held that the duty 
 of the common carrier by rail, with reference to the goods 
 transported, includes unloading them w^ith care, and if not 
 deUvered at once, storing them in a suitable and safe place 
 for future delivery ; but notice of arrival is not held requi- 
 site, nor is the liability of the raiboad company for loss or 
 damage occurring otherwise than by the negUgence of its 
 servants, at any time after such storage, admitted in either 
 case.* 
 
 » Thomas v. Boston & Providence R. R. Co., 10 Mete, 473; Lamb v. 
 Western R. R. Co., 7 AUen, 98. See, also, Porter v. Cliicago & R. I. R. 
 R., 20 111., 407; Richards v. M. S. & North Ind. R. R., id., 404; Chicago 
 & Alton R. R. Co. v. Scott, 43 111., 133; Merchants' Disp. Tr. Co. v. Hal- 
 lock, 64 111., 284; Mohr v. The C. & N. W. R. R. Co., 40 la., 579; Roths- 
 childs V. M. C. R. R. Co., 69 lU., 164; Barron v. Eldiedge, 100 Mass., 
 455 ; Stowe v. Raihoad, 113 Mass., 531 ; McCarthy v. Raih-oad, 30 Pa. St., 
 247; Shenck v. Propeller Co., 60 Pa. St., 109; Chicago, etc., R. Co. v. 
 McCool, 26 Ind., 140; Southwestern R. R. v. Felder, 46 Ga., 433; Mobile, 
 etc., R. R. V. Prewitt, 46 Ala., 63; Neal v. Railroad, 8 Jones (Law), 482. 
 
 2 Norway Plains Co. v. Boston & Me. R. R., 1 Gray, 263. 
 
 3 Sessions. Western Railroad Corp., 16 Gray, 133; Rice v, Boston & 
 Worcester Raih-oad Corp., 98 Mass., 212.
 
 LIMITING LIABILITY OF CAKKIEES. 327 
 
 § 568. New Jersey, Vermont — Reasonable Time to Re- 
 move.— In Morris & Essex Kailroad Co. v. Ayres,^ the dis- 
 tinction made between the rule governing carriers by wagon, 
 carriers by water, and carriers by rail, is that the first is re- 
 quired to make personal delivery at the consignee's place of 
 business ; the second, from the fact that such personal de- 
 livery would be impracticable for them, are bound to give 
 notice of the arrival of tlie vessel containing the ffoods; 
 while the third, although incapable of delivering the goods 
 to the consignee at his own door or place of business, is not 
 required to give such notice, because of the regularity of 
 the arrival of the trains. Their duty as carriers, however, 
 is said to cease \vith then* having the goods safely housed 
 and ready for delivery, allowing a reasonaUe time for the 
 owner or consignee to remove them. The same doctrine as to 
 carriers by rail is perhaps more clearly and comprehensively 
 stated by Judge Kellogg, in Blumenthal v. Brainard,- where 
 it is said that their responsibility as carriers "continues 
 after their arrival at the place of destination, until they are 
 ready to be delivered at the usual place of delivery, and the 
 owner or consignee has had a reasonable opportunity, dm'- 
 ing the hours when such goods are usually delivered there, 
 of examining them, so far as to judge from their outward ap- 
 pearance of their identity, and whether they are in a proper 
 condition, and to take them away ; and that it is the duty 
 of the owner or consignee, under the contract of carriage, 
 to take notice of the course of business at the station of 
 delivery, and of the time of the arrival of the train, when 
 his goods may be expected at the place of destination, and 
 to be ready to receive them in a reasonable time after their 
 arrival, and when in the common course of business they 
 may fairly be expected to be ready for delivery." ' 
 
 1 29 N. J. (Law), 393. 
 
 2 38 Vt., 402-13. 
 
 3 See, also, Chicago, etc., R. Co. v. Bensley, 69 111., 630; Alabama, 
 etc., R. Co. V. Kidd, 35 Ala., 209.
 
 328 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 569. Additional Authorities. — Other cases cited in 
 support of the foregoing doctrine do not necessarily involve 
 the question of notice, but favor holding the carrier to the 
 full extent of his liabihty as such, not only until the goods 
 have reached their destination, and are ready for dehvery, 
 but until the owner or consignee has had a reasona'ble oppm^- 
 tiuiity to take thein away} In neither of the cases cited was 
 the question of notice necessary to be determined. In both 
 instances the goods were unladed at so late an hour in the 
 day that it would have been impossible to remove them, and, 
 before the warehouse where they were stored was opened 
 for their dehvery, the goods were lost.^ 
 
 § 570. New York, Michigan, Texas, New Hampshire 
 and otlier States — Notice Required. — In the state of ISTew 
 York, the rule may be regarded as settled in perfect har- 
 mony with the views of Judge Cooley in McMillan r>. Mich. 
 South. & ISTorth. Ind. R. R. Co.^ In the case of McDonald 
 -y. The Western Railroad Corp.,* it is laid down that notice 
 to the owner or consignee of the arrival of the goods, and 
 a reasonable time and opportunity to remove them after 
 such notice, wiU come in lieu of the personal delivery re- 
 quired of carriers by wagon, in order to change the character 
 of the habihty from that of carrier to the less onerous re- 
 sponsibility of warehouseman. This doctrine is accepted in 
 other states.^ 
 
 1 Moses V. Boston & Me. R. R. Co., 32 N. H., 533; Wood v. Crocker, 18 
 Wis., 345; The Eddy, 5 WaU., 481; Goodwin v. Raili-oad, 58 Bai-b., 195. 
 
 2 Redf. on Railways, § 183, ^ 9. 
 3 16 Mch., 79, cited ante, § 565. 
 
 4 34N. Y., 497. 
 
 5 Smith V. Nashua & L. R. R., 27 N. H., 86 ; Morgan v. Dibble, 39 Tex., 
 107. See, also, Blumenthal v. Brainard, 38 Vt. , 402 ; Ouimit v. Hen- 
 shaw, 35 Vt., 604; Wood v. Crocker, 18 Wis., 345; Leuike v. Railroad, 
 39 Wis., 449; Maignan v. Raihoad, 24 La. An., 333; Jeffersonville, etc., 
 R. Co. V. Cleveland, 2 Bush, 468; Hksch v. Quaker City, 2 Disney (O.), 
 144; Morris, etc., R. ads. Ayres, 29 N. J. L., 393; Leavenworth, etc., R. 
 V. Maris, 16 Kans., 333.
 
 LIMITING LIABILITY OF CAERIEES^ 329 
 
 §571. Carriers by Water — Notice Recjuired. — When 
 the carriage is by water, the rule seems more uniform, ex- 
 cept as modified or affected by local custom. The doctrine 
 that notice to the consignee is necessary to exonerate the 
 carrier, whose duty, so far as actual transportation is con- 
 cerned, is limited to carrying the property from port to 
 port, is quite generally recognized in this country; in fact, 
 may be said to be the acknowledged rule in all the states, 
 unless the principles laid down in the Massachusetts cases 
 cited may be regarded as in conflict. • 
 
 § 572. Comparison of Conflicting Tiews. — The rule 
 adopted in some of the states, holding the carrier by rail to 
 the full measure of accountability as carrier, until a reason- 
 able time has elapsed for removal, is certainl}'- founded upon 
 better reasons and supported by higher authorit}" than the 
 doctrine by which the goods are held at the risk of the con- 
 signee, barring the carrier's gross negligence, from the mo- 
 ment they are removed from the cars. The latter doctrine 
 proceeds upon the anomalous theory that the carrier, upon 
 receiving the goods, enters into an undertaking, not only to 
 transport them as a common carrier, but, when they have 
 reached their destination, to store and hold them as a ware- 
 houseman. The opposite doctrine recognizes the possible 
 impracticability of removing the goods immediately upon 
 their arrival, and continues the carrier's accountability until 
 the consignee or owner may have an opportunity, in the 
 usual course of business, to take them into his owti posses- 
 sion. But both doctrines, as regards the question of notice, 
 are founded upon an assumed regularity and punctuality in 
 the arrival of freight trains, and the supposition that the 
 owner or consignee of chattels shipped as freight have re- 
 ceived antecedent information that the property would 
 arrive by a particular train. Were this uniformly true, 
 
 I Price V. Powell, 3 N. Y., 333; Fiske v. Ne^vton, 1 Den., 45; The Mary 
 Wasliington, Chase. Dec. 125; Smith v. Nashua R. R. Co., 27 N. H., 
 86 ; Rome R. R. v. SuUvan, 14 Ga., 277; Houston & Tex. Cent. R'y Co. 
 V. Hodde, 43 Tex., 467; Union Steamboat Co. v. Knapp, 73 111., 506.
 
 330 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 there could be little difficulty in reconciling some of the 
 decisions which seem so conflicting. But where large quan- 
 tities of freight are delivered to the carrier, and he is unable 
 to forward the same promptly, in order to enable the con- 
 signee to anticipate, with any degree of certainty, the 
 arrival of goods shipped as freight, the consignor, or some 
 one acting at the place of shipment, would be compelled to 
 take notice of the actual loading of the property and the 
 departure of the train. This is a dut}^ which, we have seen, 
 is not incumbent upon shippei's.* The goods are in the pos- 
 session of the carrier, and his liability as such commences 
 from the time they are delivered to him for present for- 
 warding, whether the actual transit commences at once or 
 on a subsequent day. The consignor, therefore, cannot 
 ordinarily advise the consignee with certainty that the 
 goods were placed upon a certain train, which departed on 
 a certain day and would arrive on a certain day. Any such 
 information from him, unless he goes out of his way to ob- 
 tain it, must be a matter of guess work. If, as is usual, the 
 duty of forwarding the goods is intrusted to the carrier, any 
 advice as to their arrival would properly come from him. 
 Should the carrier so advise the owner or consignee, the 
 latter would have notice, and there would no longer be 
 room for controversy.^ 
 
 § 573. Rule BeQ[iiiriiig Notice, Preferred. — For the 
 reason, therefore, as so well expressed by Judge Cooley in 
 the case heretofore cited,* that •' the man who sends his 
 goods by railroad, and who desires to receive them as soon 
 as they reach their destination, has commonly no design to 
 employ the railroad company in any other capacit}^ than 
 that of carrier," and for the further reason that the duty of 
 giving notice of arrival would be light compared to that of 
 keeping constant watch upon the movements of freight 
 
 1 Ante, § 433 et seq. 
 
 2 Opinion of Judge Breese, in CMcago & Alton R. R. Co. v. Scott, 43 
 
 ni., 138. 
 
 3 16 Mich., 105.
 
 LIMITING LIABILITY OF CAEEIEES. 331 
 
 trains; and because the knowledge of this simple duty is 
 much more easily communicated to a few common carriers, 
 so that they may regulate their business accordingly, than 
 it would be to bring home to every one to whom property 
 might be transported by rail, knowledge of the opposite 
 regulation; and on account of the impolicy of removing 
 the incentives to diligence and care in selecting officers 
 and servants of prudence and integrity by corporations 
 controlling large quantities of the property of individuals 
 intrusted to them, as well as on account of the analogy 
 between carriage by rail and by water, the better doctrine 
 is that which continues the carrier's liability as special in- 
 surer until due notice or knowledge of the arrival of the 
 goods is brought home to the owner or consignee, and a 
 reasonable time thereafter, during business hours, within 
 which to remove them.^ 
 
 § 574. Conflict Explained by DifTerence in Local Cus- 
 toms. — The only ground upon which the conflicting decis- 
 ions of different courts, upon this question, can be recon- 
 ciled in order to render them consistent with the same 
 method of reasoning, is by taking into account the different 
 circumstances and the different customs of those communi- 
 ties whose courts rule adversely to each other.^ The courts 
 of any particular state may have settled the law in a man- 
 ner suitable to their own condition, and in view of the pe- 
 culiarities surrounding their local railroad traffic, while in 
 
 1 Green & C. Navigation Co. v. Marshall, 48 Ind., 596; Houston & 
 Texas Cent. R'y Co. v. Hodde, 43 Tex., 467; Rawson v. Holland, 47 
 How. (N. Y.) Pr., 292; Erskine v. Steamboat Thames, 6 Mo., 371; The 
 Tybee, 1 Woods, 358 ; Fenner v. Buffalo & State Line R. R. Co., 44 N. Y., 
 505; The Mary Washington, Chase, Dec., 125; Price v. Powell, 3 N. Y., 
 322; The Paytona, 2 Curtis, 21. 
 
 2 Smith V. Nashua RaUroad, 27 N. H., 86 ; Gibson v. Culver, 17 Wend., 
 305; Ostrander v. Brown, 15 Johns., 39; Cliicago & Rock Island R. R. 
 Co. V. Warren, 16 lU., 502; Rome R. R. v. Sulivan, 14 Ga., 277; Hill v. 
 .Humphi-eys, 5 Watts & Serg., 123; IMich. Cent. R. R. Co. v. Wai-d, 3 
 Mich., 538; Kohn v. Packard, 3 La., 224; Quiggm v. Duff, 1 M. & W., 
 174; Angell on Carriers, § 313; Hyde v. Navigation Co., 5 T. R., 389.
 
 332 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 another state an opposite conclusion may be reached for the 
 reason that this method of transporting goods is more or 
 less certain and regular as there carried on. 
 
 § 575. Rule Affected by Custom. — A local custom of the 
 place of delivery, of which the consignee or owner has no- 
 tice, may very materially modify or enlarge his rights with 
 respect to notice of the arrival of goods, whether carried 
 by water, rail, or by wagon.^ 
 
 § 576. Waiver aud Excuse. — The duty of giving such 
 notice is not so imperative that it may not be waived by 
 contract, or even by the conduct of the owner or consignee. 
 And like every other kind of notice, the party required to 
 give it may be excused from doing so. Thus, where the 
 consignee of the goods had within sixteen days prior to their 
 arrival taken up her abode about four miles distant from 
 the place of destination, prior to which time she had resided 
 in another state, and no notice was given to the railroad 
 company or any of its officers of her place of residence, 
 which, upon reasonable inquiry, they were unable to ascer- 
 tain, the property being destroyed by fire while in the com- 
 pany's warehouse after a reasonable time for its removal, it 
 was held that the company was only liable as warehousemen, 
 and the loss being through no fault of theirs they were dis- 
 charged from all responsibility. ^ So the carrier has been ex- 
 cused from giving notice to such consignee when he resided 
 at a considerable distance from the place of destination, and 
 no one was present when the goods arrived to receive them 
 or take notice of their arrival.* So, also, where usages and 
 customs of the community where the goods are received is 
 not to give notice of the arrival of goods, and the consignee 
 
 iTheTybee, 1 Woods, 358; The Richmond, 1 Biss., 49; Farmers' & 
 Mechs. Bank V. Chamijlain Trans. Co., 16 Vt., 52; Huston v. Peters, 1 
 Met. (Ky.). 558. 
 
 spelton V. Rensselaer & Saratoga R. R. Co., 54 N. Y., 214; The Mary 
 Washington, Chase, Dec, 125. 
 
 3 Northrop v. Syi-acuse, B. & N. Y. R. R. Co., 3 Abb. App. Dec. (N. Y.), 
 386; Fenner v. Buffalo & State Line R. R. Co., 44 N. Y., 505.
 
 LIMITING LIABILITY OF CAERIEKS. 333 
 
 Lad sufficient notice of the custom, it may be regarded un- 
 necessary,^ 
 § 577. Reasonal)le Time for Removal. — What has been 
 
 said with reference to " reasonable time " suggests the ques- 
 tion : What time would be considered reasonable, in order 
 to allow of the removal of property from the possession of 
 the carrier at the place of delivery ? This is a question of 
 fact which can receive no definite answer here, because 
 there is no rule of law governing it more certain than that 
 it will depend upon the circumstances and the business cus- 
 toms of the place of delivery. But it is not to be understood" 
 that the time allowed to a consignee or owner, after notice, 
 to claim the goods may be materially enlarged or extended 
 by circumstances aifecting him in a manner peculiar and 
 distinct from that in which other residents of the place are 
 affected, Neither the special emergencies of his own pri- 
 vate business, nor any misfortune which might befall him 
 in particular by which he would be prevented from respond- 
 ing to the notice as promptly as might be reasonably ex- 
 pected from other residents of the vicinity, could be urged 
 as an excuse for his delay so as to affect the question of the 
 reasonableness of the time of notice.'-^ Nor could the dis- 
 tance of his residence or place of business from the station, 
 dock or wharf where freight is discharged make any ma- 
 terial difference in this respect. The time in general re- 
 garded as reasonable would be such as might in reason and 
 justice be deemed sufficient for any resident of the \icinity 
 to come for the goods with the usual appliances for cartage 
 or drayage to be had under ordinary circumstances.^ To 
 enter into a nice computation of the exact distance between 
 the owner's or consignee's residence and the station or 
 
 1 Gibson u Culver, 17 Wend., 305; Ostrandcr r. Brown, 15 Johns., 89; 
 Loveland V. Burk, 120 Mass,, 139; Van Santvoord v. St. John, 6 Hill, 
 157; Farmers', etc., Bank v. Champlain Trans. Co., 16 Vt., 52; Dixon v. 
 Dunham, 14 111., 324; Shade v. Payne, 14 La. An., 453. 
 
 2 Moses V. B. & M. R. R., 32 N. H., 532, 541. 
 
 3 Hedges v. The Railroad, 49 N. Y., 223.
 
 334: NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 ■wharf where the goods are to be delivered, in every instance, 
 and to inquire narrowly into the time required to travel 
 over such distance, could result in nothing but confusion. 
 The vague generality of the rule can only be reduced to cer- 
 tainty and uniformity by a hne of decisions such as have 
 sufficed under the law merchant to settle definitely the 
 period within which notice of the dishonor of commercial 
 paper must be given.^ 
 
 § 577a. Actual Notice — Opportunity to Remove Goods. 
 It is difficult to separate the question of notice from that of 
 the opportunity to remove the goods. The reason the con- 
 signee is entitled to notice is that he may have this oppor- 
 tunity. If he acquires a knowledge of the fact by other 
 means than a personal notice, he will not be heard to com- 
 plain that he was not notified. The notice being a substan- 
 tial rather than a technical right, it should be actual, if not 
 express. The publication of the arrival of the goods would 
 not take the place of notice, unless the published notice were 
 read by the consignee.- So where the notice is sent through 
 the postoffice, the carrier takes the risk of its being dehv- 
 ered.* The opportunity to remove the goods after notice 
 embraces other considerations than that of time, though this 
 is of importance, as we have seen.* The carrier's liability 
 does not cease until the goods have been placed in a position 
 to be handled by the consignee without uiu^easonable incon- 
 venience.^ The notice should be so tuned as to give the con- 
 signee an opportunity to remove the goods on a regular 
 business day.^ 
 
 1 See post, ch. X, pt. III. 
 
 2McKeon v. See, 4 Eob. (N. Y.), 449; Kohn v. Packard, 3 La., 225. 
 
 3 Solomon v. S. B. Co., 2 Daly (N. Y.), 104. 
 
 * Supra, %%5U, 577. 
 
 5 The Eddy, 5 WaU, 481; The Ben Adams, 2 Ben., 445. 
 
 •Russell Mfg. Ck). v. Steamboat Co.. 50 N. Y.. 121.
 
 LAJ!JDLOKD AND TENA2JT. 335 
 
 III. Landlord and Tenant. 
 
 § 578. Notice to Quit — Reciprocal Right. 
 
 579. Division of Subject. 
 
 580. Statutory Provisions. 
 
 581. Nature of Tenancy Requiring Notice. 
 
 582. From Year to Year. 
 
 583. Growing Out of Possession Under Contract. 
 
 584. Occupancy with Owner's Consent. 
 
 585. Holding Over Term. 
 
 586. Lease Void Under Statute of Frauds. 
 
 587. Implied Agreement Sufla.cient. 
 
 588. Wlien Payment of Rent Not Essential. 
 
 589. Possession by Mortgagor After Forfeiture. 
 
 590. General Tenancy at Will. 
 
 591. Termination of Strict Tenancy at Will. 
 
 592. Mere Occupant Not Entitled to Notice. 
 
 593. Contract to Purchase After Original Trespass WiU Not Entitle to 
 
 Notice. 
 
 594. Ti-espasser Negotiating for Lease Not Entitled to Notice. 
 
 595. Bailiff or Servant of Owner Not Entitled to Notice. 
 
 596. Tenancy Not Created by Holding Over Term. 
 
 597. Tenant for Life of Another Not Entitled to Notice. 
 
 598. Contesting Landlord's Title Not Entitled to Notice. 
 
 599. Grantee of Mortgagor Not Entitled to Notice. 
 
 600. Tenancy at Will or by Sufferance. 
 
 601. Payment of Rent Without Tenancy. 
 
 602. Owner of Premises May Elect. 
 
 603. Holding Over Under Agreement for New Lease. 
 
 604. Proof of Tenancy from Year to Year. 
 
 605. Burthens and Benefits Equally Divided. 
 
 606. Increase of Rate. 
 
 607. Time of Notice. 
 
 608. Time Regulated by Statute. 
 
 609. Notice Must Expire at Commencement of New Term. 
 
 610. Tenancy by the Quarter. 
 
 611. Tenant from Month to Month. 
 
 612. Princii^al and Accessorial Subject of Demise. 
 
 613. The Different Bands of Uncertain Tenancies. 
 
 614. Circumstances by Which it May be Determmed. 
 
 615. By Whom Notice Given. 
 
 616. Joint Lessees or Lessors. 
 
 617. Partners. 
 
 618. One Giving Notice as Agent of Co-tenant. 
 
 619. Agent Must Have Authority at the Time.
 
 336 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 620. Agency Must Extend to the Duty Undertaken. 
 
 621. Wlaen Authority Inferred. 
 
 622. Notice by Corporation. 
 
 623. By Receiver. 
 634. When by Tenant. 
 
 625. Wlien by Landlord 
 
 626. To ^Vhom Given. 
 
 627. Joint Tenants — Tenants in Common — Partners. 
 
 628. Notice to Corporation. 
 
 629. Form and Sufficiency. 
 
 630. Address of Written Notice. 
 
 631. What Notice to Contain. 
 
 633. Statement of Cause Eequired. 
 
 633. Time Mentioned in General Terms. 
 
 634. Tenant from Week to Week. 
 
 635. Must Not Demand Possession " Forthwith." 
 
 636. Undue Strictness Not Requhed. 
 
 637. Description. 
 
 638. Substantial Accuracy Alone Required. 
 
 639. lUusti-ation of Sufficient Cei-tainty. 
 
 640. Service of Notice. 
 
 641. May be Waived. 
 
 642. Voluntary SiuTender. 
 
 643. Parol Surrender and Acceptance. 
 
 644. Offering to Let Not Waiver. 
 
 645. Parol Surrender Must Go Into Immediate Effect. 
 
 646. Verbal License to Surrender Tenancy from Year* to Year Inop- 
 
 erative. 
 
 647. Defects in Notice May be Waived. 
 
 648. Waiver of Rights Under Notice. 
 
 649. WiU Not be Presumed from Acceptance of Rent by Unauthorized 
 
 Person. 
 
 650. Mere Permission to Remain After Notice No Waiver. 
 
 § 578. Notice to Quit — Reciprocal Eight. — One of the 
 
 most familiar modes by which the relation of landlord and 
 tenant may be severed is by a notice, from one to the other, 
 of an intention to terminate the tenancy. This is what is 
 known as a notice to quit; and where the circumstances and 
 relations of the parties render such notice necessary, it be- 
 comes a reciprocal right, or the correlative duty of either 
 party, as he may desire to perpetuate the relation, or seek to 
 terminate it. Neither the landlord nor the tenant can be
 
 LANDLOED AND TENANT. 337 
 
 summaril}^ deprived of his rights under the tenancy without 
 due notice.^ 
 
 §579. Division of Subject. — The order in which the 
 several branches of the subject will be here presented is as 
 follows: 1. "What cases of tenancy render such notice nec- 
 essary in order to terminate them, tind what kinds of ten- 
 ancy may be terminated without notice. 2. The time of 
 giWng notice to quit. 3. By wdiom given. 4. To whom 
 given. 5. Its form and sufficiency. 6. The manner and 
 mode of service. T. Waiver and excuse. 
 
 § 580. Statutory Provisions. — The character of the ten- 
 ancy entitling either the landlord or the tenant to insist 
 upon the ^continuance of the relation, until terminated by 
 notice from the other party, is, to a very great extent, 
 affected by local legislation. It is not intended here to fol- 
 low closely the capricious changes and modifications of the 
 common law, for the purpose of shovring with particularity 
 the kinds of tenancy requiring notice in each state. It will 
 be sufficient to point out the common law rule, and its appli- 
 cation to particular cases, and to set out the principles of a 
 general nature applicable alike to tenancies at common law 
 and under local statutes. 
 
 § 581 . Nature of Tenancy Requirini* Notice. — The cases 
 in which notice is required can be included in no general 
 description better than what would be understood by ten- 
 ancies of iincertain duration. The most common example 
 being a tenancy from year to year, to be renewed or termi- 
 nated at the option of either party, with the end of any year. 
 The reason given for the rule requiring notice in order to 
 terminate such a tenancy is, tliat it would be contrary to the 
 contract to turn the tenant out in the middle of the year, 
 and so, if he be allowed to hold over, it may fairly be in- 
 ferred, from the landlord's acquiescence, that he intends to 
 contmue the lease for another year.^ 
 
 iHaU V. Wadsworth, 28 Vt., 410; Barlow v. Wainrlght, 23 Vt., 88. 
 2 Logan V. Herron, 8 Serg. & R, 459; Bedford v. IMcElheiron, 2 id., 
 49; Doe v. Stennett, 2 Esp., 716: Moshier v. Reding, 12 Me., 478; Den v. 
 22
 
 338 KOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 §582. From Year to Tear. — And so, where premises 
 were leased for the term of one year, and an indefinite 
 period thereafter, at a fixed annual rent, and under this lease 
 the tenant entered and occupied, this was a tenancy from 
 3^ear to year ; and the tenant dying, his interest in the realty 
 passed as a chattel to his personal representatives, who 
 thereby became tenants from year to year, and hable, as 
 such, to the payment of the yearly rent until they dis- 
 charged themselves from the obligation by giving notice of 
 their intention to terminate such tenancy.^ 
 
 § 583. Growing Out of Possession Under Contract. — 
 So, also, where one comes into possession under a contract 
 for a leas 3, or a contract to purchase, and there is subse- 
 quent paj^nent of rent, this "will be held sufiicient to create 
 a tenancy from year to year, which can onh'- be terminated 
 by notice.- And in one case, w^here the party entering un- 
 der such a contract of purchase had not paid rent, he was 
 held to be a tenant from year to year, and entitled to notice 
 to quit before he could be ejected.^ There, however, the 
 situation of the parties with reference to the pro])erty was 
 exceptional. The covenantor, who forcibly dispossessed the 
 covenantee for non-payment of the purchase money, was 
 unable to show title in himself, but claimed that the pur- 
 chaser was estopped from denying his ownership upon the 
 famiUar ground that the tenant would not be heard to dis- 
 pute his landlord's title.^ After thus assuming the position 
 of landlord for his own advantage, he could not be heard 
 to deny the relation between himself and tenant, for the 
 
 Adams, 12 N. J. (Law), 99; Doe v. Watts, 7 D. «& E., 83; Cobb v. Stokes, 
 8 East, 358; Grant v. White, 42 Mo., 285; 4 Kent's Com., 111-114. 
 
 1 Pugsley V. Aiken, 11 N. Y., 494. 
 
 2 And so held -where the payment of rent was by the month, but the 
 former tenancy was by the year, though the administrator, whose con- 
 trol ceased at the end of the year, promised that thereafter the tenancy 
 should be from month to month. The contract extended beyond the 
 duration of his authority. Burbank v. Dyer, 54 Ind,, 239. 
 
 sMoshier v. Reding, 12 Me., 478, 
 
 i See Taylor on Landlord and Tenant, § 629.
 
 LAXDLOED AIST) TENANT. 339 
 
 reason that the latter entered under a contract of purchase, 
 instead of a lease. 
 
 § 584. Occupancy witli Owner's Consent. — There seems 
 no doubt that any sort of occupanc}^ of the premises, with 
 the consent of the owner, where the latter, by his acts, or 
 even by silent acquiescence, recognizes the occupancy as 
 held under himself, for a period of uncertain duration, ex- 
 cept in certain cases of tenancy at will or by sufferance, to 
 be noticed hereafter, would create between the parties the 
 relation of landlord and tenant, and entitle each to notice 
 of its determination. 
 
 § 585. Holding Over Term. — Where the tenancy to be 
 terminated by notice arises by the tenant's holding over 
 after the expiration of the original term, there is the same 
 reason for the rule as to notice to quit, whether the original 
 term be for one year or a shorter period. If a tenancy 
 under lease for one year be convertible into a tenancy from 
 year to year, by the continuance of the tenant's occupancy 
 after the expiration of his term, with the implied consent of 
 the landlord, by the same rule, a tenant for one quarter, or 
 one month, will, in case of holding over, be regarded, for 
 the purposes of notice, as a tenant from quarter to quarter, 
 or from month to month, as the case may be.^ But this 
 character of occupancy is generally regulated by statute, 
 according to the nature and situation of the property held. 
 "Where the property is used only for agricultural purposes, 
 requiring a yearly letting in order to render it available for 
 the tenant's use, and the duration of such tenancy is ren- 
 dered uncertain by the expiration of the original term and 
 the continued occupancy of the premises, the subsequent 
 holding is regarded as under an implied agreement run- 
 ning from year to year. "Where, however, the premises 
 are situated in a city or village, in the absence of such a 
 lease as the statute prescribes, or such express terms as may 
 
 iBlumenburg v. Myres, 32 Cal., 93, 96; Wilkinson v. Hall, 3 Bing. 
 (New Cases), 508, 530.
 
 340 NOTICK BY WHICH LIABILITIES EXTINGUISHED. 
 
 be necessary to limit the duration of the tenancy to a spe- 
 cific period, it is treated as running for a shorter term, in 
 general from month to month.' 
 
 § 580. Lease Yoid Under Statute of Frauds. — A tenant 
 holding under a lease void under the statute of frauds, may, 
 for the purposes of notice, be regarded as a tenant from 
 year to year. Thus, where a parol lease of land was made 
 for a term of years, at a stated rent, although by the statute 
 declared to be a tenancy at will, its terms would regulate 
 the rent to be paid, and the time of year when the tenant 
 is to quit the possession of the premises, and before the 
 landlord can maintain ejectment or other proceeding to 
 regain possession he will be required to ^ive notice to quit.- 
 §587. Implied Agreement Sufficient. — It is not essen- 
 tial, in order to estabhsh the relation of landlord and ten- 
 ant, so as to require notice to terminate it, that possession 
 of the premises should be taken under a positive agreement 
 of any sort. A subsequent payment of rent will be suffi- 
 cient to create such a tenancy as to property occupied by a 
 tenant for years beyond the boundaries of the land included 
 in his lease.^ 
 
 § 5'88. When Payment of Rent Not Essential.— But the 
 payment of rent, in the absence of an express agreement, 
 has not always been regarded by the courts as essential to 
 the creation of a tenancy from year to year. Thus, where 
 it appeared that the tenant had taken possession of the 
 premises with the consent of the owner, who died during 
 such occupancy, and the tenant, while in possession, made 
 improvements, but paid no rent, nor was any reserved by 
 
 iSprague v. Quinn, 108 Mass., 553; Prindle v. Anderson, 19 Wend., 
 391 ; Coffin v. Lunt, 2 Pick., 70; Ellis v. Paige, id., 71, note. 
 
 2Tliurber v. Dwyer, 10 R. I., 355; Barlow v. Waiuright, 22 Vt., 88; 
 Silsby V. Allen, 43 Vt., 172 ; Gleason v. Gleason, 8 Cush., 32 ; Doe v. Bell, 
 5 T. R,, 471; Clayton v. Blakey, 8 T. R., 3; Schuyler v. Leggett, 2 Cow., 
 660. And so where the tenancy is under a lease void as being made by 
 an agent in his own name. Murray v. Armstrong, 11 Mo., 209. 
 
 3 Jackson v. Wilsey, 9 Johns., 267.
 
 LAKDLOED AND TENANT. 341 
 
 the landlord in his life-time, it was held that the tenant 
 could not be summarily dispossessed without notice.' 
 
 § 589. Possession by Mortgagor After Forfeiture.— So 
 where there is a common law mortgage of the premises, 
 and the mortgagor is permitted by the mortgagee to remain 
 in possession without any express agreement as to the term 
 for which he shall occupy, except as fixed by the maturity 
 of the obligation thereb}'" secured, the mortgagor has been 
 regarded by high authority as in possession under such an 
 implied agreement as to entitle him to be considered as a 
 general tenant at will, and, as such, entitled to notice to 
 quit.^ 
 
 § 590. General Tenancy at Will. — The relation upon 
 which the right to notice depends is recognized as existing 
 between the landlord and tenant, where there is a general 
 tenancy at will, as distinguished from a strict tenancy at will. 
 The former species is that which grows out of the tenant's 
 holding over after the expiration of the original term;' 
 an entry with the consent of the landlord and a lease ren- 
 dered void by the statute of frauds ; * the occupancy of the 
 premises for an indefinite period, under a contract, express 
 or implied, to pay rent ; ^ and even where the land is occu- 
 pied and improved by the tenant under an implied agree- 
 ment with the landlord, from year to year, without the 
 special reservation of rent.* 
 
 1 Den V. Mackay, 3 N. J. (Law), 419; Jackson v. Laugliliead, 2 Johns., 
 75, where it is laid down generally that " no person who holds land by 
 another's consent, for an indefinite period, ought ever to be evicted by 
 ejectment at the suit of such party, without previous notice to quit." 
 See, also, Jackson v. Bryan, 1 Johns., 322; Jackson v. Green, 4 Johns., 
 186; Jackson v. Niven, 10 Johns., 335; Bedford v. McElherron, 2 Serg. 
 & E., 49. 
 
 2 Jackson V. Hopkins, 18 Johns., 487. 
 
 3 Supra, % 585. 
 *S«i)ra, §586. 
 sSttpm, §§588, 587. 
 6 Supra, § 588.
 
 34:2 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 591 . Teriiiination of Strict Tenancy at Will. — Where 
 a tenancy at will is terminated by notice from the landlord, 
 it may operate as the inception of a tenancy of a different 
 character. Thus where a tenant strictly at will received 
 three months' notice to quit, and held over under an implied 
 agreement for rent, this was held to create a tenancy from 
 year to year, commencing with the date of the notice, and 
 requiring six months' notice prior to the end of the first 
 year thereafter to entitle the landlord to maintain an action 
 for the possession.^ 
 
 § 592. Mere Occupant Not Entitled to Notice. — Where 
 the relation of landlord and tenant does not exist between 
 the owner of the fee and the occupant of the premises, there 
 is no necessity for notice from either party. This relation 
 being one arising by contract, express or imphed, cannot 
 be forced upon either party against his will. So where one 
 is a mere trespasser upon the land of another, he is not 
 entitled to notice to quit.^ Nor is notice necessary where 
 the term is fixed.' 
 
 § 593. Contract to Purchase After Original Trespass 
 Will Not Entitle to Notice. — For reasons somewhat dif- 
 ferent, one who obtains possession of the lands of another, 
 and the original trespass is practically condoned by the 
 owner of the fee, who enters into a treaty with the occu- 
 pant to convey the land, and it is subsequently held by the 
 occupant under such contract of purchase, this will not 
 create the relation of landlord and tenant.* There being 
 no express promise to pay rent, it could only be claimed 
 upon the ground that the use and occupation raised an im- 
 plied promise to that effect. But where there is an express 
 agreement proven as the foundation of the occupancy, there 
 can be no different promise implied by law. An express 
 
 1 Bradley v. Covel, 4 Cow., 349. 
 
 2 Taylor on Land, and Ten., § 468. 
 s Young V. Smith, 28 Mo., 65. 
 
 * Jackson v. French, 3 Wend., 337.
 
 LA2TDL0RD AND TENANT. 343 
 
 contract of purchase being sufficient upon which to predi- 
 cate the occupancy by the covenantee, he enters and holds, 
 not as a tenant, but as a qiiasi owner.^ 
 
 § 594. Trespasser Negotiating for Lease Not Entitled 
 to Notice. — Upon similar grounds to the above, where one 
 obtained possession of a house without the privity or con- 
 sent of the owner, and afterwards entered into negotiations 
 for a lease, but the parties failing to agree, the negotiations 
 never ripened into a contract, it was properly held that this 
 did not establish between the parties the relation of landlord 
 and tenant, and that the latter might be dispossessed with- 
 out antecedent notice to quit.- 
 
 § 595. Bailiff or Servant of Owner Not Entitled to 
 Notice. — Mere possession with the consent of the owner 
 does not create this relation, even when such possession is 
 under no express contract of purchase. The occupant may 
 hold the possession as the servant or bailijff of the tenant in 
 fee. As, in the case of Jackson v. Sample,' where the land 
 had been occupied for some twenty 3^ears under a written 
 agreement by the occupant to " hold, keep and preserve the 
 possession," etc., of the land in question " to and for " the 
 owner and his heirs, it was held that such occupancy would 
 not raise any implication of such a contract as would entitle 
 the occupant to notice from the owner to quit the posses- 
 sion.^ 
 
 § 596. Tenancy Not Created by Holding Over Term. — 
 Holding over after the expiration of the term originally 
 
 iHaxris v. Frink, 2 Laus. (N. Y.), 35; Tucker v. Adams, 53 Ala., 254; 
 Carpenter v. United States, 17 Wall., 489; S. C, 6 Ct. CI., 156; Doe v. 
 Baker, 2 Dev., 270; Smith v. Stewart, 6 Johius., 46; Jackson v. Moncrief, 
 5 Wend., 26; Doe v. Sayer, 3 Camp., 8; Glasscock r. Robards, 14 Mo., 
 350. But see Jackson v. Rowan, 9 Johns. , 330, where it is held that one 
 entering under a contract of pvirchase cannot be treated as a wrong-doer 
 and ejected without notice or demand ; also Right v. Beard, 13 East, 
 210; Twyman v. Hawley, 24 Gratt., 512. 
 
 2 Doe V. Quigley, 2 Camp., 505; Grant v. White, 43 Mo., 285. 
 
 3 1 Johns. Cas., 231. 
 
 <Doe V. Watts, 7 D. & E., 83; Cobb v. Stokes, 8 East, 358; Jackson v. 
 Parkhurst, 5 Jobn.«., 128; Williams v. Deriar, 31 Mo., 13.
 
 344 NOTICE BY wnicn liabilities extinguished. 
 
 fixed b}^ contract does not in every instance create such a 
 general tenancy as will entitle the occupant to notice to quit. 
 Thus, where the original term is for one year, notice not 
 being required to terminate the tenancy, it comes to an end 
 with the expiration of the year, and primarily the tenant, 
 by continuing in possession, becomes a wrong-doer, and may 
 be summarily dispossessed. In order to give such tenant 
 the status of a rightful occupant pf the premises, there must 
 be a subsequent payment of rent or other recognition of 
 such tenancy by the landlord. The tenant cannot, by sheer 
 force of his own obstinacy in refusing to surrender at the 
 expiration of the term, enlarge the character of his tenancy.^ 
 And even where the tenant had held over for two years, 
 during which time the owner remained silent, this was held 
 insufficient to raise the presumption of his consent to such 
 holding over on the terms of the original lease.^ 
 
 § 597. Teuaiit for Life of Another Not Entitled to No- 
 tice. — Under a statute by which a tenant at sufferance was 
 entitled to one month's notice to quit, it was held that a 
 tenant for the hfe of another, holding over after the death 
 of cestui que vie, was not entitled to any notice whatsoever, 
 but might be ejected as a trespasser." 
 
 § 598. Contesting Landlord's Title Not Entitled to No- 
 tice. — So a tenant who undertakes to defeat his landlord's 
 title by attornment to a stranger, or, while in possession, 
 accepts a convej^ance in. fee from one who claims adversely 
 to the party under whom such tenant holds, is not entitled to 
 notice, but may be dispossessed upon demand and refusal 
 to surrender as any other wrong-doer.* 
 
 § 599. Grantee of Mortgagor Not Entitled to Notice. — 
 
 We have seen that, as between the mortgagor and the mort- 
 
 ' gagee, the former is, when in possession, in the absence of 
 
 express stipulations to that effect, such a tenant at will as 
 
 1 Allen V. Jaquish, 21 Wend., 638; Rowan v. Lytle, 11 Wend., 616. 
 
 2 Den v. Adams, 12 N. J. (Law), 99; Smith v. Littlefield, 51 N. Y., 539. 
 
 3 Livingston v. Tanner, 14 N. Y., 64. 
 
 *Sharpe v. KeUey, 5 Den., 431; Clarke v. Crego, 47 Bai'ber (N. Y.), 599.
 
 LANDLORD AND TENANT. 345 
 
 to be entitled to notice to quit.' But where the mortgagor, 
 in possession under such implied tenancy at A\all, makes an 
 absolute conveyance to another, his grantee does not suc- 
 ceed to his rights with respect to notice.^ The reason given 
 by the learned judge who rendered the ojMnion in this case, 
 for this distinction, was that " the sale itself is an act of dis- 
 loyalty." There must be a privity of estate between the 
 owner and the occupant to entitle the former to notice, 
 which is wholly wanting where he comes in by purchase 
 from the mortgagor, who himself was at most a tenant at 
 ^viU.3 
 
 § 600. Tenancy at Will or by Sufferance. — For similar 
 reasons the same rule applies to a tenant from year to j^ear 
 coming in under the mortgagor after the date of the mort- 
 gage. He is a tenant at will in the strictest sense, or a 
 mere tenant by sufferance. He cannot be said to hold 
 under the mortgagee unless the latter recognizes his posses- 
 sion in the most unequivocal manner, as by acceptance of 
 rent, or some similar act equally significant in its import, 
 by which it may be inferred that there is an acceptance of 
 the tenant in lieu of the morto^ao-or.* 
 
 §601. Payment of Rent without Tenancy. — As we 
 have seen, the rule generally recognized with reference to a 
 tenant holding over after the expiration of his term is that, 
 if such holding is with the consent, express or implied, of 
 his landlord, it creates a general tenanc}^ at will, which can 
 only be terminated by notice ; ^ and that the subsequent pay- 
 ment of rent furnishes the strongest evidence of an implied 
 agreement between the parties, in the absence of proof of 
 an express stipulation.^ But exceptional cases have arisen, 
 
 1 Siqyra, § 589. 
 
 2 Jackson v. Hopkins, 18 Johns., 487. 
 ^ Jackson ■?;, Stackhouse, 1 Cow., 122. 
 
 4 Thunder v. Belcher, 3 East, 449; Denn v. Rawlins, 10 East, 261; 
 Rockwell V. Bradley, 2 Conn., 1; Den v. Bennett, 4 Ii-ed. (N. C), 123. 
 
 5 Supra, § 585 et seq, 
 « Supra, § 587.
 
 346 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 where the occupant of the premises has been permitted to 
 remain in possession with the consent of the owner, and on 
 payment of rent, without creating such a tenancy at will as 
 to require notice to terminate it. Thus, where a servant 
 was occupying the master's house, and, upon a termination 
 of his service, was permitted to continue in possession until 
 the condition of his wife's health was such as to admit of 
 her safe removal, this was j-egarded as a mere license, 
 depending upon a future contingent event, and did not cre- 
 ate the relation of tenant, either at will or by sufferance, 
 and notice to quit was held unnecessary.^ 
 
 § 602. Owner of Premises May Elect. — Where the ten- 
 ant holds over his term, and before the landlord has done 
 anj^thing by which he would be estopped either from assert- 
 ing or denying the tenancy at will, it is optional with him 
 whether the relation of landlord and tenant shall be con- 
 tinued between them. He may have extended the privilege 
 of remaining in possession as a mere license, depending for 
 its duration upon a contingent future event.- Or he may 
 have received rent, or done some other act equally express- 
 ive of his assent to the continuation of the tenancy, in either 
 of which events he will have parted with his option in the 
 matter for the time being. But when the end of the term 
 is reached, and nothing is said or done by the landlord, the 
 tenant, by remaining in possession, has thereby given expres- 
 sion to his intentions respecting the tenancy, and it remains 
 for the landlord to elect to hold him for a new term, or 
 eject him as a trespasser.^ And this option is not affected 
 by the tenant's refusal to accept a new lease, or otherwise 
 expressing his dissent, subsequent to the expiration of his 
 term.* 
 
 § 603. Holding Over Under Agreement for New Lease. 
 "Where a tenant remains in possession under an agreement 
 
 1 Doyle V. Gibbs, 6 Lans. (N. Y.), 180. 
 
 2 Supra, % 601. 
 
 3 Noel V. McCoory, 7 Coldw., 623. 
 
 4 Schuyler v. Smith, 51 N. Y., 309.
 
 LANDLORD AND TEXAJfT. 347 
 
 with the landlord for a new lease, whether such agreement 
 be express or impHed, at the yearly, quarterly, or monthly 
 rate of his original term, not only does this create a ten- 
 ancy at will of the character requiring notice to quit, but 
 the character of such tenancy will not be changed by the 
 landlord's failure to carry out an agreement to make repairs. 
 It will continue an estate at will until such lease is exe- 
 cuted.^ 
 
 § 604. Proof of Tenancy from Tear to Tear.— When 
 the agreement between the parties for a continuation of the 
 relation of landlord and tenant for an indefinite period is 
 by express stipulation, it is proved as any other contract. 
 When it rests altogether on inference, whether there is an 
 implied contract of letting is a question of fact for the jury.^ 
 
 § 605. Burthens and Benefits Equally Divided.— That 
 featm'e of the law which gives the landlord his election to 
 hold as a tenant at will one who holds over his term, or to 
 treat him as a trespasser, seems at a glance to give the land- 
 lord an undue advantage. It enables him to increase the 
 yearly rent over that of the expired term, as a condition of 
 his assent to the continuance of the tenancy, without giving 
 the tenant the corresponding advantage of insisting upon 
 a reduction of the rate as a condition of the renewal of his 
 tenancy. But it must be remembered that the holding over 
 is the voluntary act of the tenant. It will be seen, when we 
 come to consider the time of giving notice^ that witli respect 
 to the termination of uncertain tenancies, the rights and 
 duties are divided between landlord and tenant with toler- 
 able impartiahty. 
 
 § 606. Increase of Rate. — When there is a tenancy at 
 wiU, from whatever cause it has arisen, as it is necessary to 
 give notice to quit for a certain time, depending upon the 
 length of the original term, it would seem to be equally 
 requisite to give notice, for the same time, of an intention 
 to demand an increase of rent, and, by a parity of reason- 
 
 1 Emmons v. Scudcler, 115 Mass., 367. 
 2Chamberlin v. Donahue, 44 Vt., 57.
 
 348 NOTICE BY "WHICH LIABILITIES EXTINGUISHED. 
 
 ino-, for the tenant to give notice for the same time of an 
 intention to demand a reduction; for, although the tenant 
 holding for a term may, by silently holding over, be bound 
 to pay an increased rent, of which he has received notice a 
 short time before the expiration of his term,i the case would 
 necessarily be different with a tenant whose tenancy can 
 only be terminated b}^ notice. In the latter case his con- 
 tinued occupancy could not be interpreted as an assent to 
 the demand of the landlord for the higher rate. 
 
 § ()07. Time of Notice. — The length of time for which 
 notice must be given, in order to terminate a general ten- 
 ancy at wiU, depends upon the character of the tenancy, 
 whether from year to year or for shorter periods with indefi- 
 nite renewals.^ At common law, where the tenancy is from 
 year to year, the notice is required to be for six months ; ^ 
 and by " six months " is meant six calendar months, or half 
 a year.* 
 
 § r>08. Time Regulated by Statute.— But even where 
 statutory provisions have not interposed to fix a different 
 time, the six months' rule, in respect to tenancies from year 
 to year, has not been universally adopted in this country by 
 the courts of the different states.^ Added to this conflict of 
 authority as to the common law rule, there is a great diver- 
 sity in local statutes varying the times for which notice 
 must be given, from three months to fourteen daj's, which 
 statutes are subject to annual or biennial alteration. 
 
 § 609. Notice Must Expire at Commencement of New 
 Term. — But the question of time relates to other consider- 
 ations, in connection with the notice to quit, than that of the 
 number of days or months elapsing between the giving of 
 the notice and the time therein fixed for the vacation of the 
 
 *Hunt V. Bailey, 39 Mo., 237; Adriance v. Hafkemeyer, id., 134. 
 2 Coffin V. Lunt, 2 Pick., 70; Ellis v. Page, id., 71 (note); Doe v. Scott, 
 6 Bing., 363; Kemp v. Derrett, 3 Camp., 510. 
 'Right V. Darby, 1 T. R., 159. 
 
 *Doe V. Porter, 3 T. R., 13; Den v. Mcintosh, 4 Ired., 291. 
 5 Rising V. Stannard, 17 Mass., 382; Logan v. Herron, 8 S. & R, 459.
 
 LA^TDLOED AXD TENANT. 349 
 
 premises. It has reference to the date of giving the notice, 
 and the intervening time between that and the end of the 
 year, or other period of holding within which the notice is 
 given. In this respect, the rule as to time is more uniform. 
 It is not sufficient, where six or any other number of months' 
 notice is required, that it is given at any time, and to expire 
 upon any day which happens to suit the convenience of the 
 party giving it. The notice to quit at the end of six months 
 gives the tenant the right to occupy the premises for that 
 time ; and if the expiration of the notice is not until the 
 anniversary of the commencement of the tenancy, the notice 
 will be ineffectual.^ 
 
 § <J10. Teuaiicy by the Quarter. — So, where the tenancy 
 was from three months to three months, it was held that 
 the notice should be for three months ending at the close of 
 any quarter, reckoning from the date of entry. It was not 
 sufficient that notice to quit at the end of three months 
 from the date of the notice was given, but the three months 
 must intervene between the date of the notice and the end 
 of the quarter.- 
 
 § 611. Tenant from Month to Month. — So, also, where 
 a party entered under an agreement to accept a lease for 
 twenty months and subsequently refused to accept the 
 lease, he was held to be a tenant at sufferance, and on the 
 payment of a month's rent subsequent to his entry, he be- 
 came a tenant from month to month, commencing from the 
 date of his entry ; and to dispossess him, the landlord was 
 required to show one month's notice at the end of some 
 month, reckoning from the date of entry.'' And the same 
 rule is applicable to a tenancy from week to week.-* 
 
 iDoe V. IMUler, 2 Car. & P., 348; Bay State Bank v. Kiley, 14 Gray, 
 492; Hultain v. Munigle, 6 Allen, 220; Doe v. Lea, 11 East, 312. 
 
 2 Kemp V. Derrett, 3 Camp., 510. 
 
 3 Anderson v. Prindle, 23 Wend., 616; Doe v. Hazell, 1 Esp., 94; 
 Pricket -y. Ritter, 16 lU., 96; Gunn v. Sinclair, 52 Mo., 327. It is held 
 in some cases, where the rent is payable monthly in advance, that notice 
 may be given on the first of the month, and is to expire on the first of 
 the month next ensuing. Walker v. Sharpe, 14 Allen, 43. 
 
 < Doe V. Scott, 6 Ring., 363.
 
 350 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 612. Principal and Accessorial Sul)ject of Demise. — 
 
 The time of giving the notice is occasionally involved in un- 
 certaint\" arising from circumstances that cast doubt upon 
 the actual date of entry. A party may have leased the prem- 
 ises with the right of entry upon a portion at one time and 
 the right to enter another portion at another time. In such 
 an event, to ascertain the date of commencement of the 
 occupancy, the question to be determined is, which of these 
 two portions of the property was the j)rincipal or substan- 
 tial, and which the accessorial, subject of demise. This has 
 been held to be a question of fact.^ However, where the 
 facts ascertained were that the tenant's entry upon all that 
 portion of the premises except the land intended for tillage 
 was on a day named in the lease, but he was allowed to 
 enter the tillage land on an earlier day in order to plow, it 
 was concluded, as a matter of law, that his tenancy com- 
 menced with his subsequent entry and occupation of the 
 house and other buildings, and not from his prior entry for 
 the mere purpose of plowing the tillage land.- 
 
 § 613. The Different Kinds of Uncertain Tenancies. — 
 Although there is considerable unanimity among authorities 
 as to the time when notice to quit must be given, and when 
 it should expire, in cases where the character of the tenancy 
 is regarded as the same, still there seems to be some contra- 
 riety of view as to the kind of tenancy created by a partic- 
 ular kind of holding ; that is, whether it be from year to 
 year, from quarter to quarter, or from month to month. 
 The reasonable rule is laid down in Anderson v. Prindle,' 
 that where one entered under a parol contract to lease for 
 a term of one year and eight months, and remained in pos- 
 session, paying rent Jy the month, without such lease, this 
 created a tenancy from month to month. The effect which 
 is here given to time of payment of rent is denied in a case 
 decided in Missouri.* Here the entry was under a parol 
 
 iDoe V. Howard, 11 East, 498. 
 
 2 Doe V. Spence, 6 East, 120; Doe v. Watkins, 7 East, 551. 
 
 3 23 Wend., 616. 
 
 < Scully V. Murray, 34 Mo., 420.
 
 LA>JDLOED AND TENANT. 351 
 
 lease for years, admitted to be void under the statute of 
 frauds, and a payment of rent by the month ; it was never- 
 theless held to be a tenancy from year to year. In the 
 opinion in this case, an earlier case by the same court is 
 cited with approval, but there nothing is disclosed as to the 
 times of paying rent.^ It is held, however, in Ridgely v. 
 Stillwell,^ where the tenant entered and paid rent by the 
 month, without either a written or parol lease, or contract 
 for a lease for anj^ term whatsoever, that this was construct- 
 ively a tenancy from year to year. In rendering the opinion 
 the learned judge says: "So, a tenancy from month to 
 month, or for any aliquot part of a year, may be created 
 by express contract, or perhaps be implied from circum- 
 stances ; but the circumstance that rent is payable monthly, 
 or quarterly, or yearly, or half-j^early, does not show that 
 the holding is not yearly. In the absence of any other 
 proof, the legal presumption remains that the tenancy is a 
 yearly one." The question raised here seems to be one of 
 evidence, and it is decided that the mere payment of rent 
 by the month, in the absence of corroborative circumstances, 
 will not be suiRcient to prove a monthly tenancy. There 
 are, doubtless, other circumstances of a more convincing 
 character than the mere recurrence of rent da3\ Neverthe- 
 less, when the premises are held for a period of uncertain 
 duration, whether as the result of holding over the original 
 term, entry under a void lease, or under a parol contract for 
 a lease which is never executed, or by whatever manner 
 tenancies at will of this sort may be created, when there is 
 no stronger evidence of a tenancy from year to year, the 
 fact that the rent is paid monthly would be sufficient to 
 carry conviction to an ordinary mind that the holding was 
 from month to month. 
 
 § 614. Circumstances by Which it May be Deter- 
 mined. — But the countervailing circumstances by which the 
 periodical payment of rent, as evidence of the periods from 
 which the premises are rented, may be overcome, are seldom 
 
 iKerr v. Clark, 19 Mo., 132. 
 2 25 Mo., 570.
 
 352 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 wanting when the payment of the rent does not fairly ex- 
 press the will of the parties. The habits and customs of 
 the locality ; the general conduct of the parties, with refer- 
 ence to the property, and above all, the nature of the subject 
 of demise, and the manifest use for which it was intended, 
 would all have a bearing upon the question of the length of 
 the term for which the premises were occupied. It would 
 be difficult to believe that one would occupy a farm as ten- 
 ant from month to month, or for any term shorter than a 
 year, even though the rent were paid by the month or by 
 the quarter. Where to occupy the premises profitably or 
 comfortably it became necessary to make extensive improve- 
 ments, or to set up cumbersome and expensive machinery, 
 and the premises were let with a view to the making of all 
 necessary changes, the payment of rent b}'' the month would 
 hardly be sufficient evidence of a monthly tenancy. 
 
 § 615. By Whom Notice Giyeii. — It having been already 
 stated that the notice to quit may and should be given by 
 either landlord or tenant, in the event that a termination of 
 the tenancy is desired by either,^ it only remains to show, 
 with respect to the party from whom notice should come, 
 how circumstances may render a notice to quit valid, which 
 does not proceed directly from the one in whose behalf it is 
 given. The circumstances by which any other than direct 
 notice is authorized are chiefly such as grow out of the rela- 
 tions between parties as joint tenants, tenants in common, 
 copartners, or principal and agent. 
 
 § 616. Joint Lessees or Lessors. — As to the effect of 
 notice from one or two or more joint lessors or lessees, or 
 from any number less than all, upon the opposite party, there 
 is some conflict, but the weight of authority seems to be 
 that such notice must come, either directly or indirectly, 
 from all, in order to be binding upon the party notified, as 
 to the entire interest represented by the opposite parties.^ 
 
 1 Supra, § 578. 
 
 flight V. CutheU, 5 East, 491; Doe v. Chaplin, 3 Taunt., 120; Good- 
 title V. Woodward, 3 B. & Aid,, 689. Contra, Doe v. Summersett, 1 B. 
 & Ad.. 135.
 
 LAXDLOED A^T> TENANT. 353 
 
 Thus where a notice to quit was given by two of three joint 
 lessors, it was held insufficient to terminate the entire ten- 
 ancy, so as to enable the three lessors to join in summary 
 proceedings ; although it would be sufficient as to the in- 
 terests of those giving the notice.^ And tenants in common, 
 whether lessors or lessees, would possess no greater author- 
 ity with respect to the interests of each other than would 
 joint tenants. 
 
 § 617. Partners. — "Where, however, the joint lessors or 
 lessees are partners in trade, and the subject of the demise 
 is partnership property, they are placed upon a different 
 footing, in respect to their relative rights, from that occu- 
 pied by ordinary joint tenants or tenants in common. No- 
 tice, therefore, by one in the firm name would be sufficient 
 to bind the partners.^ The reason why it is so strongly in- 
 sisted that the notice must come from the party whose 
 rights are sought to be enforced thereby, is that the party 
 notified is entitled to a notice upon which he can act with 
 safety. 
 
 § 618. One Giving Notice as Agent of Co-tenant.— 
 But even when the co-tenants in whose names the notice is 
 given do not sustain towards each other the relation of 
 partners, notice from one will be sufficient, if given in the 
 name and by authority of his co-tenants.' Where a notice 
 is given by one joint tenant or tenant in common, for him- 
 self and co-tenants, it derives its force and validity, not by 
 reason of the co-tenancy, but from the special authority 
 conferred upon the acting party. He acts as the agent of 
 the others, and his exercise of authorit}'- will, in aU essential 
 respects, rest upon the general doctrine of agenc3^ 
 
 §619. Agent Must Have Authority at the Time.— 
 ISTevertheless, there is one essential difference between no- 
 tices to quit, given by an agent, and notices of a general 
 character communicated by the same means. In general, 
 
 1 Pickard v. Perley, 45 N. H., 188. 
 
 2 Doe V. Huline, 2 Mann. & Ry., 433. 
 'Taylor on Land, and Ten., § 479. 
 
 23
 
 354 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 "vvliere notice is given by one in the name of another, and 
 the pretended agent acts without authority previously con- 
 ferred, such acts may be rendered vaUd and binding by a 
 subsequent ratification of the assumed agency by the party 
 in whose behalf tlie notice was given.^ So far from this 
 being the prevalent doctrine respecting the kind of notices 
 under consideration, it is generally laid down that, as the 
 rights and duties of the party notified depend upon the 
 validity of the notice to quit, to be effectual for the purpose 
 of determining the tenancy, it must be given by one possess- 
 ing authorit}^ when he gives such notice, or whose act is 
 ratified by the principal at the proper time for giving it.- 
 If unauthorized when given, it depends upon subsequent rati- 
 fication for its life, and unless ratified a sufiicient time 
 before the period fixed for quitting, the party so notified 
 will not have the notice to which he is by law entitled. 
 
 § 620. Agency Must Extend to the Duty Undertaken. — 
 Where notice is given by one as agent of another, it is not 
 sufficient that there should be subsisting between them the 
 relation of principal and agent. The agency must extend 
 to the ])articular duty undertaken, or the notice will be as 
 ineffectual as though coming from any other intermeddler. 
 Thus, where an agent appointed merely for the purpose of 
 collecting rents undertakes to dispossess a tenant by notice 
 to quit, the latter is neither bound to recognize such notice, 
 nor can he safely take advantage thereof, in order to termi- 
 nate the tenancy.^ 
 
 § 621. When Authority Inferred. — When the one giv- 
 ing the notice has been clothed with authority to let the prem- 
 ises, and is depended upon by the owner to provide suitable 
 tenants, his authority to give notice to any particular tenant 
 to quit might reasonably be inferred. And when the tenant 
 
 1 See post, ch, IX, part III. 
 
 2 Doe V. Walters, 10 B. & C, 626; Pickard v. Perley, 45 N. H., 188; 
 Doe V. Goldwin, 1 G. & D., 463; Brahn v. Jersey City Forge Co., 38 N. 
 J. L., 74; 2>ost, ch. IX, part III. 
 
 3 Doe V. IVIizem, 3 Mood. & R., 56.
 
 LANDLORD AND TENANT. 355 
 
 is reiDresentecI by an agent whose duty it is to provide prem- 
 ises suitable for the purposes of his principal, the tenancy 
 may be terminated by notice from him, but notice from an 
 agent of an agent will not be recognized without the prin- 
 cipal's approval.^ 
 
 § G22. Notice by Corporation. — When the notice is given 
 on behalf of a corporation, it seems almost needless to say 
 that it should come from an officer of such corporation ; and 
 whether the giving of such notice falls within the scope of 
 his authority or not, the tenancy may be thereby terminated 
 if the act be approved in time by the corporation.- 
 
 § 623. By Receiver. — A receiver, appointed by a court 
 of chancery to take charge of real estate, with general 
 authority to let lands from year to year, does not act with 
 respect to the property committed to his charge in the ca- 
 pacity of an agent of the owner, but as an officer of the 
 court, and, under his general authority, may terminate the 
 tenancy by notice to quit, given in his official capacity.' 
 
 § 624. When by Tenant. — AVhere the notice is to the 
 landlord, it should come from his immediate tenant or his 
 tenant's assignee, between whom and himself there is some 
 privity of contract or estate. The notice could not prop- 
 erly come from the under-tenant to the landlord, though 
 his tenancy might be affected by notice passing between 
 the tenant under whom he holds, and the owner of the fee.* 
 
 § 625. When by Landlord. — Where the notice is from 
 the landlord, it must be given to his immediate tenant, or to 
 the assignee of such tenant, for the same reason expressed 
 in the next preceding section, in respect to notice from the 
 tenant to the landlord. And it is not important that the 
 tenant to be notified be in actual possession of the premises 
 at the time the notice is given. If he continues to pay the 
 
 1 Doe V. Robinson, 3 Bing. N. C, 677. 
 -Roe V. Pierce, 2 Camp., 96. 
 3 Doe V. Read, 13 East, 57. 
 
 * Pleasant v. Benson, 14 East, 234 ; Taylor on Landlord and Tenant, 
 §481.
 
 356 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 rent, notice should be given to hira, though the premises be 
 occupied by another.' 
 
 § 626. To Whom Given. — Although notice from the land- 
 lord should be given to the one recognized as his immediate 
 tenant, and not to one who is simply a sub-lessee or under- 
 tenant, from the mere fact that the latter is the only one in 
 actual possession of the premises, yet where the tenant who 
 originally entered under the landlord has abandoned, or 
 given up the possession, and another has entered and occu- 
 pies apparently in the same manner and to the same extent 
 as his predecessor, he may be treated by the landlord as as- 
 signee of the original tenant, and served with notice to quit.^ 
 "Where the tenant undertakes to put an end to the tenancy 
 by notice, it must be given to his immediate landlord, or the 
 one to whom he pays rent, or his agent. If it be an under- 
 tenant, his purpose will not be accomplished by giving no- 
 tice to the owner of the premises, or one under whom his 
 own landlord holds as tenant.' 
 
 §627. Joint Tenants — Tenants in Common — Part- 
 ners. — It has been laid down that where two or more are 
 in possession of the premises as joint tenants or tenants in 
 common, a notice addressed to all and served upon one 
 would raise a presumption that the notice reached his co- 
 tenants;^ and it has even been held that a verbal notice to 
 one of two joint tenants would suffice to terminate the ten- 
 ancy as to both.* But it is difficult to see why tenants in 
 common, or joint tenants, should be affected by notice given 
 to a co-tenant under circumstances where they would not be 
 affected either to their advantage or disadvantage by a 
 notice proceeding /"ro??! the same co-tenant, without their 
 authority.^ There can be no doubt, however, that where 
 
 1 Tucker v. Baker, 10 Johns., 270. 
 
 •-! Doe V. Williams, 6 B. & C, 41 ; Doe v. Murless, 6 M. & S., 110. 
 
 3 Taylor on Land, and Ten., § 481. 
 
 * Doe V. Watkins, 7 East, 551 ; Taylor on Land, and Ten., § 481. 
 
 5 Doe V. Crick, 5 Esp., 196. 
 
 6 See ante, § 616 et seq.
 
 LANDLOED AND TENANT. 357 
 
 the parties to be notified are jointly interested in the subject 
 of the demise, either as lessors or lessees, and are partners 
 with respect to the property, that notice to one would be 
 notice to all, especially where the notice was given ostensibly 
 to both or all of such partners. 
 
 § 628. Notice to Corporation. — A corporation, whether 
 as landlord or tenant, can only be reached with notice 
 through its authorized officers. But it might mislead to say 
 that the notice should be to the officer, though he is unques- 
 tionably the proper one to serve. There may be several 
 officers either of whom could accept service of the notice, 
 but the notice should be given to the corporation itself ; that 
 is, it should be addressed to the corporate body and not to 
 its official representative.' 
 
 § 629. Form and Sufficiency. — As to what is necessary 
 to constitute a notice sufficient in form, the requirements 
 of the common law are not very exacting. It may be verbal 
 or written,^ though in this respect there have been such stat- 
 utory changes of the law that now the notice is generally 
 required to be in writing.' 
 
 § 630. Address of Written Notice. — Much that has ref- 
 erence to the form and sufficiency of a notice to quit has 
 already been suggested in treating of the time of giving 
 notice, and hy ivhom and to whom it should be given. Where 
 the notice is, as is generally required, in writing, it should 
 of course be addressed to the party to be affected thereby, 
 and should be properly signed by the party giving it, or in 
 his name by his agent ; but slight and unimportant errors 
 or omissions in these respects will not destroy its effect. It 
 is of more importance that the notice should go to the right 
 party than that it should be properly addressed to him. 
 
 1 Ante, § 616 ct seq. ; Doe v. Woodman, 8 East, 228. 
 
 2 Doe V. Wrightman, 4 Esp., 5. 
 
 3 Parol notice of six months, to terminate a tenancy from year to year, 
 has been lield void, as in contravention of the statute of frauds. John- 
 stone V. Huddlestone, 4 B. & C, 923.
 
 358 NOTICE BY WHICH LIABILITIES EXTINGUISHED. 
 
 § 631. V*'hat Notice to Contain. — Whether the notice be 
 given under the provisions of a statute, or as required at 
 common law, it would not be sufficient should it fail to ex- 
 press with reasonable exactness the day on which the prem- 
 ises are required to be vacated; for although the law- 
 requires that notice shall be given, to go into effect at a 
 particular time, as at the end of the year, the quarter, or 
 the month, it is essential that the notice should itself be 
 sufficiently specific to designate the date of its expu^ation,^ 
 
 § 632. Statement of Cause Required. — When the notice 
 is given to a tenant, under a statutory provision for non- 
 payment of rent, which may be for a shorter time than that 
 pro\dded for putting an end to tenancies at will, or from 
 year to year, it should not only state the day upon which 
 the tenant is required to quit, but it should also specify the 
 cause for which the tenancy, whether it be for a designated 
 term, or is of uncertain duration, is intended to be thus 
 terminated.^ 
 
 §633. Time Mentioned in General Terms. — ISTeverthe- 
 less, it is by no means essential that the notice should men- 
 tion the precise day on which the tenancy is to expire, but 
 if otherwise stated correctly, the time may be mentioned 
 in general terms. Therefore a notice to quit at the end of 
 the month or quarter, as the case may be, which will expire 
 next subsequent to the day when the rent shall again 
 become due, without specif;^ing the exact day of the month, 
 would be sufficient to terminate a tenancy at will, for the 
 reason that it designates with sufficient certainty a day 
 equally within the knowledge of both tenant and landlord.'^ 
 
 § 634. Tenant from Week to Week. — So where a tenant 
 from week to week receives notice to quit the premises oc- 
 
 1 steward v. Harding, 2 Gray, 335; Oakes v. Munroe, 8 Cush., 282; 
 Boynton v. Bodwell, 113 Mass., 531. 
 
 2 Ciirrier v. Baker, 2 Gray, 224. 
 
 sSanford v. Harvey, 11 Cush., 93; Granger v. Brown, id., 191; Kemp 
 V. Derrett, 3 Camp., 510.
 
 LANDLORD AND TENANT. 359 
 
 cupied by him as such tenant, on a subsequent Friday, pro- 
 vided his tenancy expired on that day, otherwise at the end 
 of his tenancy next after one week from the date of the 
 notice, this was held sufficiently specific in its terms to en- 
 title the landlord to possession at the expiration of the time 
 therein indicated.' 
 
 §635. Must Not Demand Possession "Forthwith,"— 
 But where the statutorj^ notice was required to be given 
 fourteen days prior to the time of quitting, a notice which 
 was given the full time prescribed before the bringing of 
 an action by the landlord for possession, but Avhich in terms 
 demanded the vacation of the premises "forthwith," was 
 held insufficient, as not designating the time when the land- 
 lord would be entitled to possession after notice.^ 
 
 § 636. Undue Strictness Not Required.— Where the 
 notice is executed by an agent, or any one acting in a rep- 
 resentative capacity, it .is not necessary, in order to entitle 
 such notice to recognition by the party notified, that it 
 should possess all the formal requisites, as to execution, etc., 
 deemed essential in case of a letter of attorney ; but it will be 
 regarded as sufficient in this respect if it informs him as to 
 the source from Avhich the notice proceeds. Thus, where 
 the landlord was one C. M. H., and the notice to quit was 
 signed, " For C. M. H., by W. C. P., an authorized agent," 
 it was held to be formally sufficient.* 
 
 §637. Description. — The notice should also be suffi- 
 ciently specific in the description of the subject of demise, 
 not to mislead the other part}'', nor leave him in any doubt 
 as to what property is intended to be designated.'* And 
 where the notice is substantially defective in this particular, 
 it will, for obvious reasons, be altogether nugatory, how- 
 ever precise and exact it may be in its conformity to legal 
 requirements, in all other respects. Where there are sev- 
 
 iDoe V. Scott, 6 Bing., 363. 
 2ElUott V. Stone, 12 Cush., 174. 
 3 Reed v. Hawley, 45 ni., 40. 
 •« King V. Conolly, 44 Ccol., 236.
 
 360 NOTICE BY wnicn liabilities extinguished. 
 
 eral different places occupied by the same tenant, under the 
 same landlord, the law will not be satisfied by the giving 
 of a notice, either by landlord or tenant, which is so gen- 
 eral in its description of the premises as to apply equally 
 well to either. 
 
 § 638. Substantial Accuracy Alone Required. — IsTever- 
 theless, in this particular, as in all others regarding notices 
 of this sort, what the law requires is substantial, and not 
 technical, accuracy, and Avill not regard mistakes in the de- 
 scription which do not tend to mislead the party notified. 
 Thus, where the language of the notice was to quit that 
 "messuage, farm, etc., situated at D., in the county of York, 
 which you now hold under me, as tenant from year to 
 year," and it appeared on the trial that the farm intended, 
 and the only one occupied by the tenant, was not situated at 
 D., but at H., and that D. and H. were adjoining parishes, 
 the variance was held immaterial, as not calculated to mis- 
 lead the tenant.^ 
 
 §639. Illustration of Sufficient Certainty. — Where, 
 according to the terms of a lease for a term of years, either 
 party was at liberty to terminate the same at the expira- 
 tion of the fourteenth year, and there were several different 
 tracts held under the same lease, and notice to quit was 
 given, describing only a part of the property included in 
 the lease, but adding the words, " agreebly to the terms of 
 the covenant between us, on the expiration of the fourteenth 
 year of our term," this was held to indicate with sufficient 
 certainty that it was intended to apply to all, for the reason 
 that the covenants referred to did authorize a termination 
 of the lease as to part, and a continuation of the term as to 
 the rest,^ 
 
 § 640. Service of Notice. — There is not a great deal to 
 be said as to the manner and mode of serving notices of 
 this kind, beyond what is repeatedly laid down in other por- 
 tions of this work with respect to the service of notices, by 
 
 1 Doe V. "Wilkinson, 13 Ad. & El., 743. 
 ■ Doe V. Archer, 14 East, 245.
 
 LAITOLORD AXD TEXA2\'T. 361 
 
 which the rights of the party notified are affected. Any 
 manner of serving tlie written notice will suffice, when it 
 can be traced to the hands of the party for whom it was 
 intended, in due time. Personal notice is always best, be- 
 cause it is more direct, and when service upon the party in 
 person is practicable, it should be the mode adopted. But 
 were there no other way of bringing these tenancies to an 
 end, short of notice delivered to the landlord or tenant in 
 person, they might be rendered of indefinite duration, by 
 the avoidance of notice on the part of the party whose in- 
 terests dictated such a course. For this reason the doctrine 
 has long since been recognized, that, even in the absence of 
 a statute for that purpose, notice to quit may be effectually 
 served upon the tenant during his absence, by leaving the 
 same at his usual place of abode, whether it be upon the 
 leased premises or not, with his wife or other suitable member 
 of the family, or even with a servant.^ And where the party 
 has a place of business, he may be effectually notified by leav- 
 ing the written notice at such place, with some one in charge.- 
 §641. May be Waived. — This, like almost every other 
 species of notice, required by law for the preservation of a 
 right, or the exaction of a duty, may be waived. It, how- 
 ever, possesses one peculiarity in this respect not common to 
 all other kinds of notice, and that is, that the waiver may 
 be either before the notice is given, after the time for giving 
 it has elapsed, or subsequent to the giving of the notice, 
 when it has been given in due time. It may be Avaived by 
 either party before it is due or after failure to give notice, 
 by acting in conformity to the wishes of the other party in 
 amicably terminating the tenanc}^ precisely as though notice 
 had been given. It may also be substantially waived by 
 acting upon a defective notice. And there may be a waiver 
 of notice by the party giving it, when he subsequently acts 
 toward the other party precisely as though no such notice 
 had been given. 
 
 1 Jones V. Marsh, 4 T. R., 464 ; aark v. Keliher, 107 Mass., 408. 
 
 2 Walker v. Shariie, 103 Mass., 154.
 
 3G2 KOTICE BY "\;\'HICH LIABILITIES EXTINGUISHED. 
 
 § C42. Toluntary Surrender. — Where there has been a 
 voluntary surrender of the premises by the tenant, and an 
 acceptance thereof by the landlord, the necessity for notice 
 to quit is thereby dispensed with, and either party would be 
 justified in treating the tenancy as at an end from the time 
 of such surrender and acceptance. The transaction pos- 
 sesses all the essential characteristics of any executed con- 
 tract, and for that reason it would be equally effectual as 
 a waiver of notice whether it were verbal or written.^ 
 
 §643. Parol Surrender and Acceptance. — So where 
 premises were thus surrendered and accepted, though by 
 parol, and no claim for rent Avas made for seven years there- 
 after, and the premises were relet to others, the surrender 
 was treated as an accomplished fact, and not to be affected 
 by the statute of frauds.'- And a surrender of this kind, and 
 the acceptance by the landlord, may be proven by the ch'cum- 
 stance that the landlord relet the premises dming the term for 
 which the tenant would have been held but for the surrender.' 
 
 § 644. Offering to Let Xot Waiver.— But where the 
 tenant is absent for a time, or even without the intention of 
 returning at all, and during such absence the landlord offers 
 the place to let b}" putting up placards on the premises, or by 
 what means soever he may choose to adopt, whether public 
 or private, unless the place is actualh' rented, the landlord 
 will not be held to have accepted the surrender, and thereby 
 waived his right to notice.* 
 
 § 645. Parol Surrender Must Go Into Immediate Ef- 
 fect. — In order that a parol surrender may be effectual, it 
 must o;o into effect at the time the same is offered. It will 
 not be sufficient to terminate a tenancy from year to year 
 when there is merely a verbal offer to smTender prior to the 
 time when it is proposed to give up the premises, which 
 offer is accepted in the same manner, where the statute of 
 
 1 Whitehead v. Clifford, 5 Taunt., 518; Williams v. Jones, 1 Bush (Ky.), 
 621. 
 
 2 Pratt r. Richards, 69 Pa. St., 53. 
 
 3 Witrnan v. Watiy, 31 Wis., 638. 
 
 <Pier V. Carr, 69 Pa. St., 326; Redpath v. Roberts, 3 Esp., 225.
 
 LANDLORD AND TENANT. 303 
 
 frauds is recognized.^ It is provided by this stcatute that 
 " no lease or term of years, or any uncertain interest of or 
 in any messuages, lands, tenements or hereditaments shall be 
 surrendered, unless by deed or note in writing, or by act 
 and operation of law." Therefore parol notice less than six 
 months before the day on which the tenant is to quit, that 
 he will on that day vacate the premises, to which the land- 
 lord assents, being insufficient as a notice on account of 
 shortness of the time, is void as a surrender, for the reason 
 that it is to take effect m futuro, and is not reduced to 
 writing.^ 
 
 § 646. Terbal License to Surrender Tenancy from Year 
 to Tear Inoperative. — So where a dispute arose betAvceu 
 a tenant from year to year and his landlord concerning re- 
 pairs, and the tenant threatened to quit the premises, to 
 which the landlord rephed, "You may quit when you 
 please ! " and the tenant accordingly, a few days thereafter, 
 left the premises, it was held that this did not terminate 
 the tenancy, and the tenant would still be liable for rent.^ 
 
 § 647. Defects in Notice May be Waived.— The defects 
 in a notice which is insufficient for the reason that it desig- 
 nates no time, either specially or in general terras, may be 
 waived, so as to give it all the force and effect of a regular 
 and perfect notice. Thus where such defective notice was 
 given by the tenant to the landlord, and the latter, after re- 
 ceiving the notice, in order to induce the tenant to remain, 
 offered to lower the rent and make certain repairs, these 
 facts were held admissible in evidence to prove the land- 
 lord's waiver of the omissions from the notice.^ 
 
 § 648. Waiver of Rights Under Notice. — AVhen notice 
 has been given by either the landlord or the tenant, whether 
 the time for which such notice is given has expired or not, 
 the waiver by the party giving the notice would properly 
 
 129 Car. H., c. 3, §3. 
 
 2 Jolmstone v. Huddlestone, 4 B, & C, 932; Doe v. Milward, 3 Mees. 
 &Wels., 328. 
 SMollett V. Brayne, 2 Camp., 103. 
 *Boynton v. Bodwell, 113 Mass., 531.
 
 364 NOTICE BY WHICH LIABILITIES EXTINGmSHED. 
 
 be styled a waiver of his rights under the same, rather than 
 a waiver of notice, as it is generally termed. This right 
 may be waived b}^ either party so as to perpetuate the ten- 
 anc}^. If the landlord receive rent after the date when 
 the tenant is notified to quit, or after gi\'ing such notice 
 in advance for a time subsequent to the designated time of 
 quitting, this will operate conclusivel}" upon him to prevent 
 the enforcement of his rights to immediate possession.^ 
 Upon the same principle, the landlord's distraining for rent, 
 accrued after the expiration of his notice to quit, will 
 amount to a waiver.^ 
 
 § 64:9. Will Not be Presumed from Acceptance of Bent 
 by TTnautliorized Person. — But where the tenancy is regu- 
 larly terminated by notice to quit, and the tenant wilfully 
 holds over without the permission of the landlord, express 
 or implied, such holding over wiR not prolong the tenancy.' 
 And though such permission may be implied from a receipt 
 of rent after such notice, where the rent was paid to one 
 who was not authorized to receive it, such payment would 
 not affect the rights of the landlord, although such person 
 had previously been accustomed to receive rents for the 
 landlord.* ISTor would the giving of a second notice to 
 quit, after the expiration of the time limited in the first, 
 amount to a waiver of the party's rights under the notice.' 
 
 § 650. Mere Permission to Remain After Notice No 
 Waiver. — Mere permission of the landlord for the tenant 
 to remain for a time after notice will not in every instance 
 amount to a waiver. Thus where, after notice, the landlord 
 promised the tenant that he need not remove, unless the 
 premises were sold, and accordingly permitted him to re- 
 main until such sale, it was held that the notice was not 
 thereby waived." 
 
 1 Collins V. Canty, 6 Cush., 415; Prindle v. Anderson, 19 Wend., 391; 
 Goodright v. Cordwent, 6 T. R., 219. 
 2Zoucli?j. Willingale, 1 H. Blackst., 311. 
 3Boggs V. Black, 1 Bin., 333. 
 * Doe V. Calvert, 2 Camp., 387. 
 5 Messenger v. Armstrong, IT, E. , 43. 
 ' Whiteacre v, Symonds, 10 East, 13.
 
 CHAPTER IX. 
 
 PRINCIPAL AND AGENT. 
 
 I. Notice of Agexcy. 
 
 II. Notice to an AGE>rr. 
 
 III. Notice by an Agent. 
 
 I. Notice of Agency. 
 
 § 651. Principal's Liability, When Agent Exceeds Authority. 
 
 653. Secret Instructions Will Not Limit. 
 
 653. Limited by Written Authority. 
 
 654. Principal Bound by Agent's Representation. 
 
 655. Notice of Limitation Should be Prior to the Transaction. 
 
 656. Pi-incipal Bound by Agent's Acts in Excess of Authority by 
 
 Letter of Attorney. 
 
 657. Persons Dealing with Agent ]\Iust Take Notice of Contents of 
 
 Letter of Attorney. 
 
 658. Public and Private Restriction of Authority. 
 
 659. Agent's Authority Limited by Law. 
 
 660. When Parties Bound to Inquire. 
 
 661. Illustration Where Authority in Writing. 
 
 662. Illustration Where Authority by Parol. 
 
 663. Difference Between General and Special Agents. 
 
 664. Transactions Requiring Sciaitiny of Agent's Authority. 
 
 665. Avoidance of Knowledge of Limitation of Agent's Authority. 
 
 666. Agent to Negotiate Bills and Notes. 
 
 667. Subsequent Ratification. 
 
 668. Ratification with Notice Binds Principal. 
 
 669. Silent Acquiescence Will Release Agent. 
 
 670. Contract in Name of Agent Binding. 
 
 671. Principal Bound Though Agency Concealed or Revoked Without 
 
 Notice — Husband and Wife. 
 671a. Ratification of Acts After Authority Revoked. 
 
 § 651. Principal's Liability, When Agent Exceeds Au- 
 thority. — The full measure of the principal's liability for 
 the acts of the agent is not declared in the rule as generally 
 laid down — that the principal is liable for the acts of his
 
 366 PKINCIPAL AND AGENT. 
 
 agent, done within the scope of his authority. One dealing 
 with an agent is not always fully informed of the extent of 
 such agent's authority, and when his want of knowledge is 
 not the result of laches, or voluntary ignorance, the princi- 
 pal may be bound, though the agent exceeds his authority. 
 "When the apparent authority with which the agent is 
 clothed is greater than was intended by the principal, the 
 liability of the latter for unauthorized acts of the former 
 arises from the application of the familiar principle, that 
 where one of two innocent parties must suffer by the mis- 
 conduct of another, it should be the one who has placed it 
 within the power of the other to perpetrate the wrong.' 
 
 § 652. Secret Instructions Will Not Limit. — A person 
 dealing with an agent who is apparently clothed with gen- 
 eral powers in connection with the subject-matter of the 
 transaction is not required to take notice of private or 
 secret instructions, limiting the powers of such agent, nor 
 is he put upon inquiry in regard to such instructions, so long 
 as the transactions are within the general scope of the 
 agent's ostensible powers.- Accordingly, when the author- 
 ity of an agent, authorized to sell goods on commission, was 
 restricted to sales for cash, of which restriction a common 
 carrier had no express notice, and the agent exceeded his 
 authority by selling on credit, the carrier was not, as a mat- 
 ter of law, put on inquiry by the initials " C. O. D." marked 
 on the package delivered to the customer, and was hence 
 not liable to the principal for failure to collect, unless, in 
 the opinion of the jury,4:he marks on the package amounted 
 to notice. The carrier had the written order of the agent 
 to deliver the goods, and had notice of the agent's authority 
 to sell, and whether he was sufficiently notified of the restric- 
 tion upon this authority was a question of fact for the jury.^ 
 
 1 Ramsey v. Strobach, 52 Ala., 513; Calais Steamboat Co. v. Van Pelt, 
 2 Black, 372; 2 Kent's Comm., 620-21; Story on Agency, § 127. 
 
 2 Andrews v. Kneeland, 6 Cow., 354; Beals v. Allen, 18 Johns., 363; 
 Pickering v. Busk, 15 East, 38. 
 
 3DayUght Burner Co. v. Odlin, 51 N. H., 56; 13 Am. R., 45.
 
 NOTICE OF AGENCY. 367 
 
 § 653. Limited by Written Authority.— When notice 
 of the authority conferred upon an agent is communicated 
 by a letter of attorney, letter of credit, or other writing, 
 the course to be pursued by persons dealing with such agent 
 is quite clear. The full extent of the power conferred may 
 be looked for in the written instrument. By it, the agent's 
 authority will be expressly defined. When, however, the 
 principal has not thus expressly defined the limits of the 
 power conferred upon his representative, the extent of his 
 authority may be inferred from the acts of both principal 
 and agent. ^ As where goods were bought of a broker to 
 whose name they had been transferred, the purchaser would 
 not be affected by secret instructions from the principal. 
 Putting the goods in the hands of one whose business it 
 was to sell, amounted to an implied authority to sell them.- 
 So where the equitable owners of a vessel permitted her to 
 be held in the name of another as legal owner, for the pur- 
 pose of making a sale, a purchaser might infer from such 
 conduct, even where he had notice of the character in which 
 the legal owner held, that he had unlimited authority to 
 dispose of the vessel. Such purchaser could not be affected 
 by any concealed interest, or secret instructions from the 
 principal, of which he had no notice. And such notice, it 
 was held, to affect him, should be established by unequivo- 
 cal proof, where the fact had been studiously secreted down 
 to the time of sale.'' So also in an action of ass^nnpsit, on 
 a warranty by a servant empowered to sell a horse, the de- 
 fendant denied the authority of the servant to make the 
 warranty. It was held by Lord Ellenborougk, however, 
 that as the horse was intrusted to the servant's care for 
 the express purpose of selling it, the inference would follow 
 
 1 Perkins u Wash. Ins. Co., 4 Cowen, 645; Com. Bank Lake Erie v. 
 Norton, 1 HiU, 501. 
 
 2 Pickering v. Busk, 15 East, 38; Wliitehead v. Tuckett, id., 400; 
 Everett v. Saltus, 15 Wend., 474; Dyerr. Pearson, 3 Baxn. & Cres., 38; 
 Sanford v. Handy, 23 Wend., 260. 
 
 3 Calais Steamboat Co. v. Van Pelt, 2 Black, 372.
 
 3G81r PKIXCIPAL AND AGENT. 
 
 that he was authorized to do whatevei' was necessary to 
 effect the sale.^ So where an agent was employed to obtain 
 subscriptions to the capital of a joint stock company, his 
 principal was held liable for his false representations, be- 
 cause to make representations was within the scope of his 
 authority, and was what should have been expected from 
 one employed in that capacity," 
 
 § 654. Principal Bound by Agent's Representation.— 
 Where representations are made by an agent, to which it is 
 sought to hold the principal, the privity of the principal 
 may be presumed from the character of such representa- 
 tions, and the notoriety with which they are made. As where 
 the agent of ship-owners advertised the sailing of a vessel, 
 and in the pubhc advertisement made representations as to 
 convoy, etc., it was held to render the owners privy to the 
 representations made, and consequently bound by them.^ 
 
 § 655. Notice of Limitation Should be Prior to the 
 Transaction. — Notice of the agency, and of its special 
 character, must come to the person dealing with the agent 
 lefore the transaction, in order to affect such person. As 
 where one borrowed the principal's money of the agent for 
 a stipulated time, it was decided that he could hold it as 
 against the principal, notwithstanding subsequent notice of 
 the agency, and that in loaning the money the agent ex- 
 ceeded his authority.* 
 
 § 656. Principal Bound by Agent's Acts in Excess of 
 Authority by Letter of Attorney. — Even when tlie au- 
 thority of the agent is expressly Umited in the written in- 
 strument to which persons dealing with him are bound to 
 look in order to learn that he has any power whatever to 
 
 iHelgearr. Hawke, 5 Esp., 73. 
 
 2Sandford v. Handy, 23 Wend., 260. 
 
 SRunquist v. Ditchell, 3 Esp.,. 64; Hunter v. Hudson, etc., Co., 20 
 Barb., 493; National Ech. Co. v. Drew, 32 Eng. L. & Eq., 1. It has been 
 held however, that the principal will not be held where he did not direct 
 the representations to be made. Fuller v. Wilson, 3 Ad. & Ell., N. S., 
 629. 
 
 * Lime Rock Bank v. Plimpton, 17 Pick., 159.
 
 KOTICE OF AGENCY. 300 
 
 bind his piincipal, he may overstep the limits of his au- 
 thority, and bind his principal. As Avhere an agent had 
 been sent from England to Peru, with a Avritten power of 
 attorney to purchase, lease, work, etc., mining claims and 
 mines for his principal, with also a general letter of credit 
 authorizing him to draw upon the principal to the extent of 
 £10,000. After drawing the amount authorized by his letter, 
 he gave plaintiff a draft for £1,500 additional, and it was 
 held that the plaintiff miglit infer from the power of attorney 
 that the agent was clothed with necessary authority to carry 
 out the extensive enterprises therein mentioned, and even if 
 plaintiff had seen the letter of credit, as the amount already 
 drawn was not indorsed thereon, it would not have amounted 
 to notice to him that defendant's agent had exceeded the 
 limits of his authority.^ So it was held in another case,- 
 that the conduct and admissions of the agent as to his own 
 interpretation of the authority conferred upon him would 
 justify a person dealing with him in entering into contracts 
 which they both Jcnew to be bej^ond the letter of the agent's 
 instructions. The authority of this case may well be ques- 
 tioned. The agent had written authority from his principal 
 to purchase grain at a fixed price. The written authority 
 was communicated to the seller of the grain, Avho said 
 " There must be some mistake," and sold the grain to the 
 agent on account of his principal, at a price in advance of 
 that which the agent was by his written instructions au- 
 thorized to contract for. In an action to recover the pur- 
 chase price, the agent, being called as a witness, testified on 
 cross-examination that he considered himself authorised to 
 pay a higher price than that mentioned in his written insti^uc- 
 tions, whereupon the court declared that the agent " admits 
 he did not consider himself as bound by tiie direction in 
 writing of' his principal ; he considered himself at liberty to 
 exceed that authority." Therefore, it was held, his principal 
 was bound. Here the agent who had exceeded his au- 
 
 1 Withington v. HeiTing, 5 Bin^., 443. 
 
 2 Hicks V. Hankin, 4 Esp., 114. 
 
 34
 
 C70 PKINCIPAL AND AGENT. 
 
 thority in order to justify his conduct on the ground of 
 good intentions is allowed to admit away his principal's 
 defense. 
 
 § 657. Persons Dealing with Agent Mnst Take Notice 
 of Contents of Letter of Attorney. — The correct rule is, 
 that when an agent is known to be acting under written 
 instructions, those having dealings with him should look to 
 the instrument by which his powers are conferred, to gain 
 a knowledge of the extent of those powers, and where they 
 neglect to examine his written authorization, they are none 
 the less charged with notice of the limitations and restric- 
 tions therein contained, either in express language or by 
 necessary implication.^ A party dealing with an agent 
 whose authority is conferred by a written instrument is 
 bound to take notice of its legal effect.^ It was accordingly 
 held as the general words in a power of attorney would not 
 enlarge the scope of tlie powers therein conferred, beyond 
 what was indicated in the preceding language, that notice 
 must be taken of the particular words by which such pow- 
 ers were restricted.^ 
 
 § 658. Pnblic and Private Restriction of Authority. — 
 "When the limitation on the authority of a general agent js 
 public, every one must regard it. But if it be private, it 
 must be brought directly to the notice of any one dealing 
 with him in that capacity ; otherwise the principal will be 
 bound by transactions beyond the limits of the agency.* 
 
 § 659. Agent's Authority Limited l)y Law. — Where the 
 limitations upon an agent's authority are fixed by law, every 
 one is bound to notice them. As in case of a guardian or 
 curator of an infant, who is dealing with his ward's estate, 
 any one who is a party to such a transaction, with notice 
 that the subject-matter of their dealings is the property of 
 
 iStainback v. Bank of Virginia, 11 Gratt., 269; Leverich v. Mayor of 
 New York, 66 Barb., 623. 
 2Rossiter v. Rossiter, 8 Wend., 494. 
 3 See Campbell v. Hastings, 29 Ark., 512. 
 * Bryant v. Moore, 26 Me., 84; Johnson v, Jones, 4 Barb., 369.
 
 NOTICE OF AGENCY. 371 
 
 the ward, is charged ^vith notice of the statutor}^ limitations 
 upon the power of the guardian, and acts at his peril.' 
 
 § 660. When Parties Bound to Inquire. — When the 
 agent acts under a special authority, whether written or 
 verbal, those dealing with him, with notice of the nature 
 and character of such agency, are bound to inquire into the 
 extent of the power conferred upon such agent."^ 
 
 § 661. Illustration Where Authority in Writing. — The 
 above doctrine, as applied to agents acting under written 
 authority, is fairly illustrated by the case of Schimmelpenich 
 1). Bayard.'^ There the principal, who was plaintiff in the 
 action, resided abroad, and appointed an agent in this coun- 
 try, Avith authority to purchase certain commodities on ac- 
 count of the principal, and, for the purpose of facilitating 
 the business, requested defendant to indorse drafts drawn 
 by such agent on the principal, to an amount expressly lim- 
 ited in the letter of credit, for the purpose of making such 
 purchases. In the correspondence between plaintiff and 
 defendant the former warned the latter not to advance any 
 money to the agent, except there was a " moral certainty " 
 that he was using it in the interest of his principal. Plaint- 
 iff had also advised defendant to take the agent's bills " in 
 the persuasion of their solidity, and of the reality of the 
 transactions on which they were issued." Though the prin- 
 cipal continued to receive consignments, and honor drafts 
 somewhat in excess of the amount limited in the letter of 
 credit, and in his correspondence with defendant expressed 
 confidence in the integrity of the agent, he was held not to 
 be bound by excessive drafts drawn by the agent to obtain 
 money for his own, instead of the principal's, use. 
 
 •Woods V. Boots, 60 Mo., 546. 
 
 2 Snow V. Perry, 9 Pick., 542; Dunning v. Smith, 3 Johns. Ch., 344; 
 Hatch V. Taylor, 10 N. H., 547; Towle v. Leavitt, 23 N. H., 36; Schim- 
 melpenich V. Bayard, 1 Pet., 264; Gibson v. Colt, 7 Johns., 390; Stainor 
 V. Tyson, 3 Hill (N. Y.), 279; North River Bank v. Aymar, id., 263; 
 Molony v. Kernon, 2 Dr. & War. , 40 ; Kerr v. Lord Dungannou, 1 Dr. & 
 War., 509; Att'y Gen. v. Pargeter, 6 Beav., 150. 
 
 » 1 Pet., 264.
 
 372 PKINCIPAL AND AGEISTT. 
 
 §662. Illustration Where Authority by Parol.— The 
 
 case of Towle v. Leavitt ^ is an example of the operation of 
 this rule in cases where the authority conferred upon the 
 agent is not reduced to writing. Here, the principal in- 
 trusted a phaeton to the care of one whose general business 
 was to make and sell, as well as to repair, carriages, etc., 
 with power to sell the phaeton, but for not less than $40. 
 At the close of a sale of some of his own property, under an 
 attachment, the agent offered the phaeton at auction, and 
 it was purchased for $17. It was held that the unusual 
 manner of the sale, together with the fact that it was a 
 second-hand vehicle, such as it was not the business of the 
 agent to sell, were sufficient to inform the purchaser of the 
 special character of the agency, and put him upon inquiry 
 as to the extent of the agency ; and that, as such inquiry 
 would have led to the knowledge that the agent was not 
 authorized to sell at auction, or for a less sum than forty 
 dollars, the principal might reclaim his property. So in the 
 case of Gibson v. Colt,- it was decided that a power to sell 
 was a special power, so far as concerned any transactions or 
 contracts beyond the mere selling. That it did not include 
 power to warrant. In this case the master of a vessel was 
 authorized to sell in the same manner as the owners might 
 sell, and, upon offering the vessel to the purchasers, made 
 false representations as to her registr}'-, and the court held 
 that the owners were not bound by such representations, as 
 the purchaser was charged with notice of the powers with 
 which the agent was clothed, and that such representations 
 were in excess of such powers. There is an apparent con- 
 flict between this case and that of Helyear v. Hawke,^ which 
 
 123N. H., 36. 
 
 27 Johns., 390. See, also, Edwards v. Thomas, 2 Mo, App., 282; 
 Clerks' Sav. Bank v. Thomas, id., 367, where it was held that the indorser 
 of negotiable paper, indorsed by an agent, for the benefit of one other 
 than his principal, knowing it to be accommodation paper, was put upon 
 inquiry as to the authority of the agent to bind his principal by the in- 
 dorsement. 
 
 35 Esp.,72. See, also, Bronson v. Ooflin, 118 Mass., 156; Wicks v. 
 Hatch, 63 N. Y., 585.
 
 NOTICE OF AGENCY. 373 
 
 can only be reconciled, if at all, upon the ground that in the 
 English case selling was the business in which the owners 
 were engaged, and the agency was general for that purpose, 
 while in the American case the selling of the vessel was a 
 departure from the general business of both owner and 
 master, and hence the agency for that purpose was strictly 
 special, 
 
 § 663. Difference Between General and Special Agents. 
 To determine the extent to which purchasers from agents 
 are charged with notice of limitations upon their powers, 
 it is necessary to keep constantly in view the distinction 
 between those who act under general authority and those 
 clothed by the principal with special powers. In deahng 
 with one of the former, the principal is bound by every- 
 thing done within the general scope of his authority, until 
 the person dealing with him has been notified of a revoca- 
 tion of his authority ; while, Avhere the agent is exercising 
 powers specially conferred, every act is void, so far as it 
 affects the principal, which is not in strict conformity with 
 his instructions.^ 
 
 § 664. Transactions Requiring Scrutiny of Agent's 
 Authority. — Where the agent professes to act under and 
 by virtue of authority specially conferred, the duty of the 
 person dealing with him is quite plain so far as concerns in- 
 quiry into the extent of such special authority. But con- 
 troversies quite frequently arise from a misconception of 
 this matter, by the agent, the person dealing with him, or 
 by the principal. The two former are hable to be misled 
 by the general language of a letter of attorney, given for a 
 special imrpose? The latter may incur liability by appar- 
 ently investing his representative with larger powers than 
 he really intended.^* There are, however, certain transac- 
 tions which, by their very nature, should excite caution upon 
 
 1 Allen V. Ogden, 1 Wash. C. Ct., 174; Munn v. Commission Co., 15 
 Johns., 44; Nixon v. Palmer, 8 N. Y., 398. 
 
 2 See supra, § 657. 
 
 3 See supra, § 656.
 
 374 PKINCIPAL AND AGENT. 
 
 the part of one dealing with an agent, and lead to careful 
 scrutiny and inquiry. Such, for example, is the acceptance 
 of hills, and th^ execution of promissory notes, by one as the 
 agent of another. Here the agency is apparent on the face 
 of the transaction, and as these are powers which are exer- 
 cised almost invariably under special authority, it behooves 
 the holder of the note, or the party accepting the bill, to 
 look well to the extent of the agent's powers.^ In the case 
 cited the agent acted under two letters of attorney, by one 
 of which he was authorized to do certain acts, among others 
 to indorse bills for and in the name and to the use of his 
 principal. This it was held only authorized acts for the de- 
 fendant's sole use, and not for a copartnership of which he 
 Avas a member. And though there were general words in 
 the instrument, as the power to accept bills was not in- 
 cluded among those enumerated, it could not have been 
 intended. The other letter gave express authority to ac- 
 cept for the defendant, and on his behalf, bills drawn by 
 his agents. This was held not to include partnership paper 
 drawn by one of his partners. This was the legal construc- 
 tion put upon these powers of attorney, and so they should 
 have been taken notice of by the plaintiff.' 
 
 § 665. Avoidance of Knowledge of Limitation of 
 Agent's Authority. — One dealing in good faith with an 
 agent, upon the strength of his apparent authority, and 
 where the matter seems within the general scope of the 
 powers usually conferred upon such agents, may be excused 
 from that close scrutiny into the nature and extent of the 
 agent's authority that would be required at the hands of one 
 who manifestly sought an unfair advantage. As where a 
 shipper of goods had received a proportion from the owners 
 of a vessel for the carrying of certain articles of merchan- 
 dise at certain rates. The shipper had a personal interview 
 with the owners and endeavored to obtain a contract for the 
 
 J Atwood V. Munning, 7 Barn. & Ores., 278. See, also, Spooner v. 
 Thompson, 48 Vt., 259. 
 2 See supra, § 657.
 
 NOTICE OF AGENCY. 375 
 
 transportation of the goods at reduced rates, but failed in 
 obtaining the concession. Subsequently he saw their agent, 
 and, concealing the fact of his interview with the principals, 
 obtained a written contract from him upon more favorable 
 terms than the owners would agree to. The vessel was ac- 
 cordingly laden, and the captain, supposing the contract to 
 be binding, signed bills of lading in conformity therewith. 
 It was held that as the shipper had reason to know that the 
 agent's authority Avas limited, he would be charged with 
 notice of that fact, and consequently the owners were not 
 bound by the action of either of tiieir agents Avho exceeded 
 their authority, and could command the regular and custom- 
 ary price for the carriage.^ 
 
 § 66G. Agent to Negotiate Bills and Notes. — An agent 
 who is intrusted with the disposal of negotiable instruments 
 is usually, to all appearance, the regular holder. And when 
 he disposes of such paper by sale, pledge or otherwise, con- 
 trary to the orders of his principal, to a hona fide purchaser 
 without notice, the principal will be bound by the transac- 
 tion, though the holder took them without any inquiry at all ; 
 " for it is said that the title of the holder, in case of nego- 
 tiable instruments, is derived from the instrument itself, and 
 not from the title Avhich the party has from whom he re- 
 ceived them." - 
 
 § 667. Subsequent Ratification. — Even where the rela- 
 tion of principal and agent does not exist, either in fact or 
 appearance, at the time of the contract, under certain cir- 
 cumstances, the obligation may be rendered binding upon 
 the principal by subsequent ratilication ; but here the law of 
 notice comes into operation as affecting the principal. For 
 the ratification of the acts of one falsely assuming to act as 
 the agent of another, in order to be effectual, must be with 
 a full knowledge of the circumstances.* 
 
 1 Barnard v. Wheeler, 24 Me., 412. 
 
 -'Bay V. Coddington, 5 Johns. Ch., 54; S. C, 20 Johns., 637; Story on 
 Agency, § 228. 
 ■i NLxon V. Pahner, 8 N. Y,, 398.
 
 376 PRINCIPAL AND AGENT. 
 
 § G6S. Ratification with Notice Binds Principal. — But 
 
 where the principal has been, duly notified of the acts of his 
 pretended agent, he may, not only by express approval, but 
 by his conduct in accepting the benefits to be derived from 
 the transaction, or by protracted silent acquiescence, estop 
 himself from evading its attendant liabilities; for it is the 
 duty of such an involuntary party to a contract, as soon as 
 he is notified thereof, to signify his disapproval without un- 
 necessary dela}?' by giving notice to the other party.^ And 
 if the transaction which he proposes to repudiate consists 
 of a purchase of goods in his behalf, he should return the 
 goods, and this notice of disapproval, and restitution should 
 take place with equal promptness, whether he seeks to deny 
 the agency itself, or only claims that the agent has ex- 
 ceeded his authority.^ 
 
 § 66y. Silent Acquiescence Will Release Agent. — It is 
 also held in the case last cited that the silent acquiescence 
 of the principal after notice will release the agent from fia- 
 bility for disobeying instructions. So, where an action was 
 brought against a naval commander, for his acts in a public 
 capacity, in excess of the authority conferred by his instruc- 
 tions, it was held that the approval of his government, after 
 due notice of the circumstances, rendered it the act of gov- 
 ernment, and the public agent could not be held civilly liable 
 to one injured b}^ such acts.^ But the mere fact of ratifica- 
 tion of a single transaction as purchasing agent will not 
 justify persons in giving him credit as such, fifteen months 
 afterwards, when he pretends to be acting for the same 
 principal.^ 
 
 § 670. Contract in TVame of Agent Binding. — Where 
 one has dealings with an agent, knowing him to be acting 
 
 1 SummerviUe v. Hannibal & St. J. R. R. Co., 62 Mo., 391 ; Home Life 
 Ins. Co. V. Pierce, 75 111., 426; Henderhen v. Cook, 66 Barb., 21. 
 
 2 Johnson v. Jones, 4 Barb., 369; Bray v. Gunn, 53 Ga., 144. 
 SBuron v. Denman, 2 Exch., 167. 
 
 *Cupples V. Whelan, 61 Mo., 583. See, also, Everett v. Saltus, It 
 Wend., 474.
 
 NOTICE OF AGENCY. 377 
 
 in that capacity, the contract entered into between them 
 will not only bind the principal, but will bind the other 
 party to the principal, though the transaction is in the name 
 of the agent.^ In tliis case a marine policy of insurance 
 was taken out in the name of the agent, with notice to the 
 insurer that it was for the principal's benefit, and the com- 
 pany was not allowed to reduce the amount of the claim 
 for loss by set-off of a debt against the agent personally ; 
 though the premium note given by the agent in his own 
 name was deducted as being the debt of the principal. 
 
 § 671. Principal Baiiml Though Agency Concealed, or 
 Revoked Without Notice — Husband and Wife. — A con- 
 tract made by an agent for his principal may bind the 
 principal though at the time the other contracting party 
 may have no notice of the agency, and believe the agent to 
 be the real party with whom he is contracting;- though 
 in case of a concealed agency, a subsequent disclosure does 
 not deprive the other party of his right of action against 
 the agent, who concealed the name of his principal. An 
 action may be maintained against the principal because he 
 received the benefit of the contract, and against the agent 
 because it was to him the credit was given, on his own rep- 
 resentations ; but there can only be one satisfaction.^ And 
 where a pre\'iousl3^ subsisting agency has been revoked 
 without notice to the party accustomed to have dealings 
 with the principal through such agent, the liability of the 
 principal will attach to all transactions in the name of the 
 principal, within the apparent scope of the agent's author- 
 ity mitil notice of revocation.* The principal's estate has 
 also been held when such agency was revoked by his own 
 death, and the transactions occurred in good faith before 
 
 1 Hulbert v. Pacific Insurance Co., 2 Sumn., 471. 
 
 2Ingelhart v. Thousand Island Hotel Co., 14 N. Y. Sup. Ct., 547. 
 
 SBeymer v. Bonsall, 79 Pa. St., 298. 
 
 ^Clafflin V. Lenheim, 66 N. Y., 301; McNeilly v. Continental Life Ins. 
 Co., id., 23; Spencer v. Wilson, 4 Munf., 130; Morgan v. Stell, 5 Binn., 
 305; Beard v. Kirk, 11 N. H., 397.
 
 378 PKmCIPAL AND AGENT. 
 
 notice of such death either to the agent or the other party .^ 
 But under a similar state of facts, such transactions were 
 held void though made in good faith and in ignorance of 
 the principal's death.^ The doctrine of agency has been 
 applied to the relation of husband and wife, in order to ac- 
 count for the former's liability for the latter's contracts, and 
 hence the acts which amount to a revocation of such agency, 
 and what is notice of such revocation to those giving her 
 credit. The learning heretofore laboriously expended in 
 that direction has seemed to involve itself in such incon- 
 sistencies, that it may now well be doubted whether the 
 husband's liability for the debts contracted by his wife rests 
 upon the doctrine of implied agency. Where it is so held, 
 however, such agency is considered as revoked by the wife's 
 abandonment of her husband's bed and board, especiall}'^ 
 where she is living in adultery with another, and her noto- 
 riously living apart is regarded as notice of the revocation 
 of the agency.^ But, on the other hand, if he puts her 
 away, or her desertion of him is because of his adultery, he 
 still remains liable as before, notwithstanding the fact that 
 he gives express notice to those who supply her wants, not 
 to give her credit on his account,'* 
 
 § 671a. Ratification of Acts After Authority Revoked. 
 As already stated, there are circumstances under which the 
 principal Avill be held liable for the acts of his agent in 
 excess of his authority conferred by letters of attorney.^ 
 But persons dealing with an agent so authorized must take 
 notice of the contents of the instrument b}'- which the 
 power is conferred," and when such powers are exceeded 
 
 1 Cassiday v. McKenzie, 4 W. & S., 283; Smout v. Ilbery, 10 M. & W., 
 1 ; Watson v. King, 4 Camp. , 273. 
 
 2 Rigs V. Cage, 8 Humph. (Tenn.), 350. 
 
 3 Brown v. Patton, 3 Humph. (Tenn.), 135; Baker v. Barney, 8 Johns., 
 73; Robison v. Goswold, 6 Mod., 171; Caney v. Patton, 2 Ashm. (Penn.), 
 140; Hunter v. Boucher, 3 Pick., 289: Morris v. Martin, 1 Str., 647; 
 Manwairing -y. Sands, id., 706; McCutchen v. McGahay, 11 Johns., 281. 
 
 ^Sj'kes V. Halstead, 1 Sandf., 483; Etherington v. Parrot, 1 Salk., 118. 
 
 5 Supra, § 656. 
 
 6 Supra, § 657.
 
 NOTICE OF AGENCY. 379 
 
 the principal will not be bound unless he subsequently rati- 
 fies the acts of his agent, Avith notice of the excess of 
 authority.' Examples are given in the sections cited of rati- 
 fication by which the principal will be bound. But when 
 the principal authorized his clerk to draw checks against 
 the former's bank account, and such authority was con- 
 ferred by power of attorney in which the period for which 
 the clerk was empowered to act was limited to fifteen days, 
 it was held that the principal could not be bound by checks 
 drawn by the agent after that time, notwithstanding the 
 fact that the bank-book was written up several times in the 
 mean time, without the principal's knowledge — the book 
 being in the hands of the clerk.- But where an agent ex- 
 ceeded his authority by procming a promissory note for 
 his principal for which he receipted in the principal's name, 
 agreeing that the note should be taken care of at maturity, 
 aU of which was unauthorized, the principal was held to 
 have ratified the contract, by using the note in his business.^ 
 
 1 Supra, §§ 667, 668, 669. 
 
 2 Manufacturers' Nat. Bank v. Barnes, 65 111., 69; 16 Am. Rep., 576. 
 SMundorff v. Wickersham, 63 Pa. St., 87; 3 Am. Rep., 531.
 
 .^89 rEINCIPAL AND AGENT. 
 
 II. Notice to an Agent. 
 
 § 672. Notice to Agent is Notice to Pi-incipal. 
 
 673. General Application of the Rule. 
 
 673a. The Effect "VVliere Actual Notice Essential. 
 
 674. Effect of Notice Depends Upon Nature of Agency. 
 
 675. Executive Officer of a Bank. 
 
 676. Notice to Trustees. 
 
 677. Bound by Agent's Unlawful Acts. 
 
 678. Person Misled by Acts of Principal. 
 
 679. Wife Affected with Husband's Knowledge. 
 
 680. Confined to Transactions in "Which He is Active. 
 
 681. Notice to One of Several Agents Sufficient. 
 
 682. Director of a Bank. 
 
 683. Corporation Not Affected with Every Fact Known to Directors. 
 683a. Notice to Du-ectors of Corporation. 
 
 688&. Notice to Corporations Thi-ough Their Executive Officers. 
 
 684. Joint Pui'chasers Not Principal and Agent. 
 
 685. The Same Kind of Notice to Principal as to Agent. 
 
 686. To Agent of Agent Not Sufficient. 
 
 687. Place, Manner and Time of Acquiring Knowledge. 
 
 688. Same — When to be Considered. 
 
 689. Knowledge Acquu-ed Dm-ing Agency. 
 
 690. Agent's Duty to Communicate. 
 
 691. Where Agent's Authority Depends Upon Ratification. 
 
 692. Notice to Attorneys — Breach of Confidence to Disclose. 
 
 693. Executor and Administrator. 
 
 694. Knowledge of Trustee Before Creation of the Trust. 
 
 695. Notice of Torts of Agents and Servants. 
 
 § 672. Notice to Agent is Notice to Principal. — The 
 
 rule of law that charges the principal with notice of every 
 fact coming to the knowledge of his agent, which is con- 
 nected with the business in which the agent is employed, 
 may be tersely expressed thus : Notice to cm agent is notice 
 to the principal} It is generally regarded as constructive 
 notice to the principal ; but it is at least doubtful whether 
 
 1 Astor V. Wells, 4 Wheat., 466; Bracken v. Miller, 4 W. & S., 102; 
 Reed's Appeal, 34 Pa. St., 207; Mechanics' Bank v. Seton, 1 Pet. , 309 ; Jack- 
 son V. Sharp, 9 Johns., 163; Jackson v. Winslow, 9 Cow., 13; Jackson 
 V. Leek, 19 Wend., 339; Bank of U. S. v. Davis, 2 Hill, 451; Fuller v. 
 Bennett, 2 Hare, 402; Sheldon v. Cox, 2 Eden, 224; Sterling Bridge Co, 
 V. Baker, 75 lU., 139.
 
 NOTICE TO AN AGENT. 381 
 
 this is a correct use of the word " constructive," as applied 
 to the law of notice;^ To employ it in this connection is 
 only to introduce confusion in legal terminology, by giving 
 to a Avord a peculiar signification, where it has quite a dif- 
 ferent one when applied to other branches of the same sub- 
 ject. To qualify in this manner the notice which is given 
 through an agent would be to cut off entirely from the 
 possibility of notice a large class of purchasers in cases re- 
 quiring actual notice. Corporations can only act through 
 agents, in the transaction of their business, and there are 
 matters, of which, to affect them, they, as well as individ- 
 uals, must have actual notice, as in case of equities affect- 
 ing negotiable instruments, or secret trusts affecting the 
 title to lands purchased, by the party to be charged with 
 notice.^ AVhether, therefore, the notice by which the prin- 
 cipal is to be affected is actual or constructive depends upon 
 the manner in which it is brouoht home to the agent. If 
 the agent has actual notice, the principal is charged with 
 notice of the same kind. If the agent is constructively 
 notified, so is the principal.' But if we wish to state the 
 rule with greater accuracy, its true meaning may be given 
 by stating it as it is universally understood, that notice to 
 an agent is equivalent to notice to the principal. 
 
 § 673. General Application of the Rule. — "Xotice to 
 an agent is constructive jiotice to the principal" is one 
 of those enunciations of doctrine which is so modified 
 
 1 See Saffron, etc., v. Rayner, L. R., 14 Ch. Div., 406; Ex parte Larkin, 
 id., 566; Boui-sot v. Savage, L. R., 3 Eq., 134; Atterbu^v v. Wallis, 8 
 DeG., M. & G., 454; Timstall v. Trapps, 3 Sim., 301 ; Ncwstead r. Searlos, 
 1 Atk., 265; Suit v. Woodhall, 113 Mass.. 391; Owens v. Roberts, 36 
 Wis., 258; DistiUed Spirits, 11 Wall., 356; Westervelt v. Haff, 2 Sandf. 
 Ch., 98; Hovey v. Blanchard, 13 N. H., 145; Ames v. N. Y. Union Ins. 
 Co., 14 N, Y., 253; Russell v. Sweezey, 22 Mich., 235; Smith v. Denton, 
 42 Iowa., 48 ; First National Bank of Milford v. Town of Jlilford, 36 
 Conn,, 93; Fogg v. Tenn. National Bank, 9 Heisk., 479; Farrington v. 
 Woodward, 82 Pa. St., 259; Wood r. Wan-en, 82 N. Y., 265; ante, ch. 
 I, Constructive Notice. 
 
 ■i Bracken v. Miller, 4 W. & S., 102. See ante, % 31 et seq. 
 
 8 Jones V. Bamford, 21 Iowa, 217; RoUand v. Hart, L. R., 6 Ch., 678.
 
 382 PKINCIPAL AND AGENT. 
 
 in its application to different cases as to raise a doubt 
 whether, in the form in wliich it is usually expressed^ 
 it may fairly be designated as a rule. It is true that, for 
 all the purposes of the business to which the agency applies, 
 the agent stands in the place and stead of the principal, and 
 the Icnowledge which he acquires, in connection with the 
 particular business of the principal, in which such agent is 
 engaged at the time, will be imputed to the principal, whether 
 in fact communicated or not.' 
 
 § 673a. The Effect Where Actual Notice Essential.— 
 There is no serious objection to the statement that notice to 
 an agent is constructive notice to the principal, provided it 
 is not taken to mean that it is only constructive notice, and 
 falls short of actual notice, where actual notice is essential. 
 The distinction between constructive and actual notice has 
 been commented on in a former chapter.- We have there 
 seen that there are circumstances under which notice which 
 is merely a legal inference will not bind, for the reason that 
 the statute declares that only actual notice will suifice.^ It 
 is also true that a purchaser for value of negotiable paper, 
 in the ordinar}^ course of business, before maturity, can only 
 be affected with knowledge of defenses existing in favor of 
 the maker, by actual notice.* But it is not intended in such 
 cases to exclude notice to agents. If actual notice is com- 
 municated to an agent of the party to be bound, under 
 circumstances that would render such notice binding upon 
 the principal for any purpose, it will be binding as actual 
 notice.^ The reason Avliy notice to the agent will bind the 
 
 ' Whitehead v. Wells, 29 Ark. , 99. Notice to the local agent of an in- 
 surance companj'', in connection with the risk assumed on belialf of the 
 company, is notice to his principal. Coolidge v. Charter Oak Life Ins. 
 Co.. 1 Mo. App., 109; Holden v. N. Y. & Erie Bank, 6 Reporter, 692; 72 
 N. Y., 286. 
 
 "^ Ante, oh. I. 
 
 'Musgrove v. Bonser, 5 Ore., 313; Barnes v. McClinton, 3 Pa., 67; 
 Hastings v. Cutler, 24 N. H., 481; Maupin v. Emmons, 47 Mo., 304; 
 Roberts v. Mosley, 64 Mo., 507. 
 
 * Goodman v. Simonds, 20 How., 343; ante, § 80, and cases cited. 
 
 5 Stanley v. Chamberlain, 39 N. J. L., 565.
 
 NOTICE TO AN AGENT. 
 
 383 
 
 principal is that for the purposes of the transaction the two 
 are identical.^ 
 
 § 674. Effect of Notice Depends Upon Nature of 
 Agency. — As we have seen in the next preceding title, that 
 whether the principal is bound by contracts entered into by 
 the agent depends upon the nature and extent of the agency, 
 so does the effect upon the principal, of notice to the agent, 
 depend upon the same conditions. And the great variety 
 of circumstances affecting the relation of principal and 
 agent, with respect to tlie matter under consideration, ren- 
 ders it exceedingly difficult to arrange them under the 
 two heads of agents with general, and agents with special, 
 powers. For Avliether the agent be one exercising general 
 or special authority, it is quite certain that liis agency must 
 have some direct connection with the matter with reference 
 to which notice is given.- As, where one wlio was the agenf^ 
 of a railroad company, and residing in the state of Iowa, 
 became cognizant of the fact that tliere were two towns of 
 the same name in that state, and another agent of the same 
 company, who resided in Illinois, being ignorant of that 
 fact, shipped goods belonging to plaintiff to one of such 
 towns, whicli was the only one he knew of, but which proved 
 not to be the one intended by the consignor, it was held that 
 the company Avas not to be charged with notice, by reason 
 of the knowledge of its Iowa agent, that there were two 
 towns of the same name, so as to render it liable for the 
 
 iSee Hart v. Farmers', etc., Bank, 33 Vt., 253; Porter v. Bank of Rut- 
 land, 19Vt.,425. 
 
 2Blunienthal v. Brainard, 38 Vt., 402; Haywood v. National Ins. Co., 
 53 Mo., 181; Warwick v. Warwick, 3 Atk., 294; Mechanic-s' Bank v. 
 Shaumburg, 38 Mo., 228; Lloyd v. Atwood, 3 De G. & J., (514; Finch v. 
 Shaw, 19 Beav., 500 ; Tybee v. Webb, 6 Beav., 552 ; Abell v. Howe, 43 Vt., 
 403; Hart v. Fann. & Mech. Bank, 33 Vt., 252; Lawrence v. Tncker, 7 
 Greenl., 195 ; Hood v. Fahnestock, 8 Watts, 489 ; Bracken r. Miller, 4 W. 
 & S., 102; Allen v. Poole, 54 Miss., 323; McCormack v. Wheeler, 36 111., 
 114; Pringle V. Dunn. 37 Wis., 449; Roach v. KaiT, 18 Kan., 529; Smith 
 V. Denton, 42 Iowa, 48; Russell v. Sweezy, 33 Mich., 235; Holdenv. N. 
 Y. & Erie Bank, 72 N. Y,, 286; Bierce v. Red Bluff Hotel Co., 31 Cal., 
 160. 
 
 ] l^^u/jf /u
 
 384 PKINCIPAL AND AGENT. 
 
 act of their Illinois agent, as for negligence.' The agency 
 may be express or implied.- But to bind the two parties by 
 the acts of an attorney, the agency for both is not imphed 
 from the fact that but one attorney is employed.^ 
 
 § 675. Executive Officer of a Bank. — Where the cashier 
 of a bank was ex officio a member of the discount commit- 
 tee, in the absence of evidence to the contrary, ^le was pre- 
 hA^'j^ t sumed to have been present at the dehberations of the 
 ^(P^l committee in reference to a bill presented for discount Jand 
 
 any knowledge which he may have had of equities subsist- 
 ino- against such bill was held sufficient to charge the bank 
 with notice thereof.^ It is, however, unnecessary, in general, 
 to find these collateral circumstances, either as legal pre- 
 sumptions or as facts established by evidence, in order to 
 ? charge a banking corporation with notice of equities against 
 paper discounted in the course of its business, when the 
 president, cashier, or other executive officer has knowledge 
 of such equities.^ In the case last cited, the cashier of the 
 bank was also treasurer of the town. Acting as such treas- 
 
 1 Congar v. C. & N. W. E. E. Co., 24 Wis., 157. Notice to a " caller " 
 whose duty it was to call conductors as they appeared on the list was 
 not notice to the company of the incompetency of a particular conductor 
 on such hst. Tlie notice to bind the company should have been given 
 to the train manager. Mich. Cent. E. E. Co. v. Dolan, '62 Mich., 510; 
 Davis V. D. & M. E. E. Co., 20 Mich., 105. But notice to an engineer of 
 defects in machinery held sufficient to render company responsible for 
 the consequences. Nashville E. E. Co. v. Elliott, 1 Cold. (Tenn.), 611. 
 See, also, Hoppock v. Johnson, 14 Wis. , 303 ; Spadan v. Manvel, 2 Daley, 
 263; Weisser v. Dennison, 10 N, Y., 68; Brown v. Bankers', etc., Co., 30 
 Md., 39; Eoach v. Karr, 18 Kan., 529; Wilson v. Conway Fire Ins. Co., 
 4 E. I., 141 ; Grant v. Cole, 8 Ala., 519. 
 
 2 Watson V. Wells, 5 Conn,, 468; Farrington v. Woodward, 82 Pa. St., 
 259. 
 
 ^Fulton Bank v. Canal Co., 4 Paige, 127; Banco de Lima v. Anglo- 
 Peruvian Bank, L. E., 8 Ch. D., 160; In re Marseilles, etc., Co., L. E., 
 7 Ch., 161 ; In re Emphe Bank, L. E., 5 Ch., 358; Espin v. Pemberton, 
 3 De G. & J., 547, 554, 555; Wythes v. Labouchere, 3 De G. & J., 593; 
 Perry v. HoU, 2 De G. & J., 38, 53. 
 
 * Bank of America v. McNeil, 10 Bush, 54. 
 
 5 Bank of New Milford v. Town of New Milford, 36 Conn., 93.
 
 NOTICE TO AN AGENT. 385 
 
 urer, he gave the note of the town to the bank, for the pur- 
 pose of effecting a loan for his own use. As an officer of 
 the bank, having charge of its loans, he accepted the paper, 
 and it was held that his knowledge of the fact that he Avas 
 acting without authority as an olRcer of the town Avas the 
 knowledge of the bank.' 
 
 §676. Notice to Trustees. — So, notice to one of the 
 directors of a bank, he being a member of the discount 
 committee, has been decided to be notice to the banking- 
 corporation ; and that what was sufficient to put him upon 
 inquiry would also charge the corporation with the duty of 
 makiug inquiry in regard to the same matter.- So, also, 
 where R. executed a deed of trust to secure a debt due M., 
 and subsequently executed another deed of trust on the 
 same property, to IST. and I., as trustees, to secure a debt due 
 a bank of which ]Sr. was the attorne}', and I., a director, 
 both the trustees having received notice of the prior incum- 
 brance before the execution of the subsequent one, it was 
 held that notice to them was notice to their principal, and 
 consequently the prior incumbrance should take precedence, 
 notwithstanding the subsequent deed Avas first recorded.^ 
 
 iSee Willard v. Buckingham, 36 Conn., 395. 
 
 2 The Fulton Bank v. Benedict, 1 Hall, 480. 
 
 3 Myers v. Ross, 3 Head (Tenn.), 60. But in order to affect cestuis que 
 trust with notice to trustees, there must be subsisting between them 
 the relation of principal and agent. It was accordingly lield, in a quite 
 recent case, that where the bonds belonging to a railroad company were 
 conveyed in trust to certain parties for the purpose of securing its 
 own bonds, thereafter to be issued and negotiated, notice of defenses to 
 the bonds so held, being brought home to one or more of such trustees, 
 would not bind the holders of the bonds so secured. The decision is 
 based upon the gi-ound that the trustees were the appointees of the com- 
 pany, and not of the cestuis que trust. Johnson County r. Thayer, 5 
 Cent. L. J., 245. See, also, Curtis v. Leavitt, 15 N. Y., 194. But the 
 recent case of Johnson v. Laflin, decided by Judge Dillon, and reported 
 in 6 Cent. L. J., 124 (5 Dill., 65), suggests a modification of the doctrine 
 as laid down in the text. There the agent acted under the authority of 
 a letter of attorney, executed in blank, in transferring certain shares of 
 stock upon the books of the company. At the time the transfer was 
 entered, the acting attorney, with whose name the blank had been filled, 
 
 25
 
 386 PRINCIPAL AND AGENT, 
 
 § 677. Boiiud by Agent's Unlawful Acts.— Whether the 
 agency be general or special, and whatever be the title or 
 designation of the agent, if he has sufficient authority in 
 the premises to contract for the benefit of his principal, that 
 which would affect the validity of such contract, if known 
 to the principal at the time of making it, will have the 
 same effect when known only to the agent.' Thus, where 
 a contract was made by a servant for his master on Sunday, 
 though this fact was unknown to the master, such contract 
 "V^ 1 could not be enforced where it could not have been had it 
 
 knew that the purcliaser, an officer of the bank, was unlawfully using 
 the funds of the corporation to make payment for tlie stock. The nego- 
 tiation for the stock was between the selhng broker and the purchaser, 
 and the transaction was held complete as between the parties, by the 
 transfer of the certificates and the receipt of the money ; so that there 
 was no such relation subsisting between the attorney making the trans- 
 fer and the original seller of the stock as would charge the latter with 
 notice of facts witliiu the knowledge of the former contemporaneously 
 with his action under the power of attoj-ney. Had the facts been known 
 to the broker employed to make the sale, there seems no doubt that the 
 case would have been differently decided. But if the attorney in fact 
 was not the agent of the party by whom tlie blank instrument was exe- 
 cuted, at the very time "he acted, by whose authority did he make the 
 transfer? Tliis opens the question of how far a party is chargeable w^ith 
 notice o£ facts coming to the knowledge of his agent, while acting under 
 written authority executed in blank. This question, however, was not 
 deemed of vital importance to the case, for the reason that the seller had 
 a right to demand its transfer on the books upon the completion of the 
 transaction between himself and the purchaser, and that direct personal 
 notice to him after the payment of the purchase money would have been 
 too late to affect him. It was also decided in this case that share- 
 holders were not bound to take notice of irregulai'ities on the part of 
 directors in respect to the transfer of their shares, and that such share- 
 holders, even though they be directors, in transfeiTing their stock, are 
 not bound to take notice of the books of account of the company — cit- 
 ing with approval, Bargate v. Shortridge, 5 House of Lords Cas., 297; 
 Taylor v. Hughes, 2 Jones & Lat., 24; Ex imrte Bagge re North Coal 
 Co., 13 Beav., 162; Cartmell's Case, 9 Ch. App., 691 ; Hill v. Manchester, 
 etc., 2 Nev. & M., 573; 5 Barn. & AdoL, 874: Haynes v. Brown, 36 N. H., 
 568. See, also, Johnston v. Laflin, 103 U. S., 800. 
 
 'The Distilled Spuits, 11 Wall., 356; Bierce v. Red Bluff Hotel Co., 81 
 Cal., 160,
 
 NOTICE TO AN AGENT. 387 
 
 been entered into on that day with the knowledge of the 
 master.^ So where an agent to sell goods sold with the 
 knowledge that the goods were purchased for an unlawful 
 purpose, the principal would be affected by such knowledge, 
 and could not recover in an action for the price.- * 
 
 § 678. Person Misled by Acts of Principal. — Whatever S\ 
 be the limits upon the authority of the agent, the principal f 
 will be bound by notice to him as to an agent with general ' 
 powers, when the conduct of the principal has been such as 
 to lead to the belief that the agency was general.^ 
 
 § 679. Wife Affected with Husband's Knowledge.— ^^^yf''^ 
 There are cases in which the knowledge of the husband, tJr(iM4 ^ 
 when acting as ao-ent of the wife, has been held to affect 
 her interest in the transaction. As where property was 
 purchased for the wife by the husband acting as her agent, 
 his knowledge that a fraud was being perpetrated was held 
 sufficient to chari^e her with notice of such fraud.* 
 
 § 680. Confineil to Transactions in Which He Is Ac- 
 tive. — But though the husband, by virtue of the marital 
 relation, is a sort of general agent to transact business for 
 his wife, acting without any authority specially conferred 
 by her, the knowledge possessed by him will not affect her 
 with notice in transactions Avith which he has nothing to 
 do.^ And even where a husband received a conveyance to 
 himself and wife, by which they became possessed of an 
 estate by the entirety, it was held that notice to the husband 
 of a prior unrecorded mortgage would not operate as notice 
 to the wife so as to affect her title by survivorship.** 
 
 i Smith V. Sparrow, 4 Bing., 84; Mosley v. Hatch, 108 Mass., 517; Ster- 
 ling Bridge Co. v. Baker, 75 111., 139. 
 
 2 Suit V, Woodhall, 113 Mass., 391. 
 
 3 Keenan v. Missouri Ins. Co,, 12 Iowa, 126. 
 
 * Clark V. FuUer, 39 Conn., 238; White v. King, 53 Ala., 162; Duke v. 
 Bohm, 16 Mmn., 306; Pringle v. Dunn, 37 Wis., 449; Willes v. Greenhill, 
 4 DeG., F. & J., 147, 150. 
 
 5 Pringle v. Dunn, 87 Wis., 449. 
 
 « Snyder v. Sponable, 1 Hill, 567; mpra, % 674, No. 2.
 
 388 FKINCIPAL AND AGENT. 
 
 § 681. Notice to One of Several Agents Snfficient. — 
 
 That there are several agents who act jointly in the conduct 
 of the business, with reference to which it is sought to 
 affect the principal with notice, does not render it necessary, 
 in order to charge the principal, to bring home to all the 
 agents a knowledge of such fact. E'otice to one wiU be as 
 effectual as notice to all.^ There being no difference be- 
 tween the obligation resting upon one of several joint 
 agents, and that resting upon a sole agent, in regard to com- 
 municating facts which come to his knowledge, there can 
 be no difference in the manner in which the possession of 
 such knowledge will affect the principal. Where the prin- 
 cipal is a corporation, and imposes upon its directors collect- 
 ively the duty of managing its affairs and guarding its 
 interests, and one of such directors is guilty of a breach of 
 duty in failing to communicate to the board, when officially 
 assembled, or to the officers of the corporation, the knowl- 
 edo-e which he has obtained in relation to matters in which 
 the corporation is interested, it should be the sufferer by 
 such concealment, rather than an innocent party whose in- 
 terests are involved in the transaction.^ 
 
 § 682. Director of a Bunk.— Accordingly, in a case 
 where one of the directors of a bank had notice of the fraud- 
 ulent perversion from the objects for which they were 
 drawn, of certain bills, and with that knowledge was pres- 
 ent at a meeting of the board where the same bills were 
 presented for discount, his knowledge was properly held to 
 be the knowledge of the bank.^ 
 
 § 683. Corporation Not Affected with Every Fact Known 
 to Directors. — However, the mere fact that a bank director 
 
 1 Fulton Bank v. N. Y. & S. Canal Co., 4 Paige, 127 ; North River Bank 
 V. Aymar, 3 Hill, 263; Willes v. Greenliill, supra; Bank of U. S. v. Davis, 
 2 Hill, 451, 464. 
 
 2 The language of the text must be taken as qualified by § 683a and 
 authorities cited infra. 
 
 3 Bank of United States v. Davis, 2 Hill, 451 ; Nat. Security Bank v. 
 Cuslunan, 131 Mass., 490; Clerks' Savings Bank v. Thomas, 2 Mo. App., 
 367 ; Edwards v. Thomas, id., 282.
 
 NOTICE TO AN AGENT. 389 
 
 is in possession of certain knowledge whicli would prevent 
 his becoming an innocent holder would not affect the bank 
 if the paper should be received there and discounted, with- 
 out his knowledge. It could hardly be his duty to report 
 to his bank every fact coming to his notice, in relation to all 
 the negotiable paper of which he may have any knowledge, 
 where he had received no intimation that such paper would 
 be presented there for discount.^ But some of the cases 
 cited in the note will be found to go much farther, and take 
 the ground that the bank cannot be affected by notice to 
 one of its directors, for the reason that such directors, in 
 their individual capacity, are neither officers nor agents of 
 the corporation. This distinction, however, is not supported 
 by the weight of authorit}^- The best considered cases do 
 not seem to favor the exemption of corporations from the 
 duty of taking notice of facts known to their directors, any 
 further than is here stated.^ 
 
 683a. Notice to Directors of Corporation.— It is not a 
 mere question whether the notice is actually communicated 
 to one or several of the directors, nor even to each of them. 
 The directors, when convened and acting for the corporation, 
 stand to the corporate body in a relation somewhat closer 
 than that of ordinary agency. They are, to all intents and 
 purposes, when acting Avithin the scope of the powers con- 
 ferred by their charter, the corporation itself. As individuals, 
 however, they are mere agents, if they have any individual 
 
 J Louisiana State Bank v. Senecal, 13 La., 525; General Ins. Co. v. U. 
 S. Ins. Co., 10 Md., 517; Farmers' & Citizens' Bank v. Payne, 25 Conn., 
 444 ; Nat. Bank v. Norton, 1 Hill, 572 ; Washington Bank v. Lewis, 22 
 Pick., 24; Hai-tford Bank v. Hart, 3 Day, 491; Housatonic Bank v. Mar- 
 tin, 1 Met., 308; Farrell Foundry r. Dart, 2G Conn., 376; IVHller v. 111., 
 etc., R. Co., 24 Barb., 313: Suit v. Woodhall, 113 Mass., 391. 
 
 2 Smith V. Water Com'rs, 38 Conn., 208; Fogg v. Tennessee Nat. Bank, 
 9 Heisk., 479; Fulton Btink v. Canal Co., 4 Paige, 127; New Hope Bridge 
 Co. V. Phoenix Bank, 3 N. Y., 156; Branch Bank r. Steele, 10 Ala., 915; 
 Holden v. N. Y. & Erie Bank, 72 N. Y., 286 ; North Ri%-er Bank v. Aymar, 
 3 Hill, 262; First Nat. Bank v. Town of Milford, 36 Conn., 93. 
 
 3 Supra.
 
 390 PEINCIPAL AND AGENT. 
 
 authority beyond that of votiDg at the dehberations for 
 tvhich they are convened. Mere casual knowledge of facts, 
 acquired by one of the directors while in pursuit of his 
 private business, with no intimation that they would affect 
 the corporation, would not amount to notice to the corporate 
 body.^ "Where one of the directors of a bank indorsed a 
 note "with knowledge that it was given without considera- 
 tion, this was held insufficient to charge the bank, in dis- 
 counting the paper, with notice of want of consideration, 
 although the indorsing director was present when it was 
 discounted, unless he were constituted an organ of com- 
 munication between the bank and those dealing with it.^ 
 Where the fact in question comes to the knowledge of the 
 director or officer of a corporation when he is not only act- 
 ing unofficially, but is dealing with the company as a 
 stranger, or the position in which he stands brings his indi- 
 vidual interest in conflict with that of the corporation, there 
 is an additional reason for not. imputing his knowledge to 
 the institution he represents. His position, for the purposes 
 of that transaction, is that of a stranger to the corporation.^ 
 But where a fact is communicated to an individual director 
 for the purpose of bringing it to the attention of the corpo- 
 ration, it wiU be effectual, though he negligently or fraudu- 
 lently fails to communicate it.^ And where he acts for the 
 corporation in the transaction of the business in respect to 
 which it is sought to charge it with notice ; as where he, as 
 one of the board of directors, authorizes the discount of a 
 
 iLoomis V. Eagle Bank, etc., 2 Disney (Ohio), 285; Powles v. Page, 
 3 M., G. & S., 16. 
 
 2 Custer V. Tompkins County Bank, 9 Pa. St., 27. 
 
 'Winchester v. Baltimore R. Co., 4Md., 238; U. S. Insurance Co. v. 
 Shriver, 3 Md. Ch., 388; Gen'l Ins. Co. v. U. S. Ins. Co., 10 Md., 527; 
 Commercial Bank v. Cunningham, 24 Pick., 270; Louisiana State Bank 
 V. Senecal, 13 La., 525; Terrell v. Bank of Mobile^ 12 Ala., 502; Washing- 
 ton Bank V. Lewis, 22 Pick., 30; Sawyer's v. Pawner's Bank, 6 Allen, 
 207; Fu-st Nat. Bank v. Christopher, 40 N. J. L., 435. 
 
 *U. S. Ins. Co. V. Shriver, 3 Md. Ch,, 388. See, also, La Farge Ins, 
 Co. V. BeU, 22 Barb., 54,
 
 NOTICE TO AN AGENT. 391 
 
 note procured by fraud, of which he had notice, the bank 
 would be bound as thouHi his knowledge had been com- 
 municated to the entire board.' When the fact in question 
 comes to the knowledge of a director or othei" officer when 
 he is making- authorized oihcial inquiry, or is otherwise 
 engaged officially for his principal, it can be of no conse- 
 quence that he fails to communicate it,- or even that it was 
 not communicated to him for the purpose of informing the 
 corporation. 
 
 § 683b. Notice to Corporations Tlirough Their Exec- 
 utive Officers. — The principal matter that determines 
 whether a corporation may be affected with notice to one of 
 its officers is the nature of the duties of such officer, and 
 whether they are connected Avith the facts brought to his 
 attention. A corporation will alwa^^s be affected when the 
 notice comes to it through an officer within whose special 
 line of duty the matter in question lies.^ But where the 
 duties of the officer served are entirely disconnected with 
 that branch of the business to which the notice relates, it 
 must be held otherwise. When, however, the notice is 
 served upon one who has a general supervision of the busi- 
 ness, embracing the transaction to which the notice relates 
 as well as others, no good reason is apparent why it should 
 not be regarded as notice to the corporation.'' The cashier 
 of a bank is the particular officer who has charge of the 
 
 'National Security Bank v. Cushman, 121 Mass., 490, See, in this 
 connection, Farmers', etc.. Bank ^^ Paine, 25 Conn., 446; Bank of U. S. 
 V. Davis, 2 Hill, 454; North River Bank v. Aymar, 3 Hill, 263; Bank of 
 Pittsburgh v. Whitehead, 10 Watts, 402; Suit v. Woodhall, 113 Mass., 
 391. 
 
 2 New York, etc., R. Co. v. Schuyler, 34 N. Y., 30; Marshall r. Colum- 
 bian Ins. Co., 27 N. H., 157. 
 
 3 Bank of Virginian. Craig, 6 Leigh, 399; Fall River, etc.. Bank i». 
 Sturtevant, 12 Cush., 372; Bank of St. Mary's v. Mumford, 6Ga., 44; 
 Tiffany v. Boatman's Inst., 18 Wall., 375. 
 
 4 Porter v. Bank of Rutland, 19 Vt., 410; Smith v. Board of Water 
 Commissioners, 38 Conn., 208; Bank of Pittsburgh v. Whitehead, 10 
 Watts, 397; Union Mining Co, v. Rocky Mountain Nat. Bank, 3 Colo., 
 349.
 
 392 PRINCIPAL AND AGENT. 
 
 ordinary business of the bank, and for this reason notice of 
 facts affecting its business will bind the corporation.^ So 
 where a cashier was ex officio member of the discount com- 
 mittee, and knew that a stockholder had pledged his stock 
 to secure a debt, after which the latter presented a note for 
 discount at the bank. The note was received by the bank 
 while the cashier knew of the pledge of the stock. The 
 stockholder becoming insolvent, the bank claimed a prior 
 lien on the stock as security, which claim was disallowed 
 upon the principle that the cashier was presumed to have 
 acted with the committee, with knowledge of the fact 
 that the stock Avas pledged, and such knowledge would bind 
 the corporation for which he acted, whether it was commu- 
 nicated to the rest of the committee or not.- The same 
 exception is made in case of an officer dealing with the cor- 
 poration as a customer that applies to directors. When the 
 officer transacts business with the corporation instead of for 
 it, he is supposed to treat with it at arms-length, and not to 
 disclose facts against his own interest.* 
 
 § 684. Joint Purchasers Not Principal and Agent. — 
 The mere circumstance that two persons are jointly inter- 
 ested in a purchase will not estabhsh between them the re- 
 lation of mutual agency, so that notice to one will affect 
 the other, even with respect to the property of which they 
 are joint tenants.^ But when notice is given to one of sev- 
 eral partners in connection with the business of the partner- 
 
 1 Duncan v. Jaudon, 15 Wall., 165; Reynolds v. Kenyon, 43 Barb., 
 585; Gould?;. Cajuga County, etc., Bank. 56 How. Pr., 505; Trenton 
 Banking Co. v. Woodruff, 3 N. J. Eq., 117; Branch Bank v. Steele, 10 
 Ala., 915. 
 
 - Bank of America v. McNeil, 10 Bush, 54. 
 
 3 Barnes v. Trenton Gas Light Co., 27 N. J. Eq., 33. In a recent case 
 decided by the supreme court of Nevada, it was held that Avhere it was 
 necessary to give notice to a corporation which had no legal officers or 
 trustees, a notice given to the owner of all the stock who managed and 
 directed its business was sufficient. Orr Water Ditch Co. v. Reno Water 
 Co. , 5 West Coast Rep. , 666. 
 
 ^Flagg V. Mann, 2 Sumn., 486; Snyder v. Sponable, 1 HiU, 567; 7 id., 
 427.
 
 NOTICE TO AN AGENT. 393 
 
 ship, his copartners will be affected; and this has been put 
 upon the ground of mutual agency.^ 
 
 § 685. The Same Kind of Notice to Principals as to 
 Agents. — Notice to an agent, in order to bind the principal, 
 need not be any more full or circumstantial in its details 
 than would suiBce had it been directly to the principal. 
 Where a subsequent purchaser is to be charged with notice, 
 it is not essential that the agent should be informed of 
 every fact which it is important for the principal to know. 
 It will generally be a good notice if it is sufficiently explicit 
 to put the agent upon inquiry leading to the truth.- 
 
 § 686. To Agent of Agent Not Sufficient.— To have 
 the effect of bringing knowledge home to the principal the 
 notice must be to his agent, and not to any agent or 
 attorney employed by such agent. It was so held where 
 the question arose under the general bankrupt law, in de- 
 ciding whether or not the principal had received a prefer- 
 ence.^ The principal, residing in ISTew York, emplo3''ed an 
 attorney there to collect a sum of money due from a debtor 
 resident in Omaha, Nebraska. For purposes of his own 
 convenience, and without consulting his client, the attorney 
 employed another attorney at Omaha, who, being aware of 
 the debtor's insolvent condition, collected the debt and 
 transmitted the sum collected to the New York attorney, 
 and within two months thereafter the debtor was declared 
 bankrupt. It was held that the Omaha attorney was the 
 agent of the attorney by whom he was employed, and not 
 of the client who ultimately received the money. Hence, 
 the notice of insolvency, not being to the agent of the 
 creditor, he was held unaffected thereby. 
 
 § 687. Place, Manner and Time of Acquiring Knowl- 
 edge. — When at the time of a transaction by one acting in 
 
 1 AVatson v. Wells, 5 Conn., 468. 
 
 2 Barnes v. McClinton, 3 Pa., 67; Fulton Bank v. Benedict, 1 Hall, 
 480 ; ante, § 33 ; Hart v. Farmers' & Mechanics' Bank, 33 Vt., 253. 
 
 3 Hoover v. Wise, 91 U. S., 308; S. C, 3 Cent. L. J., 276; S. G., 14 N. 
 B. R., 264.
 
 394 PKIKCIPAL AND AGEXT. 
 
 the capacit}^ of agent, the recollection of the fact with no- 
 tice of which it is sought to charge the principal is present 
 to the mind of the agent, wheresoever, howsoever or whenso- 
 ever the knowledge of such fact was obtained, such knowl- 
 edge Avill be the knowledge of the principal, provided it 
 come to the agent in a manner that he might communicate 
 it, or act upon it, without being guilty of a positive viola- 
 tion of dutj.^ This doctrine is advanced with some hesi- 
 tancy, not because of any doubt as to its soundness, on 
 principle, or as to its being supported by the best authority; 
 but there has been such a contrariety of opinion expressed 
 upon the subject, by the courts of the different states, that 
 it would be impossible to make any statement of a general 
 rule which will be universally accepted and acted upon. 
 
 § 688. Same — IVhen to be Considered. — Incases where 
 the doctrine announced above is questioned, it is insisted 
 either that the Imoioledrje should he acquired ly the agent, 
 during the agency; ^ or that it should come to him in such a 
 Tnanner, and under such circumstances, that he ina.y he pre- 
 sumed to have communicated it to his principal? There can 
 
 iLe Neve v. Le Neve, 3 Atk., 646; S. C, 2 Lead. Cas. in Eq., Pt. 1, 
 p. 35; Brotherton v. Hatt, 3 Vern., 574; Dresser v. Norwood, 17 C. B., 
 N. S., 466; WiUiams v. Tatnall, 29 111., 553; WUey v. Knight, 27 Ala., 
 336; The Distilled Sphits, 11 Wall., 356; Haa-t v. Farmers' & Mechanics' 
 Bank, 33 Vt., 252; Patton v. Ins. Co., 40 N. H., 375. See, also, Pritchett 
 V. Sessions, 10 Rich. Law, 293 ; Holden v. N. Y. & E. Bank (Ct. of Ap. 
 N. Y., 1878), 6 Reporter, 692. 
 
 ••2 Hood V. Fahnestock, 8 Watts, 489 ; N. Y. Cent. Ins. Co. v. Nat. Prot. 
 Ins. Co., 20 Barb., 468; Smith's Appeal, 47 Pa. St., 128; Mehan v. WiU- 
 iams, 48 Pa. St., 238; Day v. Walmsley, 33 Ind., 145; Blumenthal v. 
 Brainard, 38 Vt., 402; Haywood v. National Ins. Co., 52 Mo., 181 ; War- 
 wick V. Warwick, 3 Atk., 291; Norris v. Le Neve, 3 Atk., 26; Mechan- 
 ics' Bank v. Shaumburg. 38 Mo., 228; Howard Ins. Co. v. Halsey, 8 N. 
 Y., 271 ; McCormack v. Wlieeler, 36 III., 114 ; Houseman v. Mutual Build. 
 &Sav. Ass'n, 81 Pa. St., 256; Lloyd v. Atwood, 3 De G. & J., 614; Tybee 
 V. Webb, 6 Beav., 552; Ashley r. BaUlie, 2 Ves. Sr., 368; Lawrence v. 
 Tucker, 7 Greenl., 195; Abell v. Howe, 43 Vt., 403. 
 
 3 Winchester v. Baltimore R. R. Co., 4 Md., 231 ; La Fai-ge Ins. Co. v. 
 Bell, 22 Barb., 54; Thompson v. Cai'twright, 33 Beavan, 178; Kenedy v. 
 Green, 3 Myhie & K., 699.
 
 NOTICE TO AN AGENT. 395 
 
 be no doubt that when the notice comes to the agent before 
 the relation is established, and the question whether at the 
 time of the transaction as agent the recollection of the fact 
 was present to his mind, depends for its solution upon mere 
 inference, or presumption from his previously acquired 
 knowledge, time is a very important matter for considera- 
 tion. If the fact came to the knowledge of the agent long 
 before the commencement of the agency, it would not be 
 safe to infer that he recollected it when the transaction 
 with the agent took place. And in most of the cases where 
 time is insisted on, this seems to be the consideration oper- 
 ating upon the mind of the court. As in the case of War- 
 wick V. "Warwick,! the agent alleged to have been possessed 
 of knowledge was dead, and there seems to have been no 
 evidence that he recollected the fact, when acting as agent 
 of the party to be charged. So in Day v. Walmsley,- goods 
 were sold to the defendant's wife, by a salesman, who, pre- 
 vious to his employment, had heard in an idle conversation 
 that defendant and wife had separated. There being no 
 better evidence that he knew of the fact of separation at 
 the time of selling the goods, it Avas held that this would 
 not be sufficient to affect plaintiff, the employer of the sales- 
 man, with notice of such fact. So, also, in the case of 
 Bracken v. Miller,^ the knowledge of a secret trust was 
 gained by the attorney seven years before he was emplo^^ed 
 by the party sought to be charged with notice of such trust. 
 And other cases might be cited, where time was a question 
 of real importance in determining the validity of the notice. 
 §689. Knowledge Acquired During Agency.— But in 
 many of those cases in which the doctrine is recognized that 
 iiotice should come to the agent after the relation has been 
 established, an exception is admitted which tacitly concedes 
 that the important matter to prove is that the agent was 
 cognizant of the fact when he acted for his principal, and 
 
 13 Atk., 291. 
 233 Ind., 145, 
 3 4W. &S., 103.
 
 396 PEINCIPAL AND AGENT. 
 
 not that he acquired the knowledge at any particular time. 
 The exceptional cases are those where the transactions fol- 
 low each other so closely that it is regarded as impossible 
 for the agent to have forgotten the first when the second 
 took place. It is therefore held that the agent's knowledge, 
 acquired in the course of the first transaction, would be 
 notice to the principal, though the relation of principal and 
 agent only subsisted between them in respect to the second 
 transaction.^ This is a virtual abandonment of the principle 
 upon which the distinction is founded. 
 
 § 690. Agent's Duty to Communicate. — The restriction 
 of the rule to cases where there is a probability that the 
 agent will communicate the knowledge seems to have had 
 its origin in a total misapprehension of the purposes for 
 which tlie rule was established. It tends to defeat the appli- 
 cation of the doctrine to cases where it is most essential in 
 the promotion of gopd faith and fair deahng. One of the 
 most striking cases of the application of this distinction is 
 that of Thompson y. Cartwright." Here a solicitor acted 
 for both parties in preparing a deed which contained the 
 
 1 Winter v. Lord Anson, 1 S. & S., 434; S. .., 3 Russ., 488; Hars:i-eaves 
 V. Eothwell, 1 Keen, 154; Fogg v. Tennessee National Bank, 9 Heisk., 
 479; Holdenu. N. Y. & E. Bank, 72 N. Y., 286; Ames v. N. Y. Union 
 Ins. Co., 14 N. Y., 253; Hai-t v. Farmers' & Mechanics' Bank, 33 Vt., 252; 
 Abell V. Howe, 43 Vt., 403; Wiley v. Knight, 27 Ala., 336; Pritchett r. 
 Sessions, 10 Eich. (Law), 293; Dunlap v. AVilson, 32 111., 517; Williams 
 V. Tatnall, 29 id., 553; Hovey v. Blanchard, 13 N. H., 145; Patten r. Ins. 
 Co., 40 id., 375; The DistiUed Spii-its, 11 Wall., 356; Fuller %\ Bennett, 
 2 Hare, 394; Atterbury v. WaUis, 8 De G., M. & G., 454; Perkins v. 
 Bradley, 1 Hare, 219; Porter v. Bank of Rutland, 19 Vt., 410; RoUand 
 V. Hart, L. R., 6 Ch., 678-82; Pepper v. George, 51 Ala., 190; G. W. R'y 
 Co. V. Wlieeler, 20 Mich., 419; May v. Borel, 12 Cal., 91; Hodgkins v. 
 Montgomery County Ins. Co., 34 Barb., 213; Fry v. Shehee, 55 Ga., 208: 
 Mountford v. Scott, T. & R., 274; Nixon v. Hammilton, 2 Dr. & Wal., 
 364 ; Perkins v. Bradley, 1 Hare, 219. 
 
 . 233 Beav., 178. See, also, Cove v. Cove, L. R., 15 Ch. Div., 639; 
 Waldy-y. Gray, L. R., 20 Eq., 238; Hiorns v. Holton, 16 Beav., 259; 
 Trail r. Ellis, 16 Beav., 350; Neesom v. Clarkson, 2 Hare, 163; Barnes 
 V. Trenton, etc., Co., 27 N. J. Eq., 33; Winchester v. Raikoad, 4 Md., 
 231.
 
 NOTICE TO AN AGENT. * 397 
 
 usual covenants against prior incumbrances. The same 
 solicitor had previously prepared a mortgage upon the iden- 
 tical property, which mortgage, however, had not been reg- 
 istered. There was no question of the fact being present to 
 the solicitor's recollection at the time of drawing: the second 
 deed, and it was decided that upon the party sought to be 
 charged with notice rested the burthen of overcoming the 
 legal presumption that his agent had communicated such 
 fact. No direct evidence was offered upon this point ; but 
 the court held that the fact that the solicitor was also em- 
 ployed by the party whose interest it vv^as to conceal the 
 prior mortgage was sufficient circumstantial evidence that 
 it was concealed from the principal, and he was therefore 
 unaffected by the agent's knowledge. Leaving out of con- 
 sideration the probable event of its being utterly impossible 
 for the agent to communicate the knowledge in time, the case 
 cited above fairly illustrates the danger of resting the 
 rule upon the presumption that the agent communicates the 
 knowledge of which he is possessed, unless such presumption 
 is conclusive. The doctrine announced in this case is against 
 the weight of authority, both in England and in this coun- » 
 try} 
 
 § 691. Where Agent's Authority Depends Upon Ratifi- 
 cation.— If one without authority assume to act as the agent 
 of another, and the latter take the benefit of the unauthor- 
 ized act, by claiming rights under it, or otherwise ratifying 
 the acts of his self-appointed agent, he must take such ben- 
 
 1 Willard v. Buckingham, 36 Conn., 395 ; Bank of U. S. v. Davis, 2 Hill, 
 451; The Distilled Spirits, 11 Wall., 356; Le Neve v. Le Neve, 3 Atk., 
 646; S. a, 3 Lead. Cas. Eq., Pt. 1, p. 351; Brotherton v. Hatt, 2 Vern., 
 574. But the rule rests upon the duty to communicate. Rolland v. 
 Hart, L. R., 6 Ch., 678; Jones v. Bamford, 21 la., 217; Hewitt v. Loose- 
 more, 9 Hare, 449; Kenedy v. Green, 3 My, & K., 699; Dryden v. Frost, 
 3 My. & Cr,, 670; Tweedale v. Tweedale, 23 Beav., 341; Fuller v. Ben- 
 nett, 2 Hare, 394, 402; Losey v. Simpson, 3 Stockt. Ch., 246; Tucker r. 
 Henzill, 4 Ir. Ch. R., 513; In re Rorke, 13 id., 273; 14 id., 442; Owens 
 V. Roberts, 36 Wis., 258; Suit v. Woodhall, 113 Mass., 391; Bradley v. 
 Riches, L. R., 9 Ch. D., 189-96. *
 
 398 rrJNCiPAL akd agent. 
 
 efit, charged with notice of such matters as appear to have 
 been within the knowledge and recollection of the agent at 
 the time of the transaction.^ In the case cited, the grantor 
 in a ])rior unrecorded conveyance acted as the agent of his 
 creditor in directing the levy of an attachment upon the 
 same property. The creditor, by claiming rights under the 
 levy, ratified the agency, and was charged with knowledge 
 of the prior conveyance, though the fact was never com- 
 municated to him by the agent. So where B., having notice 
 of an incumbrance, purchased in the name of M., whom he 
 afterwards agreed should become the purchaser direct, and 
 M. accordingly paid the purchase money, without notice of 
 the incumbrance, it was held that although he did not em- 
 ploy B., nor knew anything of the purchase until after it was 
 made, yet by his subsequent approval he made B. his agent 
 ah initio^ and was therefore affected with notice.- In gen- 
 eral, such ratification, to bind the principal, must be made 
 with full knowledge ; but when the principal relies on the 
 contract made by his unauthorized agent, as a basis of re- 
 covery, he thereby adopts the contract, and cannot escape 
 the consequences bv showing that he was not fuUy informed 
 of its terms and conditions.' 
 
 § 602. Notice to Attorneys — Breaeli of Confidence to 
 Disclose.— It seems to be quite generally conceded that 
 where knowledge of a fact is acquired by an attorney 
 wliile in the course of the discharge of his duties, under 
 circumstances that would render it a breach of professional 
 confidence for him to communicate the fact to another 
 client, or to take advantage of such knowledge to promote 
 the interests of the other client, the knowledge of the at- 
 torney would not be imputed to his client, from whom it 
 was so withheld.* 
 
 1 Hovey v. Blanchai'd, 13 N. H., 145. 
 
 -Jennings v. Moore, 2 Vern., 609. 
 
 'Henderhen v. Cook, 66 Barb., 21. 
 
 * Hood V. Fahnestock, 8 Watts, 489 ; MoCormick v. Wheeler, 36 HI,, 115.
 
 NOTICE TO AN AGENT. 399 
 
 § 693. Executor and Administrator. — It has also been 
 held that in order to charge an executor or administrator 
 with notice of a fact affecting the interests of the estate of 
 decedent, the knowledge must be acquired after his apjDoint- 
 ment, at least not during the life-time of decedent.^ But 
 under the later and better authorities, both Eno-lish and 
 American, we have seen that this restriction can only oper- 
 ate to weaken the presumption of notice from knowledge 
 previously acquired, and will depend upon the length of 
 time intervening.^ 
 
 § 694. Knowledge of Trustee Before Creation of the 
 Trust. — This rule has been applied, with the restriction 
 as to time, to cases where it was souo;ht to charo-e with 
 notice the cestuis que trust, or beneficiaries in deeds of trust, 
 by proving notice to their trustees.^ The case first cited in 
 the note is one of those in which the general principle is 
 seized upon to negative the inference that knowledge ac- 
 quired by the trustee long before there was any thought of 
 the deed of trust was present to his recollection when he 
 became the trustee, and so leave the principal an avenue of 
 escape from the consequences of his trustee's knowledge. 
 Had the same general restriction been applied to the case 
 of Myers v. Eoss,* the prior incumbrancer would have been 
 defeated in a case where notice of the prior incumbrance 
 was given one day, and the party notified was made trustee 
 in the subsequent deed of trust of the same property on 
 the next. In fact, under a strict adhesion to this restriction, 
 beneficiaries could never be charged with notice of prior 
 incumbrances by bringing home knowledge to their trustees ; 
 for, as they do not become trustees until the execution of 
 the deed by which the trust is created, it would be impossi- 
 
 1 Gold V. Death, Hobart, 92 ; Henry v. Morgan, 2 Binney, 497. 
 
 2 Supra, § 687 et seq. 
 
 3 Willis V. Vallette, 4 Mete. (Ky.), 186; Henry v. Morgan, 2 Bin., 497; 
 WUles V. GreenhiU, 4 De G., F. & J., 147, 150; Myers v. Ross, 3 Head, 
 59 ; supra, § 676. 
 
 4 3 Head (Tenn.), 60 ; supra, § 676.
 
 400 PRINCIPAL AND AGENT. 
 
 ble for them to receive the notice until it had become too 
 late to communicate it with any effect. 
 
 § 695. Notice of Torts of Agents and Servants. — No- 
 tice by which the liabihty of a partj'^ for a tort is fixed 
 may come through the agent, with like effect as when com- 
 municated directly to the principal. As where the superin- 
 tendent of a street railway was notified of the misconduct 
 of an employee of the company toward a passenger, the 
 knowledge thus acquired by the agent was regarded as the 
 knowledge of the principal and was held sufficient to fix 
 the company's Hability for exemplary damages on account 
 of such misconduct, when, after such notice, the act of the 
 employee was approved.' So where a servant had charge of 
 his master's vicious dog, the master having no knowledge of 
 the animal's dangerous disposition, was held liable for in- 
 juries committed by him, upon the ground that the servant's 
 knowledge was equivalent to notice to the master.- So, also, 
 in an action for damages for the burning of plaintiff's prop- 
 erty by sparks escaping from the chimney of defendant's 
 mill, it was held that, in the absence of the mill owner, no- 
 tice of the dangerous condition of the chimney to the fore- 
 man in charge was equivalent to notice to his employer.' 
 
 iMalick V. Tower Grove & Lafayette R. R. Co., 57 Mo., 17. 
 2 Baldwin V. CasseUa, L. R., 7 Ex., 325; ante, § 480i. 
 3Hoyt V. Jeffers, 30 Mich., 181; anfe, § 480fc.
 
 NOTICE BY Alf AGENT. 4:01 
 
 III. KOTICE BY AN AgENT. 
 
 § 696. Has the Same Force as When Given by Principal. 
 
 697. Notice of Dishonor of Comniei-cial Paper. 
 
 698. Notice to Quit. 
 
 699. Written or Verbal. 
 
 700. Effect of Subsequent Ratification. 
 
 701. Notice Unauthorized AVhen Given, Valid Only from Time of Rat- 
 
 ification. 
 
 § 696. Has the Same Force as When Given by Princi- 
 pal. — In most instances where notice is necessary to fix the 
 liabilit}^ of a party, or where such liabihty may be altered, 
 modified or discharged by notice, such notice may be com- 
 municated by an agent, -with the same efi'ect as when given 
 by the principal. In order to determine the validity of a 
 notice given by an agent, it is often an important matter 
 of inquiry whether the giving of the notice is within the 
 scope of the agent's powers. The same principles that 
 govern the giving of notice to an agent so as to bind his 
 principal^ will not always apply to the notice given hy an 
 agent so as to bind the party notified. For the purpose of 
 affecting a purchaser with notice of any defect of title or 
 secret equity with respect to the thing purchased, it is not 
 always necessary to establish the relation of principal and 
 agent between his informant and the vendor. It is in most 
 cases sufficient to prove that the information was commu- 
 nicated by some one whose situation, or relations to the 
 parties, were such as to render it incumbent upon the pur- 
 chaser to heed the warning.^ ISTevertheless, one contemplat- 
 ing a purchase may disregard mere idle and vague rumors 
 respecting the property, which have no authoritative foun- 
 dation whatever. 
 
 § 697. Notice of Dishonor of Commercial Paper. — For 
 reasons peculiar to the law governing negotiable instru- 
 ments, and which are entirely disconnected with the law of 
 
 1 Ante, II, Notice to an Agent. 
 ^Ante, § 27 e^ seg. 
 26
 
 402 PRINCIPAL AND AGENT. 
 
 agency, notice of the dishonor of a note or bill, when given 
 by any one of the parties to such instrument who had be- 
 come Hable thereon, may be taken advantage of by the 
 others.^ It seems, also, that notice of dishonor may be 
 given by any party to a bill,^ without regard to his own 
 liability. Eut where such notice is permitted to be given 
 effectually, by one not contingently liable as indorser or 
 drawer, the notice is supported upon the ground that the 
 party giving it acted as the agent of the party whose duty 
 it was to give notice.' It is quite certain, however, that an 
 agent in whose hands the paper has been placed for pres- 
 entation may give notice of its dishonor, either in his own 
 name, or as agent of the real holder.^ 
 
 § 698. Notice to Quit. — But when an estate or right is 
 to be determined or aifected by notice to the party in whom 
 the same is vested, whether such notice be stipulated for by 
 contract or be required by law, it must come from the party 
 who, by law or the terms of the contract, is clothed with 
 the power of terminating the estate, or affecting the right 
 in this manner, or from his duly authorized agent? Of this 
 character are notices to quit, from landlord to tenant. The 
 reasons why the tenant could not safely respond to a notice 
 to quit from an unauthorized person are so plain as not to 
 require explanation. He is entitled to such notice as he may 
 act upon with the assurance that the landlord desires to 
 terminate the tenancy, and this can only be by a notice 
 coming from some one with authority from the landlord 
 himself ; ^ although it has been held unnecessary, where such 
 
 1 Chapman V. Keane, 3 Ad. & Ell., 193; Jameson v. Swinton, 2 Camp., 
 373; Batchelor u. Priest, 13 Pick., 399, See § 703, ch. X. 
 
 23 Kent's Com., 108. 
 
 8 2 Daniel on Negot. Inst., §991; Mt. Pleasant Bank v, McLeran, 26 
 la., 306; Glasgow v. Pratte, 8 Mo., 336. 
 
 *Bank of State of Mo. v. Vaughan, 36 Mo., 90; Fulton v. McCracken, 
 18 Md., 528; Burke v. McKay, 2 How.. 66; Woodthorpe v. Lawes, 2 M. 
 &W., 109. See § 714 ef seg. 
 
 5Goodtitle v. Woodward, 3 B. & Aid., 689, 
 
 « Right V. Cuthell, 5 East, 491.
 
 NOTICE BY AN AGENT. 403 
 
 notice was given by an agent of the landlord, that the ten- 
 ant should have evidence, satisfactory to himself, that the 
 one assuming to act as agent was authorized to give the 
 notice.' 
 
 § 699. Written or Yerbal. — As to the manner of giving 
 notice to quit, this will be more fully treated in another 
 chapter;- but where written notice is not required when 
 given by the landlord in person, verbal notice will be equally 
 good from the agent.""* 
 
 § 700. Effect of Subsequent Ratification. — There does 
 not seem to be entire harmony between the authorities as 
 to the curative effect of ratification upon notice given by 
 one falsel}'' assuming to act as agent of the landlord. As a 
 general rule, subsequent ratification, as we have seen, when 
 made with knowledge of all the circumstances, will render 
 binding upon the principal either the acts of an unauthor- 
 ized agent or the unauthorized acts of an agent.* The same 
 principle will apply to the acts of an agent in giving notice 
 to quit, so far as it is calculated to bind the landlord who 
 ratifies it ; but whether such subsequent ratification should 
 render the notice retroactive, so as to bind the tenant, raises 
 quite a different question. In some of the cases, however, 
 it seems to be held that even a suit founded upon such 
 notice will be sufficient ratification to render the notice 
 good though given by one who acted without authority.® 
 But both the weight of authority and the better reason are 
 the other way. In the case of Right v. Cuthell," where the 
 power of determining a lease by notice was in three per- 
 sons, to be exercised jointly, only two of whom signed the 
 notice, it was decided not to be good, and being a notice 
 
 1 Roe V. Pierce, 2 Camp., 96; Brahn v. Jersey City Forge Co., 38 N. J. 
 L., 74. 
 
 2 Ante, ch. Vm, part III. 
 
 3 Roe V. Pierce, 2 Camp., 96. 
 
 < Ante, §§ 667, 668. 
 
 sGoodtitle v. Woodward, 3 B. & Aid., 689; Roe v. Pierce, 2 Camp., 99. 
 
 6 5 East, 491.
 
 404: PKINCIPAL AXD AGENT. 
 
 which the tenant was to act upon at the time, a subsequent 
 ratification by the other person would not render it valid by 
 relation. The notice was held bad for uncertainty, as the 
 tenant would not know whether to quit or not until after 
 the ratification. 
 
 § 701. Notice Unauthorized When Given, Valid Only 
 from Time of Ratification. — This principle would apply 
 with still greater force where the landlord is required to 
 give notice for a stated number of days. In such case the 
 prescribed time should elapse, not only subsequent to the 
 giving of the notice and the ratification, but also between 
 notice of such ratification and the time fixed for quitting. 
 "Where the notice is unauthorized when given, it can only 
 be considered valid from the time it is ratified by the prin- 
 cipal.^ And though in a recent American case it was held 
 not to be necessary that the agent should have express 
 authority, in order to bind the tenant by notice, yet such 
 authority should be at least inferred from the concurrence 
 of the principal; and if the giving of the notice was an 
 unauthorized act, a subsequent assent on the part of the 
 landlord would not operate by relation to render it good.^ 
 
 iDoe V. Walters, 10 Bam. & Cres., 626; Doe v. Goldwin, 2 Ad. & Ell., 
 143. 
 2Brahn v. Jersey City Forge Co., 38 N. J. L., 74.
 
 CHAPTEK X. 
 
 NOTICE OF DISHONOR OF COMMERCIAL PAPER, 
 
 I. By Whom Given. 
 II. To Whom Given. 
 
 III. Time of Giving Notice. 
 
 IV, jManner and Mode. 
 V. Waiver and Excuse. 
 
 I. By Whom JS^gtice May be GrvEir. 
 
 i 702. Generally it Must be by Holder. 
 
 703. By Any Party to the Instrument. 
 
 704. Criticism of Authorities by Judge Story. 
 
 705. Party Discharged Becomes a Stranger. 
 
 706. Party Not Notified Not Immediately Discharged, 
 
 707. Doctrine Declared by Chitty. 
 
 708. Notice Given by Party Before Received. 
 
 709. General Acceptance of the Above Doctriae. 
 
 710. Notice by Acceptor. 
 
 711. By Acceptor Supra Protest. 
 713. By Drawee of BiU. 
 
 713. By Maker of Note. 
 
 714. By an Agent. 
 
 715. By Agent for Collection, or by Notary. 
 
 716. Holder, to Give Notice, Need Not be Owner. 
 
 717. By Successive Agents, to Each Other. 
 
 718. Signing Wrong Name Wni Not Affect Notice from Proper Party. 
 
 719. Otherwise Where Attorney Has No Authority by Party Whose 
 
 Name is Used. 
 
 720. Authority to Give Notice Imi^lied. 
 
 721. Holder as Security May Give Notice. 
 
 722. Notice from Stranger Adopted by Holder. 
 
 723. Party Giving Notice May Have No Knowledge at Timeii 
 
 724. Notice by Executor. 
 
 725. By Assignee in Bankruptcy. 
 
 726. When by the Bankrupt. 
 
 727. By Guardian or Ward. 
 
 728. By Married Woman.
 
 40G NOTICE OF DISnOXOK OF COMMEKCIAL PAPEK. 
 
 §702. (jieuerallj' it Must be by Holder. — In general, 
 the notice of dishonor of negotiable paper comes in the fii-st 
 instance from the holder at the time of demand and refusal 
 of payment, or presentment for acceptance, and refusal by 
 the drawee to accept.^ It has, indeed, been laid down as a 
 rule, that in order to bind antecedent parties, the notice 
 should, in every instance, come from the holder in whose 
 hands the instrument was dishonored.- The doctrine an- 
 nounced in this case was approved by Lord Eldon in the 
 subsequent case of Ex parte Barclay.^ The reasons given for 
 thus deciding the latter case were, substantially, that the 
 holder was the only one who could rely upon the others for 
 payment, and, consequently, notice from one who was not in 
 a position to avail himself of the Hability of an antecedent 
 party, could not authoritatively advise the party notified 
 that he was held to the terms of his contract. In other 
 words, if A. were the holder of a bill, acceptance of which 
 was refused, and B. was his immediate indorser, in case no- 
 tice of the dishonor was given by B. to the drawer, A. could 
 not avail himself of such notice in order to hold the drawer, 
 because B. would have no authority to say to the drawer 
 that A. rehed upon him for payment. 
 
 § 703. By Any Party to the Instrument. — But directly 
 in conflict with the authorities cited above, are the cases of 
 Jameson v. Swinton,* and Wilson v. Swabey,^ in both of 
 which the doctrine is laid down, that notice coming from 
 any antecedent party to the instrument wiU enable the 
 holder or subsequent indorser to hold the party notified 
 either as draAver, or upon his contract of indorsement. Upon 
 the authority of the cases last cited. Lord Denmaj^ took oc- 
 casion to review Tindal v. Brown,^ and expressly overruled 
 
 1 Walker r. Bank of the State, 8 Mo., 704 ; Gindrat v. Mechanics' Bank, 
 7 Ala., 324. 
 
 2 Tindal v. Brown, 1 T. R., 164. 
 37 Ves., 597. 
 
 <2 Camp., 373. 
 *1 Stark., 34. 
 • 1 T. R., 164.
 
 BY WHOM GIVEN. iUT 
 
 the case, declaring the doctrine therein promulgated not to be 
 good in law.^ In this case the plaintiff had indorsed a bill 
 upon which defendant was antecedently liable, and the in- 
 dorsee of plaintiff was the holder of the bill when it reached 
 maturity. The holder left the bill in the hands of plaintiff's 
 clerk with instructions to present the same, and, in case of 
 non-payment, to give notice of dishonor. The bill was duly 
 presented, payment refused, and the clerk, instead of giving 
 notice to the plaintiff and to the defendant, in the name of 
 the holder, by w^hom he was authorized to act, simply gave 
 notice to defendant, in the name of the plaintiff — the last 
 indorser. Plaintiff subsequently took up the bill, and in 
 the action brought, it was held, in opposition to the rule 
 announced in the overruled case, that the notice was suf- 
 ficient, notwithstanding it was not from the holder at the 
 time such notice was given. 
 
 § 704. Criticism of Authorities by Judge Story. — Mr. 
 Bay ley, in his work on Bills,^ attempts to limit the applica- 
 tion of the above doctrine to cases where the party from 
 Avhom the notice comes is himself bound to pay the bill or 
 note. Judge Story cites Mr. Bayley with approval, and 
 objects to the breadth of statement employed in most of 
 the cases, as intimating that notice by parties would be suf- 
 ficient, regardless of the fact that they might not themselves 
 be liable to pay the same, or be entitled to reimbursement.' 
 Says the learned author in this connection, " Suppose, for 
 example, a second indorser should give notice to a first or 
 third indorser, having received none himself, and therefore 
 not being bound to pay the note, and the holder has not 
 given any notice whatsoever to any of the indorsers, the 
 question in such a case would arise, w^hether the notice was 
 available in favor of the holder. Suppose the last indorser 
 has received no notice from the holder, and is therefore dis- 
 charged, would notice by him to the prior indorsers be 
 available for the holder ? " 
 
 1 Chapman v. Keane, 3 Ad. & Ell., 193. 
 
 2 Bayley on BUls, 248. 
 
 3 Story on Prom. Notes, § 303, citing Bayley on Bills (5th ed.), 254.
 
 408 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 § 705. Party Discharged Becomes a Stranger. — It is 
 
 conceded on all sides that the notice must emanate from a 
 part}'' to the bill, and many of the earher authorities, both 
 English and American, hold that it must come from a party 
 who can give the drawer or indorser his immediate remedy 
 on the bill; otherwise it is merely a historical fact.' But 
 the rule that notice must come from a party to the bill is 
 only confused by insistence upon the doctrine that notice 
 cannot be effectually given to a prior indorser by a subse- 
 quent indorser who has been discharged. For when an in- 
 dorser has been discharged from hability on the bill or note 
 by failure to give him the requisite notice, he ceases to be a 
 party, and becomes a stranger to the instrument.- 
 
 § 706. Party Not Notified Not Immediately Discharged. 
 Nevertheless, the indorser who has not been notified of the 
 dishonor of the paper upon which he is liable, is i^ot, ij^so 
 facto, discharged, as appears to be assumed in the suppositi- 
 tious case stated by Judge Story." He must not only, in 
 order to be discharged, not have received notice of the dis- 
 honor, but the time must have elapsed within which he 
 could have been legally notified. Until then his contingent 
 liability continues, and, according to the rule laid down by 
 Lord Denman,* as well as numerous English and American 
 decisions made in pursuance thereof, he may give notice to 
 all prior parties, and bind them as effectually as though he 
 had been the holder at the time of dishonor, or had been 
 duly notified previous to his giving notice to prior parties.* 
 
 § 707. Doctrine Declared by Chitty. — In his valuable 
 work on Bills of Exchange, Mr. Chitty deduces from the 
 authorities the rule that the notice will be by the proper 
 person if given by any person Avho is a party to the bill, and 
 
 > Lord Ellenborougb, in Stewart v. Kennett, 2 Camp., 177; Hopes v. 
 Alder, 6 East, 16; Stanton r. Blossom, 14 Mass., 116. 
 
 -2 Daniel on Negot. Inst., 42. 
 
 3 Supra, § 704. 
 
 * Chapman v. Keane, supra, § 703. 
 
 5 Riddle v. MandevUle, 5 Cranch, 322; Crocker v. Getcliell, 23 Me., 
 392; Stafford v. Yates, 18 Jolms., 327; Glasgow v. Pratte, 8 Mo., 336; 
 Glasscock v. Bank of Mo., id., 443; Batchelor v. Priest, 13 Pick., 399.
 
 ' BY WHOM GIVEN. 409 
 
 •who would be entitled to reimbursement after paying the 
 same; and the object of the notice being to enable the par- 
 ties to have recourse to the maker, acceptor or drawer, it 
 makes no difference from which one of the parties the no- 
 tice is received, it wiU inure to the benefit of aU antecedent 
 parties, and render any further notice from them unneces- 
 sary.^ Tiie same view is taken by Mr, Thompson,- by whom 
 it is regarded as settled that notice from any party to the 
 bill will be sufiicient if it conforms in other respects to the 
 requirements of the law, and when given by the last in- 
 dorser to the first, or to the drawer, wiU inure to the benefit 
 of all intermediate parties.^ 
 
 § 708. Notice Given l)y Party Before Received. — Where 
 an indorser notifies prior parties before he has himself re- 
 ceived formal notice, the later authorities seem to regard his 
 action a^ a virtual waiver of formal notice, or an acknowl- 
 edgment of his own liability, and consequently, should the 
 notice never afterwards be given him, this will not affect 
 the hability of any prior party to whom he gave notice be- 
 fore the expiration of the time within which he should have 
 been notified of the dishonor. The notice being from a 
 proper party fixes the liability of the party to whom it is 
 given, and he can only be released by the voluntary act of 
 each of the parties to whom he is liable. It will not be 
 contended, however, that any party to negotiable paper 
 who has been discharged for the want of notice can, by 
 subsequent waiver, reassume his hability on the instrument 
 so as to affect antecedent parties with notice which he gives 
 after his own discharge.^ 
 
 § 709. General Acceptance of the Above Doctrine.— 
 Notwithstandmg the modifications by which some of the 
 
 1 Chitty on BiUs, 237. 
 
 2 Thompson on Bills, sec. IV. p. 496. 
 
 3 See, also, 2 Daniel on Negot. Inst., § 987; Stafford t>. Yates, 18 
 Johns., 327; Batchelor u. Priest, 12 Pick., 406; Stanton v. Blossom, 14 
 Mass., 116; Renshaw v. Tiiplett, 23 Mo., 213; Swayze v. Britton, 17 
 Kans., 627. 
 
 * See post, § 776 et seq.
 
 410 NOTICE OF DISHONOR OF COMMEBCIAL PAPER. 
 
 earlier English and American authorities have sought to re- 
 strict tlic application of the doctrine, that any party to a 
 note or bill may give the notice by which an antecedent 
 party may be held liable to subsequent parties, the English 
 cases by which the doctrine was first laid down have been 
 followed in both countries, until it has become quite firmly 
 established.^ 
 
 § 7 10. Notice by Acceptor. — Following these authorities, 
 it has been decided that where a bill of exchange was 
 dishonored when presented for payment, notice of such dis- 
 honor, given by the acceptor, would bind the prior parties 
 to whom the same was given, as effectually as though it had 
 come from the holder, or a subsequent iudorser, although, 
 in the same case, the principle was fully recognized that 
 notice from a mere stranger would not be sufficient.^ 
 
 § 711. By Acceptor Supra Protest. — So, in the case of 
 Union Bank v. Grimshaw,'^ where the acceptor, on the day 
 the bills matured, addressed a letter to the drawer inform- 
 ing him that they mu^t go back protested, this was held 
 sufficient notice to bind the drawer, and would inure to the 
 benefit of any subsequent party who sought to avail himself 
 of it. So, also, in the case of Konig v. Bayard,^ Chief Jus- 
 tice Marshall recognized the validity of notice from an 
 acceptor, siqyra protest. 
 
 § 712. By Drawee of Bill. — Upon the same principle as 
 the foregoing, it was held, in Mt. Pleasant Bank v. McLeran,^ 
 that where the bill was not accepted, notice from the drawee 
 would be as effectual as from a party liable to pay the same, 
 and entitled to reimbursement from the prior party notified. 
 This case, however, involved the further question of agencij 
 in the party giving the notice, though such notice might 
 
 1 See cases cited infra; Butler v. Duval, 4 Yerg., 265; Bank of United 
 States V. Gocldard, 5 Mason, 366. 
 ^Brailsford v. Williams, 15 Md., 150; Rosher v. Kieran, 4 Camp., 87. 
 3 15 La., 321. 
 n Pet., 250. 
 5 26 Iowa, 306.
 
 BY WHOM GIVEN. 411 
 
 well have been held good without it appearing that the 
 drawee, from whom it came, acted as the agent of the 
 holder, for whose benefit such notice was given. 
 
 § 713. By Maker of Note. — It was also decided, in the 
 case of Glasgow v. Pratte,^ which is cited with evident ap- 
 proval in First National Bank v. Ryerson,^ that w^here a 
 negotiable promissory note was dishonored, the maker could 
 give notice thereof so as to bind prior indorsers, and render 
 them liable to subsequent parties to the instrument. 
 
 § 714. By an Agent. — A notice given by the agent of 
 any party to the bill or note will be as effectual as if given 
 by the party himself.* KvA such agent need not have been 
 empowered expressly for the purpose of giving such notice. 
 Where the instrument has been intrusted to a banking in- 
 stitution for collection, the notice of dishonor may be given 
 by the bank, or any of its officers.* And this principle has 
 been carried to the extent of imposing the giving of notice 
 of dishonor upon such banks, as a duty implied from the 
 nature of the undertaking on their part to collect. For 
 non-feasance in this particular, the holder has been held en- 
 titled to maintain assumpsit against the bank.^ 
 
 §715. By Agent for Collection, or by Notary.— Any 
 agent authorized to demand payment may give the notice, 
 whether such agent be authorized and empowered thereto 
 by written letter of attorney or by verbal appointment.® 
 The notary in whose hands the instrument has been placed 
 for presentment or demand, and with authority to formally 
 
 1 8 Mo., 336. 
 
 2 231a., 508. 
 
 sCoppertliwaite v. Sheffield, 1 Sanf., 416; Hazlett r. Poultney, 1 Nott 
 &, M., 466; Tunno v. Lague, 2 Johns. Cas., 1 ; Bank of Cape Fear v. Sea- 
 well, 2 Hawks (N. C), 560; Mead v. Engs, 5 Cow., 303; Payne v. Patrick, 
 21 Tex., 680; Greene v. Farley, 20 Ala., 322; Bank of State v. Vaughan, 
 36 Mo., 90. 
 
 ♦Freeman's Bank v. Perkins, 18 Me., 292; AVorden v. Nourse, 36 Vt., 
 
 756. 
 
 sSmedes v. Utica Bank, 20 Johns., 372. 
 6 Sussex Bank v. Baldwin, 17 N. J. L., 487.
 
 412 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 protest the same in case of dishonor, is such a holder of the 
 paper as may give the notice, whether the instrument is 
 one requiring formal protest or not.^ 
 
 § 7 1 6. Holder, to Give Notice, Need Not be Owner.— 
 Even where it is required that the notice shall come from 
 tlie holder, it is not necessary that he shall be the owner of 
 the paper dishonored. Where he is. merely a holder for col- 
 lection, as we have seen, he may not onl}^ give notice to 
 antecedent parties, but it becomes his duty to do so, and 
 the same degree of diligence is demanded of him as though 
 he were a holder for value.'^ And it is equally incumbent 
 upon such agent to give due and timely notice to his prin- 
 cipal of the default of payment or failure to accept, as it 
 would be upon one holder for value to give notice to another. 
 The agent or holder for collection has the same time within 
 which to give notice to the real holder, as to any other 
 party antecedently liable.' 
 
 § 717. By Successive Agents, to Each Other. — As the 
 notice may be transmitted from the holder, through the 
 several indorsers, in the inverse order of their indorsements, 
 back to the drawer, aud each of said parties is entitled to 
 the same time, and may employ the same means, and give 
 the notice in the same maimer and mode as it may be given 
 by the holder, however circuitous such a course of trans- 
 mission may be, and however much time may be needlessly 
 consumed by such course ; * so, where the paper is sent for 
 collection to several banks in succession, each may give 
 notice of dishonor to the antecedent bank from which it was 
 
 IBank of Utica v. Smith, 18 Johns., 230; Fulton v. Maccracken, 18 
 Md., 528; Rennick v. Robbins, 28 Mo., 339; Bui-ke v. McKay, 2 How. 
 (U. S.), 66; Chiu-ch v. Barlow, 9 Pick., 547; Howai-(l v. Ives, 1 Hill, 263. 
 
 2Bartlett v. Isbell, 31 Conn., 296. 
 
 3Lawsonv. Farmers' Bank, 1 Ohio St., 206; Scott v. Lifford, 9 East, 
 347; Langdale v. Trimmer, 15 id., 291. 
 
 <Triplett v. Hunt, 3 Dana, 126; Renshaw v. Triplett, 23 Mo., 213; 
 "Whitman v. Farmers' Bank, 8 Porter (Ala.), 258 ; Ogden v. Dobbin, 2 
 Hall, 112; McNeill v. Wyatt, 3 Humph., 125; HiU v. Planters' Bank, 
 id,, 670; Eagle Bank v. Hathaway, 5 Met., 313.
 
 BY WHOM GIVEN. 413 
 
 received, and so on, in like manner, and with the same 
 effect, as they might were they holders for value.^ 
 
 § 718. Signing Wrong Name Will Not Affect Notice 
 from Proper Party. — Mere error in giving the name of 
 the principal, by whose authority the agent acts in notify- 
 ing the party, will not vitiate the notice. As where the 
 plaintiff, who was the actual holder of the instrument when 
 it was dishonored, gave directions to his attorney to notify 
 defendant, who was a prior indorser, in the name of the 
 last indorser, and the attorney accordingly addressed a 
 letter to the defendant, in which he used this lancruao-e : " I 
 am instructed by Mr. B. (the indorser) to give you notice," 
 etc., signing the letter with his own name, the notice was 
 held good, as coming from the real holder.^ 
 
 § 7 1 9. Otherwise Where Attorney Has No Authority 
 by Party Whose Name is Used. — However, in Harrison v. 
 Euscoe,^ where the attorney gave notice to a prior indorser, 
 but stated therein, b}^ mistake, that he was instructed to do 
 so by one from whom he had no authority whatever, either 
 to demand payment or to give notice, it was held that, 
 although this mistake would not vitiate the notice alto- 
 gether, it would, nevertheless, have the effect of changing 
 the status of the party by whose authority the notice was 
 in fact given, so that he would occupy the same position 
 towards the party notified as would have been occupied by 
 the party from whom the notice pm^ported to come, had he 
 authorized it; and any defense which would have been 
 available against such party, in favor of the one receiving 
 the notice, would be equally good against the party at whose 
 instance the notice was given. 
 
 § 7 20. Authority to Give Notice Implied. — Where a bill 
 of exchange is placed in the hands of an attorney or agent, 
 with authority to present the same for acceptance, the 
 authority to give notice of a failure or refusal to accept is 
 
 » aode V. Bayley, 13 M. & W., 51. 
 ZRogerson v. Hare, W., W. & D., 65. 
 »15M. &W., 231.
 
 414: NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 implied from the authority to present, and it has been held 
 that such notice may be given by the attorney or agent in 
 his own name.' 
 § 721. Holder as Security May Gire Notice. — It is not 
 
 even essential to the right of a holder of negotiable paper 
 that he should be a liolder for the purpose of collection or 
 presentment. One who holds the instrument as collateral 
 security for a debt, not only may, but properly should, give 
 notice of its dishonor, so as to preserve the rights of his 
 debtor against antecedent parties.- 
 
 § 722. Notice from Stranger Adopted by Holder. — The 
 rule that notice from a mere stranger to the instrument mil 
 not be binding upon the parties to whom it is given, is con- 
 siderably weakened by the liberal manner in which the 
 courts seem inclined to construe the authority of agents by 
 whom notice of dishonor is frequently given. It has been 
 held, even where the person giving the notice was a total 
 stranger to the bill, but who represented that he was the 
 real holder, that such notice was rendered valid and binding 
 upon the parties to whom the same was given, by the real 
 holder's subsequent ratification of the acts of the pretended 
 holder." A case can hardly be imagined where the circum- 
 stances attending the act of intermeddling by the self-styled 
 holder, or a pretended agent, would be resented by the re- 
 fusal of the party so signally benefited to adopt the act 
 which was necessary to save him from pecuniary loss. 
 
 §723. Party Giving Notice M.ay Have No Knowledge 
 at Time. — It is of no consequence, as affecting the rights 
 of the parties, that the person giving the notice has not, at 
 the time, either knowledge or information of the fact that 
 the paper has been dishonored. If the language of the 
 notice is sufficiently positive and certain, and its statements 
 are borne out by subsequent developments, it matters not 
 how the person sending the notice gained the knowledge 
 
 1 Woodthorpe v. Lawes, 2 M. «& W., 109. 
 
 2 Peacock v. Parcel, 14 C. B., N. S., 728. 
 sLysaght v. Bryant, 2 Carr. & Kir., 1016.
 
 BY WHOM GIVEN. 415 
 
 imparted by the notice, nor whether he knew it at all. This 
 doctrine is fairly illustrated by the case of Jennings v. Rob- 
 erts.^ Here the bill had been indorsed by defendant to 
 plaintiff, and by the latter to a country bank. It was ac- 
 cepted, and payable in London. On the day it fell due, 
 plaintiff saw the manager of the country bank, by whom 
 he was informed that the bill would be back from London 
 in the morning. On the same day, this information was 
 communicated by plaintiff to defendant, with a demand for 
 the money to meet it. Subsequently it transpired that the 
 manager did not know, at the time of giving the informa- 
 tion, that the bill had been dishonored ; but such proving to 
 be the case, and the bill being returned on the following 
 day, it was held that his want of knowledge did not vitiate 
 the notice, so long as the fact communicated proved true. 
 
 § 724. Notice by Executor. — In case of the death of the 
 holder, or other party from whom the notice should emanate, 
 it should be given by his executor or administrator within 
 a reasonable time after appointment, in case of the latter.^ 
 But where one of several joint owners dies, the notice 
 should be given by a survivor or his agent.* 
 
 § 725. By Assignee in Bankruptcy. — Where the holder 
 has been declared bankrupt, the notice should primarily be 
 given by the assignee. If it falls due subsequent to the 
 assignment, the assignee will be governed by the same rules 
 as to time as parties holding in their own right; but if it is 
 dishonored before it comes to his hands, he would probably 
 be allowed a reasonable time after the assignment within 
 which to give notice. 
 
 § 7 26. When by the Bankrupt. — As the banki-upt holder 
 stands in privity with the assignee, has an interest in the 
 note or bill, and represents the interests of his own estate 
 until the selection or appointment of an assignee, notice 
 
 1 29 Eng. L. & Eq., 118. 
 
 '-' White V. Stoddard, 11 Gray, 258; Story on Prom. Notes, § 304. 
 
 3 Evans v. Evans, 9 Paige, 178.
 
 41G NOTICE OF DISnONOK OF COMMERCIAL PAPER. 
 
 from the bankrupt, prior to such appointment, and probably 
 prior to the assignment, would be valid.^ 
 
 § 727. By Guardian or Ward. — If the holder be an in- 
 fant, or other person under guardianship, notice from either 
 guardian or ward would be sufficient. 
 
 § 728. By Married Woman. — Where the holder is a 
 feme sole at the inception of the instrument, but marries be- 
 fore its maturity, notice of dishonor should be given by her 
 husband, or by her, with his consent, express or implied ; 
 but notice sent by her would probably be available without 
 direct proof of consent on the part of the husband, even 
 where the common law disabilities of married women still 
 prevail.- And where the note is given to a, feme covert, the 
 rule will probably be the same in regard to notice.' 
 
 1 Story on Prom. Notes, § 305. 
 
 2Burrough v. Moss, 10 B. & C, 558; McNeilage v. Halloway, 1 B. & 
 Aid., 318; Chitty on Bills, 23, 24, 26. 
 sphUliskii'k v. PluckweU, 2 M. & S., 893.
 
 TO WHOM GIVEN. 417 
 
 II. To Whom Given. 
 
 § 729. To Drawers and Indorsers — Eeason for Rule. 
 
 730. Drawer of BiU. 
 
 731. Should Not be Waived by Agent. 
 733, When Not Entitled to Notice. 
 
 733. Drawn Upon Partnership by Member of Finn. 
 
 734. Indorser. 
 
 735. Need Not be Indorser for Value. 
 
 736. May be from Any Subsequent Party. 
 
 737. Notice of Partial Dishonor. 
 
 738. Indorsers of Over-due Paper. 
 
 739. Illustration of Above. 
 
 740. Paper Re-issued by Indorser. 
 
 741. Purchase at Indorser's Request — Notice Unnecessary. 
 
 742. Transfen-er by Delivery Not Entitled to Notice. 
 
 743. Notice to Agent. 
 
 744. Example of Authority to Receive Notice. 
 
 745. Authority May be Imjilied. 
 
 746. Question of Fact. 
 
 747. Agent witli General Authority. 
 
 748. Appointed Prior to the War. 
 
 749. Example Where Authority Not Implied. 
 
 750. Not Implied from Authority to Indorse. 
 
 751. Notice to Partners. 
 
 752. Indorsement During Partnership. 
 
 753. After Dissolution. 
 
 754. To Agent of One of the Partners. 
 
 755. To Surviving Partner. 
 
 756. Exception as to Partners — Manner of Service. 
 
 757. Joint Indorsers Not Parties. 
 
 758. Agency Not Implied from Joint Indorsement. 
 
 759. Consequences of Failure to Notify Both Joint Indorsers. 
 
 760. Assumption of Authority by One, for All, Binds Him. 
 
 761. Circumstances Admitting Notice to Joint Indorsers. 
 
 762. Joint Administi-ators Cannot Tie Their Hands. 
 
 763. Notice to Personal Representatives. 
 
 764. How Notified by Letter. 
 
 765. Sufficient When Addressed to Deceased Indorser. 
 
 766. Left at Last Dwelling-place of Deceased. 
 
 767. Addressed to Indorser Known to be Dead. 
 
 768. To One of Several Personal Representatives. 
 
 769. To Assignee in Bankruptcy or to Bankrupt. 
 
 770. Before Selection of Assignee. 
 
 27
 
 418 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 § 771. Bankruptcy of Acceptor No Excuse, 
 
 772. IMight be to Bankrupt After Assignment. 
 
 773. To Infant Party. 
 
 774. MaiTied Woman. 
 
 775. Drawer or Indorser Insane. 
 
 §729. To Drawers and Indorsers — Reason for the 
 Rule. — The parties who are entitled to notice of the dis- 
 lionor of a bill or note may be classed under the general 
 description of all those xoho have hecome liahle thereon, either 
 as drawers or indorsers. One of the reasons why they are 
 entitled to such notice is, that it is implied as a condition of 
 their undertaking. The other is, that upon paying and tak- 
 ing up the dishonored instrument, they will be entitled to 
 reimbursement at the hands of those antecedently liable. 
 The right which the drawer or indorser has, when there has 
 been a default of payment by the drawer of a bill or the 
 maker of a note, to discharge his own liability to subsequent 
 parties by payment and resort to prior parties, is one which 
 the law merchant guards by requiring that he shall receive 
 prompt notice of the happening of the event which may 
 change the nature of his contingent liabilit}'" to that which 
 is certain and fixed. The most efficacious method of secur- 
 ing this notice is that adopted by the law, of discharging 
 from liability on the instrument all such parties to whom it 
 is not given in due tirae.^ 
 
 § 730. Drawer of Bill. — Where a bill of exchange is 
 drawn in good faith, upon the custodian of funds of the 
 drawer, or against a party who has authorized the draft, or 
 who rests under legal obligation to honor it, the drawer has 
 not only a right, as against the drawee, to have the same 
 paid, but as he has undertaken to answer to any subsequent 
 party that it will be so paid ; and while the bill is on the 
 market, he treats it as an adjustment pro tanto of accounts 
 between the drawee and himself, he has an equal right, as 
 against the holder at maturity, to prompt information, in 
 case payment is refused. And what may be said of pay- 
 
 ' See cases cited infra.
 
 TO WHOM GIVEN. 419 
 
 raent is equally true of acceptance, where the bill is so 
 drawn as to require presentment for that purpose.^ 
 
 § 731. Should Not be Waived Iby Agent. — The case of 
 Grosvenor v. Stone - illustrates the importance of a punctil- 
 ious insistence upon this right. Plaintiff drew a bill upon 
 a banker who had authorized the draft for the benefit of 
 defendant. The bill was accepted by the drawer, with funds 
 in his hands to meet it. After acceptance and before the 
 maturity of the bill, the acceptor became bankrupt, and the 
 bill was, through mistake, paid for the honor of one not a 
 party thereto. There was a failure to give notice of dis- 
 honor to plaintiff, who nevertheless allowed judgment to go 
 against him by default, and then sought to hold defendant, 
 for whose use the draft was drawn. It was held that the 
 circumstances under which the bill was drawn entitled 
 plaintiff to notice of its dishonor, and though he acted as 
 defendant's agent in the transaction, he should not have 
 waived his right to notice, to the prejudice of his principal, 
 and hence could not recover. 
 
 § 732. When Not Entitled to Notice. — Where, however, 
 the drawer has no good reason to believe that the draft will 
 be honored, as when he knows there are no funds in the 
 hands of the drawee, who is under no obligation to pay, or 
 where he has himself intercepted the funds remitted for 
 that purpose ; ' or where the maker has made an assignment 
 of all his property to the indorser;'' or the indorser has 
 otherwise received full indemnity from the maker or ac- 
 ceptor; ^ or the drawer knows when he draws the bill that 
 the drawee is bankrupt, he is not entitled to notice from 
 either holder or indorser.® 
 
 1 Grosvenor v. Stone, 8 Pick., 79. 
 
 2 8 Pick., 79. 
 
 3 Miser v. Trovinger, 7 Ohio St., 281 ; Commercial Bank v. Hughes, 17 
 Wend., 94. 
 
 *Bond V. Farnham, 5 Mass., 170; Barton v. Baker, 1 S. & R., 334; 
 Jlechanics' Bank v. Griswold, 7 Wend., 165. 
 
 5 Rhett V. Poe, 2 How. (U. S.), 457. 
 
 6 Durham v. Price, 5 Yerg., 300.
 
 420 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 § 733. Drawn Upon Partnership l)y Member of Firm. — 
 
 It has also been held, where the bill was drawn upon a part- 
 nership by one of the partnei's, that, as each member was 
 presumed to have full knowledge of whatever concerned 
 the partnership affairs, and the drawer could have no action 
 at law against his copartners upon the dishonored bill, he 
 was not entitled to notice.^ 
 
 § 734. Indorser. — For the same reasons that operate in 
 favor of the drawer of a bill of exchange, an indorser of a 
 bill or note, who has passed the instrument by an unquali- 
 fied indorsement, is also entitled to notice of its dishonor, 
 and upon failure of notice is released from liability to sub- 
 sequent parties.^ 
 
 §735. Need Not he Indorser for Talne. — This right 
 exists in favor of each indorser of a negotiable instrument, 
 who has a right to resort to antecedent parties, whether 
 they be indorsers for value or have merely received and 
 transferred by indorsement the bill or note to a subsequent 
 party for collection.^ 
 
 § 736. May be from Any Snbseqnent Party. — But this 
 right to notice does not exist in every instance in favor of 
 any party, as against any particular subsequent party, ex- 
 cept the holder. The drawer of a bill, or the first of any 
 number of indorsers of a bill or note, may be bound by 
 notice directly from the holder, although all intermediate 
 parties are discharged for the want of notice.^ The mani- 
 fest reason of this is that no one can have an}-^ interest in 
 fixing the liability of subsequent parties, while each is in- 
 terested in seeing that antecedent parties are not discharged. 
 The general and most prudent course, however, is for the 
 
 1 Fuller V. Hooper, 3 Gray, 3S4; Gowen v. Jackson, 20 Johns., 176. 
 
 2 Infra, § 735 et seq. 
 
 3 McNeill V. Wyatt, 3 Humph., 125; Scott v. Lifford, 9 East, 347; But- 
 ler v. Duval, 4 Yerg., 265; Clode v. Bayley, 12 M. & W., 51; Seaton v. 
 Scovill, 18 Kan., 435; Thillman v. Gueble, 32 La. An., 260; Braley to 
 Buchanan, 21 Kan., 555. 
 
 * 2 Daniel on Negot. Inst., § 995; Cardwell v. Allen, 38 Gratt., 157.
 
 TO WHOM GIVEN. 421 
 
 party giving the notice, to notify all the prior parties whose 
 residences or places of business are known to him.^ 
 
 § 737. Notice of Partial Dishonor. — It does not always 
 follow that an indorser is comj)letely discharged from lia- 
 bility, where, from failure of notice of partial dishonor of a 
 negotiable note bearing his indorsement, he is partially dis- 
 charged. As where the note was payable by instalments, 
 falling due at different periods, it was held that the notice 
 should have been given upon failure to pay each instal- 
 ment, at the time it fell due, precisely in the same manner 
 as though the several sums were evidenced by separate 
 notes. ISTotice being given of the failure to pay the final 
 instalment, this was held sufficient to fix the indorser's lia- 
 bility 2JT0 tanto, though he was clearly discharged with 
 respect to those of the dishonor of which no notice had 
 been given. ^ 
 
 § 738. Indorser of Over-dne Paper. — The authorities 
 are not in perfect accord as to the right of an indorser of 
 negotiable paper which, at the time of indorsement, was 
 past due, to notice. The doctrine is announced in Gray v. 
 Bell ^ and Van Hoesen v. Yan Alstyne,^ that indorsers of 
 over-due paper are not entitled to notice of its dishonor, 
 beyond such as would arise from the bringing of a suit 
 within a reasonable time, which might extend to several 
 months. In the latter case three months was regarded as 
 a reasonable time. But notwithstanding the views expressed 
 in these two cases, the current of authority seems to be de- 
 cidedly against the exception therein contended for. In- 
 dorsers after maturity, as well as indorsers of paper due at 
 sight or on demand, sustain the same relations to each 
 other, and to other parties, in regard to the matter of notice, 
 as indorsers of time paper, before maturity, with the single 
 
 iHutz V. Karthause, 4 Wash. C. Ct., 1; Williams v. Bank of United 
 States, 2 Pet., 96. 
 
 2 Eastman v. Turman, 24 Cal., 379. 
 
 3 3 Rich., 71. 
 
 < 8 Wend., 75.
 
 422 KOTICE OF DISUONOK OF COilMEECIAL FAPEK. 
 
 exception that they have a right to insist upon the exercise 
 of diligence on the part of the holder in demanding pay- 
 ment. Such indorsement is regarded as equivalent to draw- 
 ing a new bill, or making a new note, payable at sight or 
 on demand.^ 
 
 § 739. Illustration of Above. — In rendering the opin- 
 ion of the court in Colt v. Barnard,^ where the note had 
 been negotiated subsequent to its dishonor, Shaw, C. J., 
 uses the following language : " If the indorser is liable 
 at all on such indorsement, it is in virtue of the law merchant, 
 which creates a conditional hability to pay, if the maker, on 
 presentment, shall neglect or refuse to pay, and seasonable 
 notice of such dishonor is given to the indorser. It is very 
 clear that a promissory note is negotiable after it falls due, 
 as well as before. Each indorsement is in the nature of a 
 new draft, by which the holder orders the maker to pay 
 the contents to the indorsee. * * * All the reasons which 
 require a demand and notice, in any case, to charge the in- 
 dorser, apply to this. There is the same reason for prompt 
 notice, namely, that the indorser may take measures to 
 secure payment if the note is dishonored on presentment." ^ 
 
 § 7 40. Paper Re-issued by Indorser. — However, where 
 a party has paid and taken up the instrument upon w^hich 
 he was liable as indorser after maturity, and his liability, 
 
 1 Light V. Kingsbury, 50 Mo., 331 ; Thompson v. Williams, 14 Cal., 
 160 ; Bebee V. Brooks, 12 id., 808 ; Jones v. Middleton, 29 la., 188 ; McKewer 
 V. Kirtlaud, 33 la., 348; Colt v. Barnard, 18 Pick., 260; Greely v. Hunt, 
 21 Me., 455; Bishop v. Dexter, 2 Conn., 419; Bei-ry v. Robinson, 9 Jolms., 
 121 ; Branch Bank v. Gafney, 9 Ala., 153; Hart v. Eastman, 7 Minn., 74; 
 Leavitt v. Putnam, 3 N. Y., 494; Lockwood v. Crawford, 18 Conn., 361 ; 
 Dwight V. Emerson, 2 N. H., 159; Kirkpatrick v. McCullough, 3 Humph., 
 171 ; Adams v. Torbet, 6 Ala., 865; Atwood v. Hazelton, 3 Bailey (S. C), 
 457; Com-se v. Shackleford, 2 Nott & McC, 283; Shelby v. Judd, 24 
 Kan., 161; Sawyer v. Brownell, 13 R. I., 141; Bemis v. McKenzie, 13 
 Fla., 557; Graul v. Strutzel, 53 la., 713. 
 
 218 Pick., 260. 
 
 3McKinney v. Crawford, 8 S. & R., 351; Rugely v. Davidson, 2 Mills' 
 Const. R., 33; Moody f. Mack, 43 Mo,, 210; Davis v. Francisco, 11 id., 
 672.
 
 TO WHOM GIVEN. 423 
 
 as well as that of other parties, has been fixed by due notice 
 of dishonor, and he re-issnes the paper, he will not be enti- 
 tled to notice of a subsequent dishonor.^ The reason for 
 this distinction is that the indorser's conditional liability 
 grows out of his contract of indorsement, and not out of 
 the re-issue of the instrument. His hability as indorser was 
 fixed by notice of tlie first default of payment, and notice 
 of demand and .non-payment, after he had again put the 
 paper in circulation, would be as useless as notice to the 
 maker of a promissory note. 
 
 § 741. Purchase at Indorser's Request — Notice Un- 
 necessary. — So where the indorser, subsequent to the dis- 
 honor of the note, persuaded the holder to purchase it, 
 notice of the subsequent dishonor was held to be unneces- 
 sary, as the purchaser had a right to infer, from the interest 
 manifested by the indorser, that his liability had already 
 been fixed by notice.'- 
 
 § 742. Transferrer by Delivery Not Entitled to Notice. 
 It is not enough to entitle one to notice of the dishonor of 
 commercial paper, as an indorser, that the instrument dis- 
 honored has passed through his hands, and, by reason of its 
 non-payment, he has been called upon to reimburse his 
 transferee. He may have transferred the paper by mere 
 delivery, and bound himself, by an independent contract, to 
 answer for its prompt payment. To be entitled to notice, 
 the party transferring negotiable paper must do so hy reg- 
 ular indorsement, so that all subsequent parties may be in- 
 formed of the interest he has in its ultimate fate.' 
 
 §743. Notice to Agent. — Notice of dishonor may be 
 given to an agent of the party to be charged, in the same 
 manner, and with like effect, as it may be given to the party 
 
 1 St. Jolin V. Roberts, 81 N. Y., 441; Williams v. Matthews, 3 Cow., 
 252; Libby v. Pierce, 47 N. H., 314; 2 Dan. on Negot. Inst., § 997. But 
 see Montgomery, etc., R. R. Co. v. Ti-ebles, 44 Ala., 255, where this doc- 
 trine seems to be doubted. 
 
 2 Libby v. Pierce, 47 N. H., 309. 
 
 3 Van Wart v. Woolley, 3 Bai-n. & Cres., 439.
 
 424 KoricE OF dishonor of commercial paper. 
 
 in person, provided the authority of the agent extends to 
 the receipt of notices of this sort.^ 
 § 744. Example of Authority to Receive Notice. — 
 
 Where E., by letter of attorney, constituted F, his agent 
 and attorney, general and special, with full powers for and 
 in the name of his principal, or in his own name and for his 
 own use, to make, indorse, draw, accept and negotiate bills, 
 notes, etc., the letter stating, in conclusion, " that it was to 
 be taken and understood in its fullest and most comprehen- 
 sive sense and meaning," and F. made his own note, pay- 
 able in bank, and indorsed it in the name of his principal, 
 this letter of attorney was held to authorize the attorney to 
 receive notice of the dishonor of the note so indorsed, so as 
 to fix his principal's liability to the holder or subsequent 
 indorser.- 
 
 § 745. Authority May be Implied.— In order to render 
 notice, served upon an agent, valid and binding as notice to 
 the principal, it is not essential that the agency should be 
 created by letter of attorney. The authority of the agent 
 may be implied as well as express. And if the circumstances 
 are such as to warrant the implication that the relation of 
 principal and agent subsists between the party entitled to 
 notice, and the one to whom it is given, it will operate as 
 effectually to charge the principal as though the agent had 
 been expressly authorized.^ 
 
 § 74(>. Question of Fact. — In "Wilkins v. Commercial 
 Bank,^ the agent, whose power of attorney had exj)ired by 
 limitation, was still in the habit of receiving letters addressed 
 to his principal, who called at the office of the agent for his 
 mail. Notice of dishonor of a bill of which the principal 
 
 iSee ch. IX, sec. 674, part II, Notice to an Agent; also, cases cited 
 infra; "Wilkins v. Commercial Bank, 6 How. (Miss.), 217; Fassin v. Hub- 
 bard, 55 N. Y., 471 ; Cross v. Smith, 1 M. & Sel., 545. 
 
 2 Wilcox V. Eouth, 9 Sm. & Marsh., 476; Smith v. Thatcher, 4 B. & 
 Aid., 200. 
 
 3 Wilkins v. Commercial Bank, 6 How. (Miss.), 217 ; Hesters v. Petro- 
 vic, 1 Rob. (La.), 119; Wilson's Executrix v. Senier, 14 Wis., 380. 
 
 «6How. (Miss.), 217.
 
 TO WHOM GIVEN. 425 
 
 was an indorser was left for liim at the office of the agent, 
 as usual. The agent had no recollection of either receiving 
 the notice or dehvering it to his principal. Under these 
 circumstances it was held that the implication of agency 
 was a question of fact for the jury, and if found to exist, 
 the notice so served was sufficient to bind the principal. 
 
 § 747. Agent with Gsiieral Authority.— So, in Hesters 
 V. Petrovic,^ where the indorser was absent from home, and 
 had left an agent in charge of his plantation, with author- 
 ity to collect for him and furnish all necessary supplies for 
 his plantation, the notice of dishonor being served upon 
 such agent, was held sufiicient to bind the principal. 
 
 § 748. Appointed Prior to the War. — Notwithstanding 
 the interruptions of commercial relations which follow the 
 outbreak of a war, and w^hich prevent the citizens or sub- 
 jects of one of the belligerents from carrjang on business, 
 either by themselves or then* agents, within the territory of 
 the other belligerent, it is a well recognized doctrine in such 
 cases that agents appointed prior to the war may act so as 
 to bind their principals after the commencement of hostil- 
 ities.^ It was accordingly held, where an agent was consti- 
 tuted prior to the late civil war in this country, with 
 authority to receive notice of the dishonor of commercial 
 paper indorsed by his principal, that notice might be effect- 
 ually served upon such agent after the commencement of 
 hostilities, though his principal was then domiciled within 
 the enemies' lines.^ 
 
 § 749. Example Where Authority Not Implied.— IS'ev- 
 ertheless, it is not every species of agency that will author- 
 ize the service of notice of the dishonor of commercial 
 paper on the agent, for the purpose of fixing the liabihty 
 
 1 1 Rob. (La.), 119. 
 
 2 Buchanan v. Curry, 19 Johns., 137; U. S. v. Grossmayer, 9 Wall., 72; 
 Ward V. Smith, 7 Wall., 447; Conn v. Penn, 1 Pet. C. Ct., 496; Dennis- 
 ton V. Imbrie, 3 Wash. C, Ct., 396; Paul v. Christie, 4 Harris & McH., 
 161 ; Robinson v. Int. Life As. Soc, 43 N. Y., 54. 
 
 3 Hubbard v. Matthews, 54 N. Y., 43.
 
 4:26 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 of the principal as indorser. The agent may have exten- 
 sive powers under a letter of attorney, and still not be the 
 proper person to receive notice of the dishonor of a bill or 
 note. As where one held a letter of attorney from one of 
 the stockholders of a bank authorizing him to receive and 
 sign receipts for all dividends on his stock, to vote as his 
 proxy, to deposit money in said institution, and draw checks, 
 to lodge promissory notes, and to sign acceptances of bills 
 of exchange for his principal; this extensive grant of powers 
 would seem to be sufficiently comprehensive to include 
 everything essential to the credit of the principal in dealing 
 with negotiable instruments ; but it was held that the power 
 conferred was sjjecial, and did not include, either expressly 
 or by impUcation, authority to receive notice of the dis- 
 honor of commercial paper, upon which the principal was 
 liable as indorser; hence, notice given to such attorney 
 would not bind his principal.^ 
 
 § 750. Not Implied from Authority to Indorse. — So it 
 was held, where the agent was duly authorized and em- 
 powered to indorse for the principal, that this did not imply 
 authority in such agent to accej)t notice of dishonor, even 
 of a bill or note, indorsed pursuant to such authority;^ but 
 this case can hardly be followed, so long as we admit that 
 the authorization of the agent may be implied as well as ex- 
 press. If the notice of dishonor might not be given to the 
 agent "who indorsed the instrument, without further inquiry 
 as to his authority to accept notice, it is difficult to imagine 
 a case where this power is not expressl}^ granted, that w^ould 
 admit of the principal's being bound by notice given to his 
 agent. 
 
 § 751. Notice to Partners. — "Where the bill or note is 
 drawn or indorsed b}^ two or more persons who are engaged 
 in business as partners, and the draft or indorsement is 
 made by them acting in their partnership capacity, they 
 
 1 Louisiana St. Bank v. Ellery, 4 Mart., N. S. (La.), 87. 
 
 2 Valk V. Gaillard, 4 Strob. (S. C), 99. See, also, Wilcox v. Routh, 9 Sm. 
 «& Marsh., 476.
 
 TO WHOM GIVEN. 427 
 
 thereby become jointly and severally liable, as upon otlier 
 partnership contracts, and a notice of non-acceptance or 
 non-payment, served upon either, will be sufficient to bind 
 them both.^ 
 
 §752. Intlorsement During Partnership. — In order 
 that the liability of both partners may be fixed by a notice 
 served upon one of them, it is essential that the draft or in- 
 dorsement should have been made during the continuance 
 of the copartnersLhip, or at least in connection with the 
 partnership business ; but it is not necessary that the part- 
 nership relation should continue until the maturity and dis- 
 honor of the instrument and the service of the notice.- 
 
 § 753. After Dissolution. — So a partnership has been 
 held bound by such notice after dissolution, when it was dis- 
 solved by the outbreak of the civil war, and one of the 
 members of the late firm was, at the time the notice was 
 given, living within a hostile state/ 
 
 § 754. To Agent of One of the Partners. — It has been 
 held, also, where a dissolution of partnership took place 
 after the partners had indorsed a note, that notice of its 
 subsequent dishonor might be given to the agent of one of 
 them.* 
 
 § 755. To Surviving Partner. — So, also, where one of 
 the partners died after the obligation was incurred, it was 
 held that notice to the surviving partner would bind the 
 personal representatives of the deceased.'* 
 
 1 Gowan v. Jackson, 20 Jolms., 175 ; Porthouse v. Parker, 1 Camp., 82 ; 
 Story on B., §§ 299, 305; Story on Prom. Notes, § 308; People's Bank v. 
 Keech, 26 Md., 521; Fourth National Bank v. Heuschen, 53 Mo., 207: 
 Brown v. Tm-ner, 15 Ala., N. S., 832; Hubbard v. Matthews, 54 N. Y., 
 50; Slocomb v. Lizardi, 21 La. An., 355. 
 
 -Coster V. Thomason, 19 Ala., N. S., 717; Slocomb v. Lizardi, 21 La. 
 An., 355; Griswold v. Waddington, 16 id., 484; Clarke v. Morey, 10 
 Johns., 69; Fourth National Bank v. Heuschen, 52 Mo., 209. 
 
 3 Hubbard v. Matthews, 54 N. Y., 43. 
 
 * Brown v. Tui-ner, 15 Ala., N. S., 832. 
 
 5Dabney v. Stidger, 4 Sm. & Marsh., 749.
 
 428 NOTICE OF DISHONOB OF COMMEKCIAL PAPER. 
 
 § 756. Exception as to Partners — Manner of Serv- 
 ice. — In Hume v. Watt,^ an exception is made as to the 
 validity of notice to bind partners when served upon one, 
 and such service vras held to bind neither, because one of 
 the partners resided in the place where the note Avas dis- 
 honored, and where the party resided who gave the notice. 
 Instead of giving him personal notice, it was sent through 
 the mail to the other partner, who was a non-resident of the 
 place, and it Avas not received until several days after the 
 time within which it should have been personally served 
 upon the resident partner.- 
 
 § 757. Joint Indorsers Not Partners. — Where, how- 
 ever, the joint drawers or indorsers of the bill or note do not 
 sustain towards each other, in the transaction, the relation 
 of partners, the rule is quite different, and the notice of 
 dishonor should be given to each, as all are equally entitled 
 to notice.' 
 
 § 758. Agency Not Implied from Joint Indorsement. — 
 Where notice has been given to one of such joint indorsers, 
 there is nothing in the nature of the relations existing be- 
 tween thein^ with resjDect to the instrument by which they 
 are bound, that will authorize one to accept or waive serv- 
 ice of notice for his co-indorser or indorsers, so as to bind 
 them, unless by him or them especially authorized so to do. 
 The mere fact of their having joined in the draft or in- 
 dorsement will not amount to a presumption or implication 
 of mutual agency, by reason of w^iich one may be bound, 
 in any way, by the acts or admJssions of the others.'* 
 
 § 759. Consequences of Failure to Notif^^ Both Joint 
 Indorsers. — And where the contract of indorsement, or 
 the draft, is strictly joint in its nature, the consequences of a 
 
 15 Kan., 34. 
 
 ^Seepos^, rV. 
 
 3 Sayre v. Fi'ick, 7 W. & S., 383; Bank of IT. S. v. Beirne, 1 Gratt., 234. 
 Contra, see Dodge v. Bank of Kentucky, 2 A. K. Marsh., 610. 
 
 <Shepard v. Hawley, 1 Conn., 369; Willis v. Green, 5 HiU, 232; 
 Miser v. Trovjnger, 7 Ohio St., 281.
 
 TO WHOM GIVEN. 429 
 
 failure to give notice to one of the joint drawers or indorsers 
 will not be confined to the discharge from liability of the 
 one to whom such notice is not given. Their contract 
 being joint and not several, the discharge of one would dis- 
 charge all. So that, not only would the failure of notice 
 release those not notified, but would also discharge those to 
 whom notice was actually given.' 
 
 § 7 GO. Assumption of Authority l)y One, for All, Binds 
 Him. — Nevertheless, circumstances might arise where a 
 joint obligor would not be discharged from liability on such 
 a contract, by a failure to notify some one or more of his 
 co-obligors. As where, upon notice being given to him, he 
 assumed to act for his co-parties, in waiving or accepting 
 notice. Though it is quite clear that if he acted without 
 authority, the others would not be bound, yet it would be 
 supporting him in the perpetration of a fraud, to allow that 
 he might take advantlge of the consequences of his own 
 misrepresentation. Even where no fraud was apparent in 
 such transaction, the doctrine that renders a pretended agent 
 personally hable for the contracts entered into without suffi- 
 cient authority to bind his principal, might be interposed, 
 and the party actually notified held for the entire amount 
 of the dishonored paper, as though he were a several 
 indorser. 
 
 § 761. Circumstances Admitting Notice to Joint In- 
 dorsers. — In the case of Willis v. Green,- where one of two 
 joint indorsers of a note died, and the survivor took from 
 the maker a bond and warrant of attorney, by way of 
 security or indemnity, and had collected thereon nearly the 
 amount of the note, it was held to be an admission that 
 proper steps had been taken to charge both indorsers. 
 
 § 762. Joint Administrators Cannot Tie Their Hands. 
 But, notwithstanding one of such joint parties may by his 
 
 I People's Bank v. Keech, 26 Md., 521; State Bank v. Slaughter, 7 
 Blackf., 133; Bank of Chenango v. Root, 4 Cow., 126; Wood v. Wood, 
 16N.Y., 438. 
 
 ^ Supra, % 758.
 
 430 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 action in the premises estop himself from denying that the 
 proper steps have been taken to tix the Uability of all the 
 parties, the personal representatives of a deceased indorser 
 cannot so tie their own hands. It was accordingly held that 
 a subsequent promise by two of three joint administrators 
 of a deceased indorser, to pay the note, where there had 
 been a partial failure of notice, would not operate as a 
 waiver of irregularities calculated to render the service of 
 the notice insufficient.' 
 
 § 763. Notice to Personal Representatives. — In the 
 event of the death of a drawer or indorser, due notice 
 to his personal representatives will be sufficient ; and where 
 the holder has notice of the appointment and qualification 
 of an administrator or executor, when the note or bill is 
 dishonored, such representative is entitled to the same notice 
 as should have been given the indorser or drawer, were he 
 living at the time of dishonor.- 
 
 § 764. How Notified by Letter. — Where, however, the 
 holder and the representatives of the party to be notified 
 reside in different places, so that notice may properly be 
 transmitted through the mail, and the holder cannot, by the 
 exercise of reasonable diligence, ascertain the names of such 
 representatives, the}^ may be notified by a letter which is 
 not addressed to them by their names. In such a case, or 
 where the administrator of an intestate indorser or drawer 
 has not been appointed, the notice will be sufficient if ad- 
 dressed to "the personal representatives" of deceased.' 
 
 § 765. Sufficient When Addressed to Deceased In- 
 dorser. — So, where the notary in whose hands the note was 
 placed for the purpose of demand, and, in case of default of 
 payment, notice of dishonor, being ignorant of the death 
 
 1 Cayuga County Bank v. Bennett, 5 Hill, 236. 
 
 2 Oriental Bank v. Blake. 22 Pick., 206; Stewart v. Eden, 2 Cai., 121; 
 Massachusetts Bank v. Oliver, 10 Cush., 557; Smalley v. Wright, 40 N. 
 J. L., 471. 
 
 3 Boyd V. Orton, 16 Wis., 495; Boyd v. City Savings Bank, 15 Gratt., 
 501.
 
 TO WHOM GIVEN. 431 
 
 of tlie inclorser, addressed the letter containing the notice 
 to such indorser, which notice in due time came to the hands 
 of his personal representatives, the notice was held sufficient 
 to bind the estate of the decedent, as though he had per- 
 sonally received the notice prior to his decease.^ 
 
 § 766. Left at Last Dwelling-place of Deceased. — So, 
 also, where the indorser died at sea ten days prior to the 
 maturity of the note, but his death was unknown to the 
 holder of the note until long after its maturity and dis- 
 honor, a notice left at his last dwelling-place in Xew York 
 could not be impeached for not beiug given to the proper 
 party.2 
 
 § 767. Addressed to Indorser Known to he Dead.— And 
 it has been held, where the holder knew of the death of the 
 indorser, but upon diligent inquiry failed to have the names 
 of the personal representatives, that notice sent inclosed in 
 a letter directed to the indorser himself would be sufficient.^ 
 
 § 768. To One of Several Personal RepresentatiTes. — 
 "Where the notice was sent to one of several personal repre- 
 sentatives of a deceased indorser, this was held, under the 
 laws of that state, sufficient notice to bind the estate.* 
 
 § 769. To Assignee in Bankruptcy, or to Bankrupt. — 
 AYhere the indorser or drawer becomes bankrupt subsequent 
 to drawing or indorsing the bill or note, the notice should 
 be given to the assignee, where one has been selected, prior 
 to the dishonor of the instrument ; but until such assignee 
 has been selected, it would always be safe to notify the 
 bankrupt himself, as he is the onl}^ representative of his 
 estate until the assignee is chosen, except in cases where, 
 pending proceedings in banlo'uptcy, a receiver is appointed.^ 
 
 ' Beals V. Peck, 13 Barb., 245; Maspero v. Pedesclaux, 22 La. An., 227. 
 
 -Merchants' Bank v. Bii'cli, 17 Johns., 25. 
 
 3 Barnes v. Reynolds, 4 How. (Miss.), 114; Goodnow v. Warren, 122 
 Mass., 82; Linderman v. Guldin, 34 Pa. St., 54. 
 
 * Lewis V. Bakewell, 6 La. An., 359; Carolina Nat. Bank v. Wallace, 
 13 S. C, 347; Beals v. Peck, 13 Barb., 245. 
 
 ^Ex parte Moline, 19 Yes. Ch., 216.
 
 432 NOTICE OF DISHONOR OF COlVrMERCIAL PAPER. 
 
 § 770. Before Selection of Assignee. — In Ex parte Mo- 
 line,^ the holder of the note appeared at the second pubhc 
 meeting, under the commission, and the instrument having 
 been dishonored subsequent to the commission, notice of 
 such dishonor was given before the selection of an assignee, 
 and such notice Avas held sufficient upon the grounds already- 
 stated. 
 
 §771. Bankruptcy of Acceptor No Excuse. — Where 
 both drawer and acceptor were declared bankrupt before 
 the maturity of the bill, and the holder had timely notice 
 of the appointment of assignees, it was held that notice 
 should have been given either to the drawer or his assignees 
 of the demand and refusal of payment at maturit}^ There 
 being no notice given to either, although the drawer's place 
 of business was open, and in charge of a messenger, and 
 there being no excuse for failure of notice except the bank- 
 ruptcy of the acceptors, the bill was not allowed to be 
 proved under the commission issued against the drawer.^ 
 
 § 772. Might be to Bankrupt After Assignment. — It 
 has been asserted by high authority,^ that, even after the 
 assignment, notice may be effectually given to antecedent 
 parties by a banlo-upt indorser, for the reason that he still 
 has an interest in the bill or note, and will be benefited by 
 shifting the duty of payment upon those who are ante- 
 cedently liable on the instrument. By a parity of reason- 
 ing, we might say, that as the bankrupt drawer or indorser 
 has an interest in securing reimbursement for the benefit of 
 his estate, notice should be given to him, or at least might 
 be given him and thereby charge his estate. 
 
 § 7 7 3. To Infant Party. — Where the indorser or drawer 
 is an infant, he is entitled to notice of the dishonor of the 
 instrument, and it should be given him, precisely as though 
 he were of full age. He may not choose to plead the dis- 
 abihty of infancy in defense, and if it be waived by him, it 
 
 iSMpra,§769. 
 
 2 Rhode V. Proctor, 4 Barn. & Cres,, 517. 
 
 * Story on Prom. Notes, § 305.
 
 TO WHOM GIVEX 433 
 
 cannot be interposed by antecedent parties who receive 
 notice of the dishonor through him.* 
 
 §774. Married Woman. — Where the draft or indorse- 
 ment is made by s^feme sole, who, previous to the maturity 
 of the instrument drawn or indorsed, marries, in case of de- 
 fault of acceptance or payment, notice thereof should, in 
 general, be given to her husband,- The exceptions to this 
 would probably be where the indebtedness was a charge 
 upon her separate estate in equity, or where, by statute, 
 married women are held personally liable on their contracts, 
 whether entered into before or after marriage. 
 
 § 775. Drawer or Indorser Insane. — Should the drawer 
 or indorser become insane, or otherwise incapable of man- 
 aging his own affairs, subsequent to incurring the con- 
 ditional liability and previous to the maturity of the in- 
 strument, so that the appointment of a guardian becomes 
 necessary, in the event of the instrument's being dishonored 
 at maturity, notice thereof should be given to such guardian.^ 
 
 1 Story on Prom. Notes § 311. 
 2J6zcZ. 
 3J6id. 
 28
 
 43i KOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 III. Time of Giving Notice. 
 
 § 776. Importance of Question of Time. 
 
 777. Eesults of Judicial Legislation, 
 
 778. Division of Subject. 
 
 779. ]\Iust be Subsequent to Dishonor. 
 
 780. Effect of Payment on Day of Dishonor, 
 
 781. May be Given on Last Day of Grace. 
 783. Time of Dishonor. 
 
 783. Refusal to Pay at Maturity. 
 
 784. Failure and Qualified Refusal. 
 
 785. To Resident of Same Place. 
 
 786. Time of Delivery, and Not of Sending. 
 
 787. At Place of Business or Residence. 
 
 788. Hours at Place of Business. 
 
 789. Hours at Place of Residence. 
 
 790. Nine o'Clock P. M. 
 
 791. When Left on Day of Dishonor. 
 
 792. Parties Resident in Different Places. 
 
 793. By Mail — Time of Depositing Letter. 
 
 794. General Construction of " Reasonable Time." 
 
 795. Each Party Has His Day. 
 
 796. Statement of Lord EUenborough. 
 
 797. The Day of One Party Not for the Benefit of Another. 
 
 798. Consequence of Numerous Parties Taking One Day. 
 
 799. Time Not Always Measured by Intervening Days. 
 
 800. Difficulties in Applying the Rule. 
 
 801. Chitty's Doctrme as to " Next Day." 
 
 802. Criticism of Above by Story — Twenty -four Hours. 
 
 803. Impracticabihty of Chitty's Rule. 
 
 804. Inconvenience of Story's Rule. 
 
 805. Judicial Construction of General Rule. 
 
 806. Unreasonably Early Hour. 
 
 807. The Hour of Closing Mad. 
 
 808. Five o'Clock Too Early. 
 809.. Seven o'Clock Too Early. 
 
 810. Six o'clock the Hour of Closing. 
 
 811. Ten Mmutes Past Nine o'Clock. 
 
 812. INIight be Reasonable Earlier Than Nine. 
 
 813. Half-past Nine Held Too Early. 
 
 814. Rule Construed by Marshall. 
 
 815. Not Necessary to be Sent by Fhst Mail. 
 
 816. Mere Formal CompUance with Rule Not Required. 
 
 817. Agents or Attorneys Have Their Day.
 
 TIME OF GIVING NOTICE. 435 
 
 § 818. Must be Secular Day. 
 
 819. Jewish Festival. 
 
 820. Sunday. 
 
 821. Time Refers to Hour of Mailing. 
 
 822. Law of Place of Contract Governs. 
 
 823. Consequences of Adopting Unusual Modes. 
 
 824. Question of Law and Fact. 
 
 825. Waiver and Excuse. 
 
 826. Deductions from Authorities Cited. 
 
 827. No Exceptions to Rule Requiring Notice in Reasonable Time. 
 
 § 776. Importance of Question of Time.— No branch of 
 the subject considered in this chapter is of greater impor- 
 tance than that which treats of the time within which notice 
 of the dishonor of a negotiable instrument must or may be 
 given, in order to bind the party notified. No question 
 affecting commercial paper has been the subject of more 
 anxious inquiry; none of the mooted questions have pro- 
 voked a greater amount of litigation, nor drawn out the 
 expression of such a contrariet}'" of opinion ; and it is still 
 announced from the bench, and by leading text- writers, that 
 the only rule known to the law merchant in this respect is, 
 that the notice must be given within a reasonable time, and 
 that what is a reasonable time must in every instance de- 
 pend upon the circumstances peculiar to each case.^ 
 
 § 777. Results of Judicial Legislation. — In fact, there 
 can be no rule of universal application laid down which 
 will operate with even a tolerable approximation to equal- 
 ity. The circumstances by which the question of the rea- 
 sonableness of the time is affected are so different in their 
 character that it has been found necessary by the courts to 
 promulgate a separate rule for each class of cases, where 
 susceptible of classification, and these rules have been ex- 
 tended or contracted to suit the novel features of the cases 
 as they have arisen. This question has been so often liti- 
 gated, and so ably and thoroughly discussed by the courts, 
 that at this day a case can hardly arise, for which some- 
 
 iChitty on Bills, 224^5, and cases cited; 1 Pars. N. & B., 507; Story 
 on B., § 285. But see 2 Daniel on Negot. Inst., § 1035.
 
 436 NOTICE OF DISHONOE OF COMMEECIAL PAPER. 
 
 where in the long line of decisions, reaching back to the 
 time of Lord Mansfield, a precedent may not be found 
 which Avill serve as a guide to determine what time the 
 giver of the notice might take for the purpose of preparing 
 and serving the same. The principles applicable to almost 
 any given case will be found as well settled as they could 
 be by legislation. 
 
 § 778. Division of Subject. — The most important cir- 
 cmnstances affecting the time within which notice of dis- 
 honor of commercial paper should be given are, 1. The 
 means of communication between the holder of the dishon- 
 ored instrument and the party to be notified. 2. The 
 holder's knowledge or want of knowledge of the place of 
 residence or business of the party to be notified. 3. The 
 customs of the place where the notice is given with relation 
 to business hours, etc. The time within which notice should 
 be given will also be found to be influenced to a consider- 
 able extent by the position occupied upon the dishonored 
 instrument, by the party giving the notice. The influence 
 of these circumstances, and others of less prominence, will 
 be noticed, as instances involving their operation, either 
 separately or together, are given hereafter, without regard 
 to the order of their statement above. 
 
 §771). Must be Subsequent to Dishonor. — In all cases 
 the notice must be given subsequent to the dishonor of the 
 bill or note,^ which cannot take place prior to the last day 
 of grace, when the paper is entitled, either by statute or the 
 law merchant, to days of grace.^ 
 
 § 780. Effect of Payment on Day of Dishonor. — It was 
 for a long time seriously contended that not only must the 
 notice be subsequent to the demand and refusal, but that it 
 must be on a subsequent day, for the reason that the maker 
 or acceptor was entitled to the entire day of maturity upon 
 which to make payment and discharge himself from liabil- 
 ity. The reason of this has been so far recognized that he 
 
 * Jackson v. Richards, 3 Cai., 343. 
 2 Lenox v. Roberts, 2 Wheat., 373.
 
 TIME OF GIVING NOTICE. 437 
 
 ■was held not to be required to pay the protest fees, if pay- 
 ment were made at any time during the customary business 
 hours of the day, notwithstanding demand may have been 
 made upon him at an earlier hour of the same day.^ 
 
 § 781. May Ibe Given on Last Day of Grace. — Neverthe- 
 less, where, upon presentment during any business hour of 
 the day, payment is flatly refused, the holder need not wait 
 until later in the day in order to allow the party an oppor- 
 tunity to obtain the money, or to give him the benefit of 
 any change of mind that may take place, but may give the 
 notice as soon after default as will be convenient for him- 
 self, and thereby as effectually charge the parties notified 
 as though he had waited until the last minute of the last 
 hour of the day.- 
 
 § 782. Time of Dishonor. — Lord Ellenbokough laid 
 down the rule fixing the time of dishonor after which no- 
 tice might be given so as to charge antecedent parties, by 
 declaring that " the note was dishonored as soon as the 
 maker had refused payment on the day when it became 
 due." ' So, in Ex parte Moline,* a final refusal to pay, made 
 at 11 o'clock in the forenoon, was held sufficient to excuse 
 the holder or his agent from calling later in the day to re- 
 ■peat his demand. 
 
 ^Osboi-ne v. Moncure, 3 Wend., 170, See, also, Hartley v. Case, 1 
 Carr. & P., 555, where it is held that if the acceptor pay the bill durin«j 
 the day of maturity, though after notice of dishonor, the notice comes 
 to nothing. 
 
 2 Coleman v. Carpenter, 9 Pa. St., 178; Ex parte Moline, 19 Ves. Ch., 
 216; Haynesv. Birks, 3 Bos. & P., 599; Hine v. Allely, 4 B. & Ad., 624; 
 Shed V. Brett, 1 Pick., 401 ; Lindenberger v. Beall, 6 Wheat., 104; Bus- 
 sard V. Levering, 6 Wheat., 102; Thorpe v. Peck, 28 Vt., 127; Curry v. 
 Bank of Mobile, 8 Port. (Ala.), 360; McClane v. Fitch, 4 B. Mon., 599; 
 Corp V. McComb, 1 Johns. Cas., 328; Smith v. Little, 10 N. H., 526. 
 
 SBurbridge v. Manners, 3 Camp., 193. But see Gilbert v. Dennis, 8 
 Mete, 495, where it is held that notice given during the forenoon of the 
 last day is insufficient. 
 
 * Supra, § 781.
 
 43S KOTICE OF DISHONOK OF COMMERCIAL PAPEE. 
 
 § 783. Refusal to Pay at Maturity.— So, also, in Cole- 
 man V. Carpenter,^ where the note was presented for pay- 
 ment on Saturday at the residence 'of the maker, and the 
 holder was informed that the party was not at home, but 
 would return on Monday and pay the note, this was held as 
 a flat refusal, and notice given the same day was regarded 
 as sufficient. 
 
 § 781. Failure and Qualified Refusal. — And in one case, 
 the notice given on the day of dishonor Avas held good, 
 though there was only a qualified refusal to pay, the ac- 
 ceptor saying, when the bill was presented, that he had no 
 effects, but expected to have them in the course of the day. 
 This was regarded as an actual dishonor, sufficient to war- 
 rant the notification of antecedent parties.^ 
 
 § 785, To Resident of Same Place. — When the holder 
 or other party from whom notice is required, or the agent 
 of such party, resides or carries on business in the same 
 town, city or village as the prior party to be notified, the 
 notice must be delivered personally, or at the residence or 
 place of business of such prior party, at furthest on the day 
 next succeeding that upon which the default of payment 
 was made, provided the one giving the notice can, by the 
 exercise of reasonable diligence, ascertain the residence or 
 place of business of the party to be notified.* 
 
 § 786. Time of Delivery, and Not of Sending. — As be- 
 tween parties residing or carrying on business in the same 
 place, the time of giving notice relates to the day, and the 
 hour of the day, in which the same is delivered, and not to 
 the day or hour of despatching the messenger. It would 
 not, therefore, be considered as a sufficent compliance with 
 the law, in the absence of a reasonable excuse for delay, 
 where the message was forwarded to a resident drawer or 
 indorser on the day following the day of dishonor, if such 
 
 »SMpra,§781. 
 
 2 Hartley v. Case, 1 Car. & P., 555. 
 
 STindal v. Brown, 1 T. R., 167.
 
 TIME OF GIVING NOTICE. 439 
 
 message was not delivered until the next succeeding day/ 
 except where service between such parties may be by mail.- 
 
 § 787. At Place of Business or Hesidence. — One of the 
 circumstances affecting the service of notice between resi- 
 dents of the same city, town or village, with respect to the 
 time of service, when the mode is by leaving the notice 
 with some one other than the party to be notified, is the 
 ])lace where such notice is left. Though the holder of the 
 instrument may, at his option, leave the notice at the resi- 
 dence or place of business of the drawer or indorser,^ the 
 hours of the day within which such notice may be effectu- 
 ally served at these two places are essentially different. 
 
 § 788. Hours at Place of Business. — Where the notice 
 is served upon a party to a bill or note by leaving it at the 
 place of business of such party with some one other than the 
 one for whom it is intended, it must be so left during the 
 ordinary business hours of the day.** 
 
 § 780. Hours at Place of Residence. — Where, on the 
 other hand, the holder or his agent serves the notice by 
 leaving it at the residence of the party, it may be at any 
 time before the usual hour of retiring for the night.^ 
 
 § 7 90. Nine o'Clock P. M. — It was accordingly held, in 
 one instance, that a party who had received notice of the 
 dishonor of a note indorsed by him, might notify an ante- 
 cedent indorser by leaving the notice for him, at his place of 
 residence, at 9 o'clock of the night of the day following that 
 upon which he received notice of the default of payment.® 
 
 1 Ireland v. Kip, 11 Johns,, 231; Williams v. Bank of U, S., 2 Peters. 
 100; Smedes v. Utica Bank, 20 Johns., 372; Cabot Bank v. Warner, 10 
 Allen, 522; Grinman v. Walker, 9 la., 426. 
 
 2 See post, § 869 et seq. , where the postal delivery system is held to 
 obviate the necessity of personal service of notice between residents of 
 the same place. 
 
 3 See post, §863. 
 
 * Adams v. Wright, 14 Wis. , 408 ; Cayuga County Bank v. Hunt, 2 
 Hill, 635. 
 s Adams v. Wright, 14 Wis., 408. 
 fi Jameson v. Swinton, 2 Taunt., 224.
 
 440 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 § 791. When Left on Day of Dishonor. — iJs^evertheless, 
 a notice left at the residence of the party on the night of 
 the day of dishonor, or even given b}'^ an indorser the day 
 when he received notice, too late to operate as notice for 
 that day, would be a good and sufficient notice for the fol- 
 lowing day, and so be in time to bind the party notified if 
 otherwise properly served.^ 
 
 §792. Parties Resident in Different Places. — When 
 the party giving the notice and the party notified reside in 
 different places, — that is to say, within or near different 
 cities, towns or villages, so that they are accustomed to 
 resort to different postoffices for their letters, or where their 
 residences are too far apart to render personal service, or 
 its legal equivalent, practicable, — the most important cir- 
 cumstance, affecting the time of giving notice, is the means 
 of communication between them. 
 
 § 793. By Mail — Time of Depositing Letter. — For the 
 purpose of giving notice of the non-acceptance or non-pay- 
 ment of negotiable paper to non-residents, the means of 
 communication most favored is the pubhc post. Where the 
 notice is inclosed in a letter and sent through the mails, 
 the question of diligence is considered with reference to 
 the time of depositing the letter in the postoffice and not the 
 date of its receipt by the party to whom it is addressed,^ 
 
 § 794. General Construction of Reasonable Time. — 
 So long as the courts had no rule as to the time of giving 
 notice, beyond the requirement that it should be reasonable^ 
 they, as well as the business public, were subject to no httle 
 embarrassment in settling upon a construction of this vague 
 and uncertain limitation. To leave this as a simple question 
 of fact to the jury did not have a tendency to the promo- 
 tion of certainty in results. It was found, also, that to re- 
 quire notice " as soon after the dishonor of the instrument 
 as practicable," according to the doctrine of some of the 
 earlier cases, would have a tendency to compel unreasonable 
 
 1 See § 839. 
 
 2 See cases cited infra, § 831.
 
 TIME OF GIVING NOTICE. 441 
 
 haste, and thus enhance the risk of fatal mistakes ; to force 
 the holder to neglect all other business so as to bestow his 
 entire attention upon the giving of the notice, and that the 
 inquiry into all the circumstances by which the notice might 
 have been delayed for a few hours, would involv^e the ren- 
 dering of too nice and exact an account, by the one giving 
 the notice, of the manner in which his time had been dis- 
 posed of between the dishonor of the paper, or the receipt 
 of the notice by him, and the sending or delivery of the 
 notice to the antecedent party. Hence, for the purpose of 
 promoting certainty and safety in dealings in negotiable 
 securities, it was deemed necessary to give the term reasoiv- 
 able, as applied to notices of this sort, a legal construction. 
 It was accordingly held, and has now become a settled rule 
 of the law merchant, that in no instance shall the notice be 
 required to be given on the day of the demand and default 
 of payment ; but it shall be sufficient, if given or sent on 
 the next succeeding day thereafter} 
 
 § 795. Eacli Party Has His Day. — This rule has been 
 extended so as to give indorsers who receive notice the same 
 advantages as to time for transmitting it to antecedent par- 
 ties as are enjoyed by the holder, so that each party has his 
 day in which to give notice to antecedent parties, which, in 
 case of an indorser, means the day following that on which 
 he receives notice, whatever be the lapse of time between 
 the date of dishonor and the receipt of the notice from the 
 party subsequent to him.^ 
 
 1 Chick V. Pillsbury, 24 Me., 458: Manchester Bank v. Fellows, 28 N. 
 H., 302; Grand Bank v. Blanchard, 23 Pick., 305; Whitwell v. Johnson, 
 17 Mass., 449; Carmena v. Bank of La., 1 La. An., 369; Blackman v. 
 Leonard, 15 La. An., 59; Neal v. Taylor, 9 Bush, 380; Whitlesey v. 
 Dean, 2 Aikens, 263; Langdale v. Trimmer, 15 East, 291; Darbishire 
 V. Parker, 6 East, 3; Bartlett v. Howley, 120 Mass., 92. 
 
 2 United States Bank v. Goddard, 5 Mason, 366; Sussex Bank v. Bald- 
 win, 17 N. J. L., 487; Carter v. Burley, 9 N. H., 558; Howard v. Ives, 1 
 Hill, 263; Hai-tford Bank v. Stedman, 3 Conn., 489; Dobree v. Eastwood, 
 3 Can-. & P., 250; Turner u. Leech, 4 B. & Aid., 451 ; Rowe v. Tipper, 20 
 Eng. L. & Eq., 220; 3 Kent, Com., 106.
 
 4i2 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 §796. Statement of Lord Ellenborougli. — This rule 
 and the reason upon which it is founded is given by Lord 
 Ellenbouough in the case of Bray v. Iladwen,' in the fol- 
 io Aving language : " It has been laid down, I believe, since 
 the case of Darbishire v. Parker, as a rule of practice, that 
 each party into whose hands a dishonored biU may pass, 
 should be allowed one entire day for the purpose of giving 
 notice. A different rule would subject every party to the 
 inconvenience of giving an account of all his other engage- 
 ments, in order to prove that he could not reasonably be 
 expected to send notice by the same day's post which 
 brought it. * * * It has moreover this advantage, that 
 it excludes all discussion as to the particular occupations of 
 the party on that day," 
 
 § 797. The Day of One Party Not for the Benefit of 
 Another.— Xerertheless, it should be borne in mind that 
 the day to which one party is entitled within which to pre- 
 pare and forward his notice to prior parties, cannot be 
 availed of by a subsequent party to prolong the time within 
 Avhich he may notify the more remote party.^ This princi- 
 ple is illustrated by the case of Rowe v. Tipper." There 
 the note was dishonored on Saturday, and notice was given 
 by the holder to his immediate indorser on the Monday fol- 
 lowing. The party so notified might have bound the next 
 antecedent indorser by notice on Tuesday, but failed to do 
 GO, and the holder undertook to sup])ly the omission of 
 giving notice on that day, which was two days after the 
 date of demand and non-payment to such antecedent in- 
 dorser. The last notice was held too late, for the reason, as 
 expressed in the opinion of the court delivered on that 
 occasion, that "if the holder seeks to avail himself of notice 
 of dishonor given by him to remote indorsers, it must be 
 
 i5Maule&Sel., 68. 
 
 2 Manchester Bank v. Fellows, 28 N. H., 302; Brown v. Furguson, 4 
 Leigh, 37; Turner v. Leech, 4 B. & Aid., 451. 
 
 3 Supra, § 795.
 
 TIME OF GIVING NOTICE. 443 
 
 given within the time he should have given notice to his 
 own immediate indorser." ^ 
 § 798. Consequence of Numerous Parties Taking a Day. 
 
 The application of this rule, where the dishonored instru- 
 ment bears numerous indorsements, might result in greatly 
 prolonging the time from the date of dishonor until the first 
 indorser or the drawer was notified of the fixing; of his lia- 
 bility. Should each successive indorser avail himself of the 
 day allowed him for the purpose of preparing and forward- 
 ing the notice, and should be content to give the notice to 
 his immediate indorser, leaving the latter to notify the par- 
 ties antecedently liable, the time thus consumed, when 
 taken together with the necessary time for transportation, 
 might, from days, grow into weeks, or even months', before 
 the notice reached the party last entitled thereto. Not- 
 withstanding the circuitous course taken by the notice, in a 
 case of this kind, and although it might have been given 
 in a much shorter time by the holder directly to the drawer 
 or first indorser, it will be none the less binding on account 
 of the delay.^ 
 
 § 7 99. Time Not Always Measured by Intervening Days. 
 When a notice is thus sent to each party in succession, and 
 any one or more of such parties sends or delivers the notice 
 to those who are antecedent to him, on the same day he re- 
 ceives it, this will shorten the time for the drawer or first 
 indorser, because no antecedent party Avill be permitted to 
 take advantage of the time thus gained.^ The number of 
 
 1 A dictum in tbe case of Etting v. Schuylkill Bank, 2 Pa. St., 355, 
 lays down tbe general rule that when notice "is given by the holder 
 directly, it is soon enough, if it reach the pai-ticular indorser as soon as 
 it would have reached liim cu-cuitously through the subsequent in- 
 dorsers, each of whom are entitled to an entire day, if he choose to 
 insist on it, to hand it on." This singular misinterpretation of the au- 
 thorities, however, has no following. 
 
 2 Smith V. Roach, 7 B. Mon., 17; Whitman v. Farmers' Bank, 8 Port. 
 (Ala.), 258 ; Fitchbm-g Bank v. Perley, 2 AUen, 433. 
 
 sSimpson v. Terney, 5 Humph., 419; Marsh v. Maxwell, 2 Camp., 210, 
 note.
 
 444 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 days, therefore, intervening between the dishonor of com- 
 mercial paper, and notice to the drawer or first indorser, 
 may not always be measured by the number of indcrsers, 
 even where there are no unusual or unexpected obstructions 
 to the transmission of the notice from one to another. 
 
 § 800. Difficulties in Applying the Rule. — In applying 
 the rule giving the holder or indorser until the day after 
 dishonor to notify prior parties, comparatively little diffi- 
 culty has been experienced where the parties between whom 
 the notice passed were residents of the same place. But 
 when the situation of the parties rendered the mail the 
 most convenient mode of communication, the question has 
 been involved in some difficulty. 
 
 §801. Cliitty's Doctrine as to " Next Day."— Mr. Chitty 
 lays down the rule that " where the notice is to be sent by 
 the general post, then the holder, or party to give the notice, 
 must take care to forward notice by the post of the next 
 day, after the dishonor, or after he received notice of such 
 dishonor, whether that post sets off from the place where 
 he is, early or late." ^ 
 
 §802. Criticism of Above by Story — Twenty-four 
 Hours. — Judge Story, however, holds the rule to be less 
 strict than as laid down by Mr. Chitty, and expresses his 
 views of the doctrine as follows : " It would be more correct 
 to say that the holder is entitled to one whole day to pre- 
 pare his notice, and that therefore it wiU be sufficient if he 
 send it by the next post that goes after twenty-four hours 
 from the time of the dishonor. Thus, suppose the dishonor 
 is at 4 o'clock P. M., on Monday, and the post leaves on 
 Tuesday at 9 or 10 o'clock, it seems to me that the holder 
 need not send by that post, but may safely wait and put 
 the notice into the postoffice earl}'" enough to go by the post 
 on Wednesday morning at the same hour." - 
 
 § 803. Impracticability of Chitty's Rule. — A strict 
 adhesion to the rule laid down by Mr. Chitty, instead of af- 
 
 1 Chitty on Bills, 458 (9th ed.). 
 
 2 Story on BiUs, § 891 (note) ; id., § 291.
 
 TIME OF GIVING NOTICE. 445 
 
 fording the holder or party giving the notice a reasonable 
 time to prepare and forward the same, might render it 
 utterly impracticable for him to notify prior parties within 
 the time thus arbitrarily prescribed. Suppose the notice to 
 be given an indorser about the last quarter of his usual hour 
 of retiring for the night, which, in some places, would be 
 at 12 o'clock. Suppose the first mail of the succeeding day 
 should leave, in the early part of the first hour of the day, 
 which would be some time previous to 1 o'clock, and might 
 be but a few minutes past 12. Thus the time within which 
 the indorser, notified at his residence, would be required to 
 prepare his notice to antecedent parties, and deposit it in 
 the postofiice, might be reduced to a very few minutes. 
 Lord Ellenboeough, in rendering the opinion of the com't 
 in Smith v. MuUett,^ says that " each man has a day. If 
 you limit a man to the fractional part of a day, it will come 
 to a question how swiftly the notice can be conveyed. A 
 man and horse will be employed, and you will have a race 
 against time." 
 
 § 804. Inconvenience of Story's Rule. — On the other 
 hand, the twenty-four hour rule is equally foreign to the 
 purpose for which one day was fixed upon as the proper time 
 to allow parties within which to give such notices. The 
 object was to insure a reasonable time to the giver of the 
 notice, so that he might not be forced to neglect other busi- 
 ness in order to attend to the matter of giving the notice. 
 To follow the rule allowing twenty-four hours would require 
 the court, in every instance, to engage in nice computations 
 of fractions of a day, which is a practice universall}^ looked 
 upon with judicial disfavor.'^ The doctrine, as announced 
 by the learned author, is unsupported by authority. 
 
 §805. Judicial Construction of General Rule.— The 
 construction which has been placed upon the above rule,' by 
 the best considered cases, both in this country and Great 
 
 »'2Camp., 208. 
 
 2 2 Blackst. Com., 141. 
 
 3 5fitpra, §794.
 
 446 KOTICE OF DISHONOR OF COMMEKCIAL PAPEK. 
 
 Britain, is that the notice should be sent by the post of the 
 day following that upon which default is made, provided 
 the liour of departure is not unreasonably early, or before a 
 convenient hour for business} Should the only mail of the 
 day take its departure at an hour in the morning too early 
 for business purposes, then it would be sufficient if posted in 
 time for the out-going mail of the next succeeding day. 
 
 § 806. Unreasonably Early Hour. — What is an unrea- 
 sonably early hour to be required to attend to the business 
 of forwarding the notice must be separately determined in 
 each case by the finding of a court or jury. The hour will 
 vary according to the locality and the circumstances of the 
 party sending the notice, and may change in any given 
 locality as the customs and habits of the business men of 
 such place are altered. 
 
 § 807. The Hour of Closiug Mail. — An instance of an 
 hour which would probably be regarded as too early in any 
 business community will be found in the case of Bank of 
 Alexandria v. Swann,^ where the mail took its departure 
 between the hours of 12 o'clock of the night after default, 
 and 2 o clock A. M. of the day following the day of dis- 
 honor. Of course the party from whom the notice was due 
 was not required to prepare and post the same at such an 
 early hour as this. Besides, as in all probability the mail de- 
 parting at such an early hour would be closed against the 
 receipt of letters, previous to 12 o'clock of the night of the 
 day of dishonor, it could not reasonably be called the mail 
 
 iLawson v. Farmers' Bank, 1 Ohio St., 206; Burgess v. Vreeland, 2-4 
 N. J. L., 71; Wemple v. Dangerfield, 2 Sm. & M., 445; Stephenson v. 
 Dickson, 24 Pa. St., 148; FuUerton v. Bank of U. S., 1 Pet., 604; Bank 
 of Alexandria v. Swan, 9 Pet., 33; Carter v. Barley, 9 N. H., 558; Sus- 
 sex Bank v. Baldwin, 17 N. J. L., 487; Downs v. Planters' Bank, 1 Sm. 
 & M., 261; Cliick v. Pillsbury, 24 Me., 458 (overruling Goodman v. Nor- 
 ton. 17 Me., 381 and Beckwith v. Smith, 22 id., 125); Davis v. Hanley, 
 12 Ark., 645; West v. Brown, 6 Ohio St., 542; Mitchell v. Cross, 2 R. I., 
 437; Hawks v. Salter, 4 Bing., 715; GeiU v. Jeremy, 22 Eng. C. L., 249; 
 WiUiams v. Smith, 2 B. & Aid., 496. 
 
 2 9 Pet., 33.
 
 TIME OF GIVING NOTICE. 44:7 
 
 of the next day.' The case cited sufRciently illustrates the 
 propriety of considering the day and hour of dosing, rather 
 than that of the departtire of mails. There the mail was 
 closed at 9 o'clock P. M. of the day of dishonor, and took 
 its departure at sunrise of the following day, and the court 
 decided the mail to be of the day upon which it was closed, 
 and the notice to an indorscr, posted on the day following 
 that upon which the note was dishonored, was held good, 
 although there was no other mail going in the direction of 
 the indorser's residence until the second day thereafter. 
 
 §808. Five o'clock Too Early.— It was also held, in 
 West v. Brown,^ that 5 o'clock was an hour of the morning 
 too early for business; so that where the mail departed at 
 that hour, a notice posted at 9 o'clock thereafter would be 
 sufficient, regardless of the time of departure of the next 
 mail. 
 
 § 800. Seven o'Clock Too Early.— In Davis -y. Ilanley,' 
 7 o'clock was the hour at which it would have been neces- 
 sary to post the notice " if the first mail of the next day " 
 had been insisted upon ; but the court held this unreason- 
 ably early for business. 
 
 § 810. Six o'clock the Hour of Closing.— So, in Chick 
 V. Pillsbury,* 6 o'clock was the hour of closing the mails, 
 and this was held too early to require the deposit of notice, 
 as it was earlier than the business men of the community 
 would be stirring. This was decided without reference to 
 the hour of departure. 
 
 §811. Ten Minutes Past Nine o'Clock. — In Lawson 
 V. Farmers' Bank,'^ ten minutes past 9 was held to be not 
 unreasonably early, " or before a reasonable and convenient 
 time after the commencement of early business hours of the 
 day " in the city of Pittsburgh, Pennsylvania. 
 
 1 Farmers' Bank v. DuvaU, 7 GUI & J., 78. 
 -'6 Ohio St., 543. 
 313 Ark., 645. 
 * 84 Me., 458. 
 5 1 Ohio St., 306.
 
 448 NOTICE OF DISHONOR OF COMMERCIAL PAPER 
 
 §812. Might be Reasonable Earlier Than Nine.— In 
 
 Davis V. Planters' Bank/ the notice was deposited in the 
 postoflBce at 9 o'clock on the morning of the day next suc- 
 ceeding that upon which the instrument was dishonored, 
 and the court held substantially that this was insufficient 
 unless it further appeared that the mail left subsequent to 
 that hour, or, if prior thereto, at an unreasonably early 
 hour. 
 
 §813. Half-past Nine Held Too Early.— In Hawks v. 
 Salter,- however, the hour of the mail's going out was half- 
 past 9 o'clock on the morning of the day the notice was re- 
 quired to be sent. This was held too early for business men 
 to attend to the posting of notices, and consequently a no- 
 tice deposited in the receiving office later in the day was 
 held sufficient. 
 
 §814. Rule Construed by Marshall. — The principle 
 upon which the holder or other party sending the notice is 
 excused from posting it at a very early hour is generally 
 regarded as consistent with some of the authorities cited, 
 where, as in Lenox v. Koberts,* it is held by Chief Justice 
 Marshall that "a demand of payment should be made 
 upon the last day of grace, and notice of the default of the 
 maker be put into the postoffice early enough to be sent by 
 the mail of the succeeding day." The proviso that the 
 mail closes at a reasonably early hour is added as a rational 
 explanation of the meaning of " the mail of the succeeding 
 day," so as to render the rule applicable to cases where 
 there is but one mail on such day, and there is a question 
 whether, with reasonable dihgence, the notice might have 
 been sent by that.'* 
 
 § 815. Not Necessary to be Sent by First Mail. — It has 
 been contended, as we have noticed, that, in order to charge 
 drawers and indorsers of commercial paper with notice sent 
 
 ilSm. &M., 261. 
 
 2 4Bing., 715. 
 
 3 2 Wheat., 373. 
 * Supra.
 
 TIME OF GIVING NOTICE. 449 
 
 tkroiigh the mails, it is essential that the notice should go 
 by the first mail of the day succeeding the day of matm^ity 
 and demand;^ but whatever difference of opinion there 
 may have existed at one time upon this question, it may 
 now be regarded as fully settled by authority, that where 
 two or more mails take their departure on the day succeed- 
 ing the day of dishonor to the place where the party to 
 whom the notice is addressed has his residence, notice sent 
 hy either of such mails will he sufficient} 
 
 §816. Mere Formal Compliance with Rule Not Re- 
 quired. — And where there is no regular outgoing mail on 
 the next day after the dishonor, which leaves at a reason- 
 able hour for business, the notice will be sufficient if de- 
 posited in time for the next regular mail that goes in the 
 required direction, regardless of the number of days that 
 may intervene between the dishonor of the bill or note, and 
 the departure of the mail by which notice of non-payment 
 is conveyed to the party to be charged.^ The law does not 
 exact a mere formal compliance, which must necessarily 
 prove fruitless of results. The notice might as well be lying 
 in the private desk of the holder as in the postoffice await- 
 ing the time for the departure of the mail. 
 
 §817. Assents or Attorneys Have Their Day. — When 
 it is said that a holder or indorser is entitled to a da}^ within 
 which to prepare and post the notice to non-residents, or to 
 serve notice upon prior parties who reside in the same place, 
 it will be understood that this applies as well to agents or 
 attorneys who merely hold or indorse the jDaper, to facili- 
 tate collection, as to holders and indorsers for value.* 
 
 1 CMtty on Bills, 485 (11th Am. from 9th Lend. Ed.), and cases cited. 
 
 2 Carter v. Bm-ley, 9 N. H., 558; Whitwell v. Jolmson, 17 Mass., 449; 
 AUen V. Avery, 47 Me., 287. 
 
 3 Montelius v. Charles, 76 lU., 303; GeiU v. Jeremy, 22 Eng. C. L., 249; 
 S. C, 1 M. & M., 61. 
 
 4 Sussex Bank v. Baldwin, 17 N. J. L.,487; Firth v. Thrush, 15 Eng. 
 C. L., 242; Robson v. Bennett, 2 Taunt., 388; Haynes v. Birks, 3 Bos. & 
 P., 599; Langdale v. Trimmer, 15 East, 291 ; Daly v. Slatter, 4 Car. & P., 
 200. 
 
 29
 
 450 NOTICE OF DISHONOR OF C0:MMEECIAL PAPER. 
 
 § 818. Must be Secular Day. — The statement that the 
 hokler or inclorser who has received notice must send or 
 dehver the notice, according to the relative situation of the 
 parties, on tlie day succeeding that upon which the note or 
 bill was dishonored, or notice thereof was received by the 
 indorser, must be accepted with the qualification that where 
 either the day upon which the notice is received, or the day 
 succeeding the date of dishonor or receipt of notice, is a pub- 
 lic holiday, or a day set apart by the religious denomination 
 to which the party charged with the duty of giving the no- 
 tice belongs, as a religious festival, or as sacred from secular 
 affairs, such day will not be computed as forming any part 
 of the time within which the party is required to attend to 
 the giving or sending of the notice.^ 
 
 § 8 1 9. Jewish Festival. — So where the day following 
 that upon which an indorser, who was a Jew, received 
 notice, was set apart as a Jewish festival, upon which it was 
 held, by those of that faitli, unlawful to attend to their sec- 
 ular affairs, it was held that the commercial law had such 
 regard for the consciences of men, of whatever religious 
 persuasion or belief, that in this instance the party would 
 not be required to send the notice during the continuance of 
 such festival, but it would be regarded as sufficient if sent 
 on the day following that held sacred to religious observ- 
 ances."^ 
 
 § 820. Sunday. — So, also, where notice of default in pay- 
 ment of a note, indorsed by the party receiving it, came to 
 his hands, inclosed in a letter, on Sunday, he was not bound 
 to open the letter until Monday, and was entitled to treat 
 the notice as though it were received on Monday, and it 
 was held that notice sent by him on the following Tuesday 
 would be in sufficient time to bind the prior party to whom 
 it was addressed.* 
 
 1 Howard v. Ives, 1 Hill, 263; Hartford Bank v. Stedman, 3 Conn., 489. 
 - Lindo V. Unsworth, 2 Camp. , 602 ; Farmers' Bank v. Vail, 21 N. Y. , 
 483; HaUoweU v. Curry, 41 Pa. St., 332. 
 
 3 Crawford v. Milligan, 2 Cranch C. C, 226 ; McElroy v. English, id., 528.
 
 TIME OF GIVING NOTICE. 451 
 
 § 821. Time Refers to Hour of Mailing.— When the 
 
 service of notice is by mail, the time has reference to the 
 day when it is deposited in the postofflce, and not the date 
 of its receipt by the party to be charged. When the party 
 sending the notice has deposited the same in the office, 
 properly addressed to the prior party, he has performed his 
 entire duty, so far as that particular party is concerned. It 
 is of no consequence to him what accidents or delays inter- 
 vene to prevent the party from receiving the notice season- 
 ably, or from receiving it at all. Having no control over the 
 postoffice department, or any of its officers or employees, he 
 is not responsible for any act of negligence on their part, 
 by which prior parties to the instrument are prevented from 
 receiving notice in due time.* 
 
 §822. Law of Place of Contract Governs. — Although 
 the regularity of the protest of a foreign bill of exchange 
 is governed by the law of the place of acceptance and 
 payment, whatever affects the sufficiency of the notice of 
 dishonor of negotiable securities of any kind must be de- 
 termined by the law of the place where the contract is 
 made. That is, where the question is the sufficiency of no- 
 tice to the indorser, it must be solved according to the laws 
 and customs of the place where the contract of indorse- 
 ment was entered into; and where the drawer is the party 
 to be notified, by the law of the place where the bill was 
 drawn. 2 
 
 § 823. Consequence of Adopting Unusual Modes. — 
 Where the party giving the notice, and he to whom it is 
 given, reside in different places, so that the manner of com- 
 municating between them is generally through the post- 
 
 1 Jones V. Warden, 6 W. & S., 399; Mt. Vernon Bank v. Holden, 2 R. 
 I., 467; Nevius v. Bank, 10 Mich., 547: Marshall v. Baker, 3 Minn., 320; 
 Loud V. Merrill, 45 Me., 516; Harris v. Robinson, 4 How., 336; Bank v. 
 King, 14 N. J. L., 45; Woodcock v. Houldsworth, 16 M. & W., 124. 
 
 2 Wallace v. Agiy, 4 Mason, 336; Aymar v. Sheldon, 12 Wend., 439; 
 Hyatt V. Bank of Ky., 8 Bush, 193; Chick v. Pillsbury, 24 Me., 458; 
 Whitwell V. Johnson, 17 Mass., 449; Bank of Alexandria v. Swann, 9 
 Pet., 33; Hawks v. Salter, 4 Bing., 715.
 
 452 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 office, this is not to be understood as the exclusive medium 
 which may be employed. Notice of dishonor may be sent 
 by express, or by the hands of any common earner, or a 
 private messenger may be employed to carry the same, 
 whatever be the distance the parties may live apart. But 
 where there may be communication by mail, the adoption 
 of other means shifts the time, to be considered in arriving 
 at a determination of the question of diligence on the part 
 of the one giving the notice, from the day of sending to the 
 day of receiving the notice. In other words, by the adop- 
 tion of other modes, the party assumes all the risks of delay 
 in transportation, and will not only be required to show dili- 
 gence in his messenger or carrier, but must further estabHsh 
 that the notice reached the party to be charged on the same 
 day it would have come to hand had it been sent by mail ; 
 but it need not appear that it was delivered at the same hour 
 of the day it would have arrived by the mail.^ 
 
 § 824. Question of Law and Fact. — The rule giving to 
 holders and indorsers one day within which to send notice 
 to prior parties, as hereinbefore explained, should be under- 
 stood as a rule of enlargement, rather than of limitation of 
 the time within which notice should be given. The princi- 
 ples upon which the rule is founded, as well as the occasion 
 for its establishment, seem to place it clearly in this light. 
 It does not import that one who fails to send or give notice 
 within the time fixed by the rule is necessarily guilty of 
 negligence. It does declare that any one who sends or de- 
 livers the notice within the time allowed shall not be treated 
 as negligent, merely because he might, by excessive diligence, 
 have given or sent the notice sooner. This rule only becomes 
 restrictive upon those from whom notice is due, when they 
 can show neither a waiver of the delay by those entitled to 
 notice, nor a reasonable excuse for not notifying the ante- 
 
 1 Spalding V. Krutz, 1 Dill. C. C, 414; Bancroft v. Hall, 1 Holt, 476; 
 Pearson v. Crallan, 2 Smith, 404.
 
 TIME OF GIVING NOTICE. 453 
 
 cedent parties on the day following that of dishonor. In 
 other words, when the one-day rule of diligence is observed, 
 the question of reasonableness of the time consumed is one 
 purely of law} Whereas, when the sender of the notice in- 
 dulges himself beyond this, it becomes a mixed question of 
 law and fact.^ The facts being ascertained, whether the 
 notice was in a reasonable time becomes a question of law.' 
 
 §825. Waiver and Excuse. — The circumstances prop- 
 erly submissible to the jury under the instructions of the 
 court, which go to establish either a waiver of the objections 
 as to time, or to excuse delay beyond the day allowed by 
 law, are exceedingly various in their character, and, for the 
 purpose of avoiding useless repetition, have been reserved for 
 separate treatment in a subsequent part of this chapter.^ 
 
 § 826. Deductions from Authorities Cited. — The reader 
 vrho has followed the current of authorities on this branch 
 of our subject has probably discovered that although there 
 is no rule as to time, applicable to all cases, more definite 
 than the requirement that the notice must be within a rea- 
 sonable time, still there are a number of rules by which the 
 term " reasonable " is clearly defined, in its application to 
 cases of different classes. Each class furnishes its own rule, 
 and notwithstanding the conservative inclination of the 
 courts, these rules have been allowed to grow until they 
 have become as thoroughly incorporated into the law mer- 
 chant as any other portion of this important branch of our 
 jurisprudence. 
 
 §827. No Exceptions to Rule Requiring Notice in Rea- 
 sonable Time. — It cannot fairly be said, in cases where 
 notice within the time is either waived or excused, that they 
 furnish exceptions to the rule. The general rule under 
 which they are associated with the cases in. conformity with 
 
 » Bray v. Hadwen, 5 M. & S., 68. 
 2 Wmiams v. Smith, 2 B. & Aid., 496. 
 s Darbishii-e v. Parker, 6 East, 3. 
 *See_pos^, V, Waiver and Excuse,
 
 454 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 the particuLar rule allowing but one day for notice is that 
 which requires notice in a reasonable time. To this rule there 
 are no exceptions. Notice is never required to be given or 
 sent on the day following the day of default, when such re- 
 quirement would be unreasonable. The instances in which 
 notice, within the time mentioned, is either waived or ex- 
 cused, do not come within the more restricted rule.
 
 MANNER AND MODE. 455 
 
 TV. Manner and Mode of Giving Notice. 
 
 § 828. Division of Subject. 
 
 829. Where and How Served, if Duly Received 
 
 830. Illustration of Above. 
 
 831. Whether Written or Oral. 
 
 832. Verbal Notice Delivered to Wife. 
 
 833. Should be Written to Distant Parties. 
 
 834. Form and Contents. 
 
 835. No Form Prescribed. 
 
 836. Immaterial Omissions. 
 
 837. Date of Maturity Held Immaterial. 
 
 838. Omission of Name of Payee. 
 
 839. Clerical Error Will Not Always Vitiate. 
 
 840. Mere Ambiguities Not Fatal. 
 
 841. Must Show Pi-esentment on Business Day. 
 
 842. Signed by One Having Authority. 
 
 843. Where and How Served. 
 
 844. Parties Residing ui Same Place. 
 
 845. Indorser TemiDorardy Absent. 
 
 846. What Constitutes Place of Business. 
 
 847. Where Residence Known. 
 
 848. By Post, DeUvery Must be Proved. 
 
 849. Different Meaning of the Word Town. 
 
 850. By Post, Between Different Villages in Same Town. 
 
 851. Leaving at Place of Residence or Business. 
 
 852. Residence in One Place, Business in Another. 
 
 853. "Place of Busmess" and " Residence," and What Amounts to 
 
 Leaviug Notice at Either. 
 
 854. Residence. 
 
 855. Need Not be Domicile. 
 
 856. Leaving Notice at Residence. 
 
 857. Leavmg at Boarding House. 
 
 858. Leaving at Counting House with Pi-et ended Agent. 
 
 859. Will Not Suffice to Leave Near the Place. 
 
 860. Illustration of Same Principle. 
 
 861. Corresponding Number Not Sufficient to Identify. 
 
 862. Several Places of Business, Either Will Suffice. 
 
 863. Holder May Elect Between Place of Business and Residence. 
 
 864. May be Left AVhen No One There to Receive it. 
 
 865. At Business Place, Must be to Proprietor. 
 
 866. Office of Directors of Corporation. 
 
 867. Case Distinguished from Above. 
 
 868. Difference in Time at Residence or Business Place.
 
 456 NOTICE OF DISIIONOK OF COMMEECIAL PAPEK. 
 
 § 869. By Mail Between Residents of Same Place. 
 
 870. Letter Cai-riers. 
 
 871. Drop Letters Required to be Stamped. 
 873. Penny Post. 
 
 873. Baltimore and Other Large Cities. 
 
 874. Established Custom of Bank. 
 
 875. ]May be Sent by Post When Authorized by Indorser. 
 
 876. Parties Living Near Place of Dishonor. 
 
 877. Illustration of Same. 
 
 878. Partners — One Resident, One Non-resident. 
 
 879. Case Requiring Personal Notice to Country Lidorser. 
 
 880. Indorser Tliree Miles Distant. 
 
 881. Party Residing at a Great Distance from Postoffice. 
 
 882. Parties Residing Near Different Post Towns. 
 
 883. Office to Which Party Usually Resorts, 
 
 884. General Adoption of Service by Mail. 
 
 885. Exceptional Case. 
 
 886. Necessity of a Rule. 
 
 887. Different Offices in Same Town. 
 
 888. General Direction to Town Prima Facie Sufficient. 
 
 889. Private Messenger. 
 
 890. Addressed to Residence or Business Place When Known. 
 
 891. Must be Addressed to Place of Residence. 
 
 893. Indorser May be Notified at Place He Pretends to Reside. 
 
 893. Exception to Cases Where Mail Most Convenient Mode. 
 
 894. When Holder May Choose Between Places. 
 
 895. Illustration of Above. 
 
 896. Contra. 
 
 897. Distance Made the Governing Fact. 
 
 898. Criticism of Foregoing — True Rule. 
 
 899. To Principal Office of Parish. 
 
 900. To County Seat. 
 
 901. To Principal Office of Town. 
 
 902. Should be Inquiry Made. 
 
 903. Proper Inquuy for Residence in Another Town, 
 
 904. Sufficient Inquuy Question for Jury. 
 
 905. Transient Indorser. 
 
 906. Temporary Abode Not Residence. 
 
 907. Member of Congress. 
 
 908. Last Ejiown Residence, When Sufficient. 
 
 909. Diligent Inquiry for Unknown Residence. 
 
 910. Inclosing Notices to All, to Last Indorser. 
 
 911. Transitory Place of Business. 
 
 913. By MaU When Holder and Indorser Are Fellow Townsmen. 
 
 913. When Agent in Same Place with Holder.
 
 MANNER AND MODE. 457 
 
 § 914. Circuitous Notice by Mail Between Eesidents of Same Place. 
 
 915. Designated Place of Payment — Inquiiy. 
 
 916. Put Upon Inquii-y. 
 
 917. Insufficient Inquiry. 
 
 918. Sending Notice to Wliere Instrument Dated, Insufficient. 
 
 919. Inquii-y of Maker, Insufficient. 
 
 920. Acting on Information from One of the Parties, Sufficient. 
 
 921. Inquiiy of Drawer. 
 
 922. Previously Acquired Knowledge. 
 
 923. Former Communications. 
 
 924. Surname Alone Insufficient. 
 
 925. Delay Cliargeable to Indorser. 
 
 926. Holder Misled by Place of Date. 
 
 927. Address Should Include Name of State. 
 
 928. When Address Designated by Indorser. 
 
 929. Delay from Sending by Unusual Route. 
 
 § 828. Division of Subject. — In deciding whether notice 
 of the dishonor of negotiable paper has been given in a 
 proper manner and by the proper modes, the questions of 
 primary consideration are, 1. "Whether the notice should be 
 oral or in writing ; 2. Its form and contents ; 3. "Where and 
 how it should be served upon the party to be charged. 
 
 § 829. Where and How Served, if Duly Received. — The 
 importance of the last mentioned of these considerations 
 only arises in the event of a failure, on the part of the party 
 sending or delivering the notice, to trace it to the person to 
 be notified. If the notice be full and accurate enough to 
 inform the party to be charged of all the important partic- 
 ulars connected with the dishonor of the bill or note ; if sent 
 or delivered in the proper time, hy the proper party, and to 
 the proper party, and by him duly received, it becomes 
 immaterial whether it was personally delivered by the party 
 interested in charging him with notice, by a private mes- 
 senger, or was inclosed in a letter sent through the mails. 
 It may be delivered at the residence or place of business of 
 the party notified, come to his hand in the midst of a public 
 gathering, overtake him on his travels, or be handed to him 
 on the street, with equal effect, provided the important fact 
 that he actually received it can be estabhshed. It is only 
 when, through misadventure or accident, the notice has
 
 45S NOTICE OF DISHONOR OF COMMEnCIAL PAPEH. 
 
 failed to reach the indoi-ser or drawer sought to be charged, 
 in due time, or the fact of its receipt is difficult to estab- 
 lish, that the manner of service becomes of any impor- 
 tance.^ 
 
 § 830. Illustration of Al)Ove.— So it has been held that, 
 where a note was dishonored in the same place where the. 
 indorser resided, and might have been personally served 
 with notice of the dishonor, that a written notice, sent 
 through the postoffice, and received by him on the day he 
 would have been entitled to receive it had it been personally 
 served, being in proper form, and containing information of 
 the dishonor, so expressed as to convey mtelligence thereof 
 to the indorser, was sufficient, notwithstanding the irregu- 
 larity of the manner of sending it,- 
 
 § 831. Whether Written or by Parol. — For the purpose 
 of perpetuating the evidence, and estabhshing the fact in 
 case of dispute, the notice should generally be in writing. 
 This is invariably true of foreign bills, from the necessity 
 of the case. There, in order to charge prior parties with 
 notice, it becomes necessary to have the bill officially pro- 
 tested, and the writing of the notice follows, ahnost as 
 matter of course. But in case of a negotiable promissory 
 note or an inland bill of exchange, where the drawer or in- 
 dorser may be charged with notice without protesting the 
 paper, there is a greater likehhood of a departure from the 
 safe and convenient method of giving notice in writing. 
 And unless otherwise provided by statute, a verbal notice 
 will be as effective as a written one, provided it conveys the 
 necessary information between the proper parties, within 
 the prescribed time.'' 
 
 1 Dickens v. Beal, 10 Pet., 573; Bradley v. Davis, 26 Me., 45; Hyslop 
 V. Jones, 3 McLean, 96; Nevius v. Bank of Lansingburgh, 10 Mich., 547; 
 Smedesr. Utica Bank, 20 Johns., 371; Dicken v. Hall, 87 Pa. St., 379; 
 First Nat. Bank v. Wood, 51 Vt., 471. 
 
 2 Grinman v. Walker, 9 Iowa, 426 ; Shaylor v. ]\Iix, 4 Allen, 351 ; Cabot 
 Bank v. Warner, 10 id., 522. 
 
 ^Housego V. Cowne, 2 M. & W., 348; WilUams v. Bank of United 
 States, 2 Peters, 96; Met calf v. Richardson, 20 Eng. L. & Eq., 301; 
 Thompson v. Wilhams, 14 Cal., 160.
 
 MAJTNEK AND MODE. 459 
 
 §832. Terbal Notice Delivered to Wife.— In the case 
 of Housego V. Cowne, the notice was less direct than an 
 ordinary verbal notice delivered by the holder or his mes- 
 senger to the party to be charged, because, in that case, the 
 communication was made to the wife of the party. While 
 the authority of this case may be doubted, so far as it ap- 
 proved of a notice delivered by word of mouth, to any one 
 but the party to be charged, still it seems in accord with 
 other authorities in so far as it asserts the validity of verbal 
 notice of dishonor.^ 
 
 § 833. Should l)e Written to Distant Parties.— Where 
 the party whose duty it is to give the notice resides at a 
 distance from the party sought to be charged, it is unsafe, 
 extremely inconvenient, and sometimes absolutely impos- 
 sible, to give the notice otherwise than in writing. It is 
 unsafe to send a private messenger, where the notice may 
 properly be inclosed in a letter and sent by the post, be- 
 cause the party sending the messenger renders himself 
 liable for the consequences of all the delays resulting from 
 the employment of the unusual medium of communication, 
 and assumes aU the risk of the notice being faithfully de- 
 livered by his representative." The inconvenience and addi- 
 tional expense of sending a verbal notification, when it may 
 be sent through the post, is so manifest as not to require 
 illustration. It becomes imjjossihle to give sufficient notice 
 verbally when, from the pecuhar situation of the parties, 
 and the means of travel between them, to undertake to 
 make oral communication of the fact of dishonor, or to 
 send a private messenger for that purpose, would involve 
 material delay beyond the time within which the notice 
 would reach the party by the post.^ 
 
 § 834. Form and Contents. — As to the form of the 
 notice there is no inflexible rule. It will be in substantial 
 conformity to law if it contains a description of the bill or 
 
 1 Compare cases cited above. 
 
 2 Infra. 
 ^ Infra.
 
 460 NOTICE OF DISHONOR OF COMMERCIAL PAPEB. 
 
 note, drawn with sufficient accuracy to identify the same, 
 together with the information that the paper has been duly 
 presented and dishonored, and that the party notified is 
 looked to for reimbursement.' The end to be accomplished 
 by the notice is to inform the party notified that the partic- 
 ular paper was presented at maturity for payment and pay- 
 ment refused. This may be done with considerable circum- 
 locution and verbiage, or very tersely and succinctly, with 
 the same effect. But whatever form of words is adopted 
 (and in this considerable latitude is permissible), it must not 
 fall short in substantial compliance with the above require- 
 ments. 
 
 § 835. No Form Prescribed. — This is one of those duties 
 enjoined by the law merchant which cannot be safely re- 
 duced to rigid formahty. To prescribe an inflexible form 
 for notices of this kind, though it might be a matter of con- 
 venience in exceptional cases, would in a majority of in- 
 stances merely serve as a trap to the unprofessional dealer in 
 securities of this sort. For this reason the interests of the 
 trading community are better subserved by enjoining upon 
 the holders of commercial paper, upon which others are 
 conditionally liable, the simple duty of notifying antecedent 
 parties, in case of non-payment or non-acceptance, so as 
 reasonably to apprise them of the dishonor of the paper 
 upon which they are sought to be charged, trusting to the 
 suggestions of common sense for fitting terms in which to 
 convey the information. As free as is this plain require- 
 ment from technical abstruseness, it has nevertheless been 
 the subject of earnest dispute and no inconsiderable amount 
 of litigation. It may be instructive, therefore, to note the 
 manner in which the courts, in deciding adjudicated cases, 
 have held as to what is a substantial description of the note 
 or bill, and what amounts to sv,jjicie7it information of its 
 dishonor. 
 
 § 836. Immaterial Omissions. — It has been held in case 
 of the dishonor of a negotiable promissory note, indorsed 
 
 I Infra. See, also, Story on Prom. Notes, § 348, and cases cited.
 
 MANNEE AND MODE. 4G1 
 
 by the party sought to be charged, that where the notice 
 gave the date and amount of the note, the date of its ma- 
 turity, the name of the maker, the fact of indorsement, and 
 that it was made payable to such indorser, together "unth 
 the information that it had been presented at maturity and 
 payment refused, was in all respects a good and sufficient 
 notice, notwithstanding an omission to state the name of 
 the holder in whose interest the notice was given, and not- 
 withstanding, also, that the accrued interest was not men- 
 tioned.^ 
 
 § 837. Date of Maturity Held Immaterial. — So it was 
 held that the notice was not defective, merely because it 
 failed to state specifically the date of maturity, it not ap- 
 pearing that there was any other negotiable instrument to 
 which the notice might apply. Had there been any such 
 other paper in existence, that fact could have been shown 
 by the party sought to be charged, and in the absence of 
 such evidence, there was no probability that the party was 
 misled by the omission.^ 
 
 § 838. Omission of Name of Payee. — So also, has it 
 been held, where the name of the jxiyee Avas omitted from 
 the notice, that this would not be regarded as a substantial 
 defect, the description being otherwise sufficiently full and 
 complete to identify the note upon which the part}^ was 
 sought to be charged.^ 
 
 §839. Clerical Error Will Not Always Vitiate.— A 
 mistake amounting to nothing more than an act of clerical 
 misprision will not alwa3"s vitiate the notice. As where a 
 notice of dishonor stated that the note Avas due on a day 
 which was prior to the last day of grace, and also gave the 
 name of the maker as " Jotham Gushing," instead of Jotham 
 
 1 Howe V. Bradley, 19 Me., 31. See, also, Mills v. United States Bank, 
 11 Wheat., 431; Davenport v. Gilbert, 4 Bosw., 532; Bradley v. Davis, 
 26 Me., 45. 
 
 2 Gates V. Beecher, 60 N. Y., 518. See, also, Home Ins. Co. v. Green, 
 19 N. Y., 518, and Youngs v. Lee, 12 id., 551. In the latter, held that 
 omission of both date and time of payment was immaterial. 
 
 3 Brooks V. Blaney, 62 Me., 456.
 
 462 NOTICE OF DISHONOR OF COMMEKCIAL PATER. 
 
 Cushman, as it should have been, the court refused to hold, 
 as a matter of law, that these errors were sufficiently im- 
 portant to vitiate the notice ; but declared that it was for 
 the jury to decide from the evidence whether defendant, 
 having no other note at the bank, was misled by the mis- 
 take. The jury deciding that he was not so misled, the ver- 
 dict was sustained.^ 
 
 § 840. Mere AmWguities Not Fatal. — Nor will mere 
 ambiguities, arising from clumsy phraseology in the notice 
 destroy its effect. As where a notice was in the following 
 form: "December 23, 1871. Please take notice that M. 
 D. S. and C. F. A.'s note, dated Baltimore, September 20, 
 1871, pa3"able ninety daj^s after date to the order of E. S., 
 for $340, payable at Third JSTational Bank, and by you in- 
 dorsed, is delivered to me b}^ the cashier of the Western 
 Bank of Baltimore, for protest, and the same not being 
 paid, pa}Tnent thereof having been demanded and refused, 
 is protested, and will be returned to the cashier, and that 
 you will be held liable for the payment thereof." This was 
 held sufficient notice of presentment and non-payment of the 
 note on the 22d day of December.- It will be noticed that 
 the date of the notice is the 23d, and that the delivery to 
 the notary is stated in the present tense. The inference 
 might follow that the demand was made by the party giv- 
 ing notice of that fact, and could not well be made before 
 he received the note. Though the above can hardly be 
 commended as a good model for notices of this kind, yet its 
 deficiencies are so aided by legal intendment that it was 
 held to convey to the party notified, information of the fact 
 that the note was presented on the day it became due ac- 
 cording to its tenor and date, as recited in the notice, and 
 that ])ayment was then and there refused. This case is dis- 
 tinguished from Eansom v. Mack,^ where the notice given 
 was a demand of payment on the day following the date of 
 
 'Smith V. Whiting, 12 Mass., 6. 
 
 2 Reynolds v. Appleman, 41 Md. , 615. 
 
 3 2 Hill, 587.
 
 MANNER AND MODE. 463 
 
 the maturity of the note ; from Routh v. Eobertson/ where 
 it clearly appeared from the notice that the protest was 
 made before the note was due ; from Etting v. Schuylkill 
 Bank,^ and Townsend v. Lorain Bank,^ where the notice was 
 of presentment before the instrument was due. 
 
 § 841. Must Show Presentment on Business Day. — But 
 though no particular form of w^ords is necessary, the notice 
 must contain the information that the note or bill has been 
 dishonored. This would not be accomplished by a state- 
 ment that it was presented and payment refused on the 4th 
 day of July or other legal holiday, although the demand 
 had in fact been made on the day previous. In such a case 
 it was held b}" the appellate court that it should have been 
 decided by the trial court, as matter of law, that the notice 
 was insufficient.'* 
 
 § 842. Signed by One Having Autliority. — So, also, has 
 it been held that a notice given in writing, as coming from 
 the holder of the note, and signed with his name, by one 
 who had neither special nor general authority to give the 
 notice in his behalf, was insufficient for the purpose of 
 charirino- the indorser to whom the notice was delivered, 
 though it w^as otherwise in proper form, and was given in 
 the usual time.-^ 
 
 §843. Where and How Served. — The consideration of 
 the question of where and how a notice of this sort may be 
 effectually served, without imposing upon the party giving 
 it the duty of seeing that it is actually received in time, will 
 render it necessary to give the rules applicable respectively 
 to cases where the party giving the notice, and the one 
 sought to be charged, reside or carry on business in the same 
 place ; where the party to be charged resides contiguous to 
 
 1 11 Sm. & M., 382. 
 
 2 2 Pa. St., 355. 
 
 3 2 Ohio, 345. 
 
 ' Ransom v. Mack, siipra. 
 
 5 Cabot Bank v. Warner, 10 Allen, 523. It must also be directed, on 
 its face, to the one sought to be charged. Remer v. Downer, 23 Wend., 
 620.
 
 464 NOTICE OF DISnOXOR OF COMMERCIAL PAPER. 
 
 the place where the paper is dishonored, or the party sub 
 sequent to him in liability, and from whom the notice should 
 come, resides ; and where the sender of the notice, and he to 
 whom it is sent, reside or carry on business in different 
 places. The necessity of considering these three classes 
 separately under this division of our subject arises from the 
 fact that they are governed by different rules, both as to 
 the place and the manner of service.^ 
 
 §844. Parties Residing in Same Place. — Where the 
 party sought to be charged by the notice resides or carries 
 on business in the same city or village where the paper is 
 dishonored, or from whence the notice comes, it should gen- 
 erally be served upon him personally, or, what is regarded 
 as tantamount thereto, delivered at his usual place of abode, 
 or his place of business.^ 
 
 § 845. Indorse!* Temporarily Absent. — In pursuance of 
 this rule, it was held that where the sender of the notice 
 and the party to be notified resided in the same town,^ the 
 latter could not be charged by notice sent to him through 
 
 1 Where, at the time the holder received the note, the indorser was 
 known to be an inmate of a certain boarding-house, which he left before 
 the maturity of the obligation, and had embarked for Europe ; but, on 
 inquiring for him, for the purpose of notifying liim of the dishonor of 
 the note, the holder was informed by the proprietor of the house that 
 he was still boarding there, it was held that notice left for him at tlie 
 boarding-house was sufficient. McMurtrie r. Jones, 3 Wash., 206. Per- 
 sonal service is good wherever it may be effected. Foster v. McDonald, 
 5 Ala., 376; Bank of U. S. v. Corcoran, 2 Pet., 121 ; Gilchrist v. Donnell, 
 53 Mo., 591; Shelburne Nat. Bank v. Townsley, 107 Mass., 444. 
 
 2Wilhams v. Bank of U. S., 2 Peters, 96; Timms v. Dehsle, 5 Blackf., 
 447; Bowling v. Harrison, 6 How.. 248; Bussai'd v. Levering, 6 Wheat., 
 104; Nashville Bank v. Bennett, 1 Yerg., 166; Boyd w. City Sav. Bank, 15 
 Graft., 501; Pierce v. Pendar, 5 Mete, 352; John v. City Nat. Bank, 62 
 Ala., 529. 
 
 3 The word " town " used here is intended to signify about the same 
 tiling as is understood by "village" in those portions of the country 
 where the counties are divided, for purposes of local government, into 
 towns, which answer, as nearly as may be, to the townships, and per- 
 haps parishes, of other sections, where town is understood to mean sub- 
 stantially the same as village.
 
 MAXNER AND MODE. 465 
 
 the post, and directed to him at the place where he was 
 then sojourning, he being teraporaril}^ absent from home.- 
 
 § 846. What Constitutes Place of I5iisiiioss. — So, where 
 the indorser lived at board in the city of Bangor, and 
 was frequently absent from home attending to his busi- 
 ness, but had a place in the counting room of a business 
 firm of the same city, Avhere he usually transacted business 
 when not absent, and this was all the place of business he 
 had, it was held that, in contemplation of law, he had both 
 a place of business and a residence in Bangor, at either of 
 which a notice should be left for him in order to fix his lia- 
 bility upon the contract of indorsement, provided he was 
 not personally notified in time elsewhere.^ 
 
 §847. Where Residence Known. — So, also, where the 
 holder of a note which had been duly presented, and pay- 
 ment refused, resided in the city of IS'ew York, and the in- 
 dorser was also a resident of the same city, but lived at 
 Kip's Bay, some three and a half miles from the postoffice, 
 and the holder knew where such indorser lived, it was held 
 that a notice inclosed in a letter and deposited in the post- 
 oflBce of the city was not sufficient to charge the indorser, 
 in the absence of any proof that the same was received by 
 him on the day following the date of dishonor. In decid- 
 ing this case, stress was laid upon the fact that the carriers 
 did not carry letters to Kip's Bay, which at that time was 
 about one mile beyond the compact portion of the city 
 where letters were usually delivered.' 
 
 § 848. By Post, Delivery Must be Proved.— The same 
 case was again before the same court under a somewhat 
 different aspect. At the second trial it appeared that the 
 
 1 Wilcox V. McNutt, 2 How. (Miss.), 7T6. 
 
 2 Pierce v. Pendar, 5 Mete, 352. See Brindley v. Barr, 3 Harr. (Del.), 
 419; Shelburne Falls Bank v. Townsley, 107 Mass., 444; Gilchrist v. Don- 
 nell, 53 Mo., 591 ; Neviusr. Bank of Lansingburgh, 10 Mich.. 547 ; Smedes 
 V. Utica Bank, 20 Johns., 371 ; Sheldon v. Benham, 4 Hill, 129; Todd r. 
 Edwards, 7 Bush, 89; Neal v. Taylor, 9 id., 380. 
 
 3 Ireland v. Kip, 10 Johns., 489. See, also, Bowling v. Arthur, 34 
 Miss., 41 ; Bowling v. Han'ison, 6 How. (U. S.), 248. 
 80
 
 4.G6 NOTICE OF DISHONOR OF COMMEKCIAL PAPER. 
 
 indorser had given orders at the postoiJice to have his let- 
 ters left at a certain honse on Frankfort street, where he 
 called or sent for them every day. But it was stiU held 
 that the notice was insufficient unless it was proved that 
 the letter containing it was actually delivered at the house 
 on Frankfort street on the day following that on which 
 payment was refused.* 
 
 §849. Different Meaning of the Word Town.— The 
 general test as to whether the situation of the parties is 
 such that information of the dishonor of the paper may be 
 communicated by mail, so as to affect the party notified 
 whether he receives the notice or not, is their respective 
 places of residence. In some of the cases the notice is re- 
 quired to be personal, or at the usual place of abode or 
 })lace of business of the party notified when they reside in 
 the same town; wliile in other cases communication by 
 mail is expressly upheld between fellow-townsmen. The 
 conflict between the decisions in these cases is more apparent 
 than real. The difference arises from the fact that in some 
 of the states the word " town " has a different signification 
 from that given it in others — the rule being substantially 
 the same. In those states where postal communication is 
 inhibited between residents of the same town, the word is 
 used synonymously with "village." It means a collection 
 of houses, or is intended to distinguish town from country. 
 While in those states where the courts favor this means of 
 communication between those residing in the same town, 
 the word is used to designate a division of the county which 
 may include no urban population at all, and frequently has 
 several postoffices. In Kew England, and some of the older 
 states, a town may include several villages, and correspond 
 to what are elsewhere, particularly in the West, called town- 
 ships. 
 
 § 850. By Post Between Different Tillages in Same 
 Town. — It is accordingly held that the post is the propei 
 
 illJohns.,231.
 
 MANNER AND MODE. 467 
 
 means of communication between residents of different 
 villages in the same town, where such villages have separate 
 and distinct postotfices.^ 
 
 § 851. Leaving at Place of Residence or Bnsiness. — A 
 notice duly delivered at the last known place of residence, 
 or place of business, of a party to a bill or note who has 
 absented himself from his usual place of abode, will be as 
 effective as though it were personally delivered to the one 
 for whom it was intended.^ "Were the rule laid down dif- 
 ferentl}^, it would afford a convenient facility for the evasion 
 of liability by one who had assumed the conditional obliga- 
 tion of indorser. If, by simply absenting himself from his 
 home, he might cast upon the holder the onus of tracing out 
 his whereabouts in order to serve him with notice of dis- 
 honor of the paper, the temptation to evade such unwelcome 
 intelligence would be too strong for the powers of resistance 
 of a large majority of the trading community. 
 
 § 852. Residence in One Place, Bnsiness in Another. — 
 Simple and reasonable as the rule seems, requiring personal 
 notice to resident parties, and fair and lil>eral as the pro- 
 vision appears allowing service at the place of business or 
 the residence of the party to be notified, at the option of 
 the holder, the verj^ latitude of construction which has 
 arisen from necessity, and been prompted by experience, 
 has had the effect, in some instances, to surround the ad- 
 ministration of the law with additional complications and 
 difficulties. It not unfrequently occurs that the residence 
 of the party and his place of business are in separate and 
 distinct places, and one or the other of such places may be 
 where the note or bill is dishonored. Such was the fact in 
 the case of Yan Yechten v. Pruyn.^ The note was payable 
 in Catskil, where the indorser resided with his famih^, but 
 his place of business was in the city of New York, where 
 
 > Ransom v. Mack, 2 HiU (N. Y.), 587; Shaylor v. Mix, 4 Allen, 351. 
 -Jones V. Mansker, 15 La., 51 ; Stedman v. Gooch, 1 Esp., 3. 
 :'18N. Y.,549.
 
 4GS NOTICE or DISnONOK OF COMiMEECIAL PAPER. 
 
 he spent four days of the week, and received some of his 
 letters. Notice of the non-payment of the note was sent 
 to him inclosed in a letter deposited in the postoffice at Cat- 
 skil, and addressed to him at his place of business in [New 
 York. It was held insufficient, for the reason that notice 
 should have been left at his residence in Catskil, even though 
 that mode of service might have involved delay in convey- 
 ing the necessary information. That such delay Avould 
 necessarily have followed, can scarcely be doubted, yet the 
 decision is in strict conformity to a rule established for 
 the mutual protection and convenience of the parties, and 
 one which in this instance the holder would have best con- 
 sulted his own convenience, as well as his own security, by 
 following.' 
 
 §853. '^Place of Business" and "Residence," and 
 What Amounts to Leaving Notice at Either. — The courts 
 have found it necessary to indicate what was meant by the 
 residence and what by the place of business of the indorser 
 or di^awer. The}'' have likewise judicially determined what 
 amounted to a service of the notice by leaving it at either 
 the residence or place of business. 
 
 §854. Residence. — In designating the residence as the 
 proper place for such service, it was not intended to restrict 
 the party notifying to the private residence of antecedent 
 parties, for the manifest reason that they might be residents 
 of the city, town or village, and still have no private resi- 
 dence, in the popular sense of the term, either there or else- 
 where. What is commonly understood by tlie residence of 
 a person within a city, is his private mansion or house occu- 
 pied by himseK and family exclusively. It would be ex- 
 tremely absurd, as weU. as embarrassing to the courts, to 
 give the term used in this connection such a restricted mean- 
 ing. It might render utterly impracticable the proper noti- 
 fication of any but householders, except where the notice 
 was delivered to them in person. The liberal and rational 
 
 1 Curtis v. State Bank, 6Blackf,, 312.
 
 MANNER AND MODE. 469 
 
 construction given to the term is illustrated to some extent 
 in the case of Pierce v. Pendar.^ 
 
 §855. Need Not Ibe Domicile. — It has also been held 
 that for a party to be a resident within the meaning and 
 contemplation of the law merchant, it is not necessary that 
 he should be domiciled in the same place — nor even that 
 he should be domiciled at all. It was held sufficient to bring 
 the place within the meaning of the law that it was the 
 place of abode at the time, and an instruction to the effect 
 that, in order to constitute a house 'the place of residence of 
 the occupant, it should be where he was domiciled, was de- 
 clared to be erroneous.- But it would seem where a party 
 to a biU or note has his domicile in one place and his resi- 
 dence in another, that notice left at either within a reason- 
 able time will be sufficient to satisfy the law.' 
 
 § 856. Leaving Notice at Residence. — In one case, how- 
 ever, where the notary who gave the notice, upon calling 
 at the residence of the party for that purpose, met a boy in 
 the door-3^ard, who said he was the indorser's son, to whom 
 he gave the notice, with the request that he would hand it 
 to his father, and afterwards saw him approach the house 
 with the notice, but did not see him enter, such service was 
 held insufficient to charge the indorser.* In this case the 
 mere leaving the notice in the hands of one about the house, 
 without being able to show even that the message was taken 
 within, much less that it actually came to the hands of the 
 one for whom it was intended, was not such a leaving it at 
 the residence of the party as the law enjoins. 
 
 § 857. Leaving Notice at Boarding Honse. — The rule 
 as above laid doAvn seems to bear more harshly upon the 
 holders of dishonored commercial paper than that declared 
 in the case of Bank of United States v. Ilatch,^ where the 
 
 1 Ante, § 846, note. 
 
 2 Young V. Durgin, 15 Gray (Mass.), 264. 
 SMerz v. Kaiser, 20 La. An., 577. 
 
 < Adams v. Wright, 14 Wis., 408. 
 5 1 McLean, 90; S. C, 6 Peters, 250.
 
 470 KOTICK OF DISHOXOE OF COMMEECIAL PAPEE. 
 
 indorser was living in lodgings at a public boarding-house, 
 and the notary called and inquh-ed of another boarder, by 
 whom he was informed that the party was absent, where- 
 upon the notice was delivered to such other boarder, and he 
 was requested to hand it to the absent indorser on his return. 
 This was held a sufficient service of the notice, whether, as 
 a matter of fact, it was received by the person for whom 
 it was intended or not. 
 
 § 858. Leaving at Counting House with Pretended 
 Agent. — So, also, was a service held sufficient which con- 
 sisted in leaving the notice at the counting-house of the 
 party to be notified, with one who represented himself as 
 liis agent, notwithstanding it subsequently transpired that 
 the representations of the pretended agent were utterly 
 false, and he ^vas not authorized, either generally or spe- 
 cially, to represent his alleged principal in that or any simi- 
 lar' transaction.^ 
 
 § 859. Will Not Suffice to Leave Near the Place.— But 
 there can hardly be said to be a conflict between the two 
 cases last cited and that of Adams v. Wright.^ The differ- 
 ence of conclusion reached seems to emphasize the impor- 
 tance of a strict compliance with the requirement to deliver 
 the message at the place of residence or business, and that 
 the law will not be satisfied by merely leaving it in proxim- 
 ity thereto, when the omission is the result of carelessness 
 or indifference on the part of the messenger who has the 
 notice in charge. In the tAvo cases cited above, from Avhich 
 are taken the illustrations of a liberal construction of the 
 provision in favor of the holder of the paper, there was an 
 appearance of the utmost diligence compatible with the pe- 
 culiar circumstances and surroundings of the parties. An}' 
 failure of the indorser to receive the notice in time, in either 
 case, was the result of his absence from his place of resi- 
 dence or business, and in leaving it in the one case with the 
 fellow boarder, or in the other with the pretended agent, 
 
 1 Jacobs V. Turner, 2 La. An., 964. 
 
 2 5wj3ra, §856.
 
 MANNER AND MODE. 471 
 
 messenger availed himself of the means which presented 
 me strongest hkelihood of accomplishing the desired end. 
 A well defined departure from the rule as to where the no- 
 tice should be left, when it is not personally served upon a 
 resident party, would be fraught with considerable hazard 
 to the rights of indorsers and drawers, for the reason that 
 where it is once admitted that a notice which is construct- 
 ive in its nature may be legally served by a deposit else- 
 w^here than at such places as the party to wliom it is directed 
 habitually attends, the extent of the departure will become 
 a mere question of caprice. It is better to be governed by 
 a rule which may occasionally work harshly than to be 
 without any rule at all. 
 
 §860. Illustration of Same Principle. — So where an 
 indorser of negotiable paper was carrying on business in 
 the third story of a building occupied by numerous other 
 persons, between whom and himself there was no business 
 connection or relation other than that of neighborhood, it 
 was held that such a notice could not be properly serv^ed b}' 
 leaving it on one of the desks of an office in the second 
 story of the same building.' 
 
 § 861. Corresponding Number Not Sufficient to Iden- 
 tify. — So, also, has it been held not to be a sufficient proof 
 of service, that the notice was left at a building with a 
 number corresponding to the number of the house men- 
 tioned on the bill, as the residence or place of business of 
 the indorser.- 
 
 § 862. Several Places of Business, Either Will Suffice. 
 But where the indorser or drawer carries on business at 
 several distinct places in the city or village in which the 
 note or bill is payable, in case of non-acceptance or non- 
 payment, notice may be properly served at either one of 
 such places of business without the holder being required 
 
 JKleinmann v. Boerstein, 32 Mo., 311. 
 2 Davenport v. Gilbert, 4 Bosw., 533.
 
 472 K0TIC2 OF DISnOXOE OF COMMERCIAL PAPER. 
 
 to determine at which of them there would be the greatest 
 Ukehhood of finding the party at any particular time.' 
 
 §803. Holder May Elect Between Place of Business 
 and Residence. — AViien the party to be notified both resides 
 and carries on business in the same place w^here the note is 
 dishonored, it seems that the holder is unrestricted in his 
 choice of methods of making the service. It may with 
 equal propriety be served at either the residence or the count- 
 ing-room, by leaving it in the hands of some one who is 
 apparently, at least, in charge of the place, or member of 
 the family, or in some manner connected with either the 
 household or the business affairs of the party. And when 
 it is impracticable to leave the notice with any one sustain- 
 ing intimate relations toward the one to w^hom it is ad- 
 dressed, it may, as we have seen, be served with equal effect 
 by leaving it with a stranger. 
 
 § 864. May be Left WJien No One There to Receive it. 
 And when there is not even a stranger at the place where 
 the drawer or indorser is sought, w^ith whom the notice may 
 be left, be it at his residence, or his place of business, the 
 written message may be deposited there, and by being so 
 left, will charge the party as effectively as though it had 
 been delivered into his owai hand.^ But where there is an 
 omission to leave the notice- with any one, the reason for 
 such omission should probably be given.^ 
 
 § 865. At Business Place, Must be on Proprietor. — It 
 is not suSicient to constitute the counting-room, office or. 
 shop, the place of business of the party to be charged with 
 notice, that he regularly transacts business there. It must 
 be /lis place of business, in the sense that he has a proprie- 
 tary interest in the subject of the transactions, or in the 
 proceeds of the business there conducted. IS'otice left at a 
 business house for one of its clerks or other employees 
 
 1 Phillips V. Alderson, 5 Humph. (Term.), 403. 
 - Commercial Bank v. Gove, 13 La., 113. 
 * Davenport v. Gilbert, supra, § 861.
 
 MANNER AND MODE. 4Y3 
 
 would not bind him unless it came to his own hands in due 
 time.^ 
 
 § 866. Office of Directors of Corporation. — It has also 
 been held that the president of a private corporation could 
 not be notified constructively by leaving- notice of the dis- 
 honor of commercial paper drawn or indorsed by him, at 
 the office of the board of directors over which he presided, 
 unless there was some special authority to serve the notice 
 in that manner.^ 
 
 § 867. Case Distiiiguislied from Above. — This case is 
 to be distinguished from that of Berridge v. Fitzgerald.'' 
 The latter was where the indorser of a bill was one of the 
 directors of a corporation. He had no other place of busi- 
 ness and was engaged in no other occupation tlian that of 
 director. He was at the company's office when lie indorsed 
 the bill, which was regular business paper, and had been 
 accepted by the company. When the instrument was dis- 
 honored, the affairs of the corporation were being wound 
 up, and the holder did not know where the indorser resided. 
 Accordingly, he sent the notice to him at the company's 
 office, and such service was held sufficient, though it was 
 never actually delivered into the hands of the one for whom 
 it was intended. 
 
 § 868. Difference in Time at Residence or Bnsiness 
 Place. — It is also well to bear in mind, in this connection, 
 that there is a difference between the methods of serving 
 notice at the residence of the party and at his place of busi- 
 ness. In the former it is sufficient if the notice is delivered 
 at any time previous to the hour of retiring for the family, 
 while in the latter it should be delivered during the ordinary 
 business hours of the day.^ 
 
 § 869. By Mail Between Residents of Same Place.— 
 But the rule requiring personal notice, or by leaving it at 
 
 1 Bank of West Tennessee v. Davis, 5 Heisk. (Term.), 436. 
 
 2 Commercial Bank v. Strong, 28 Vt., 316. 
 34 Q. B., 639. 
 
 * Ante, III, §§ 788, 789.
 
 474 NOTICE OF DISHONOR OF COMMERCIAL PAPER, 
 
 the place of business or the residence of the party notified, 
 where the parties are residents of the same place, is by no 
 means universal. Although it is still maintained in many 
 of the states of the Union, in many others and in England 
 it has been materially modified. One of the reasons assigned 
 for the inhibition of the post as a means of communication 
 between residents of the same place was, that as there was 
 no postage charged \x\wn drop letters, the government did 
 not assume the same degree of care of mail matter of this 
 sort as of letters transmitted through the mails for compen- 
 sation. This reason is hardly satisfactory. Probably the 
 better one is, that where the notice is deposited in the post- 
 office, its receipt in time depending upon the promptness 
 with which the drawer or indorser calls for the letter, is 
 much less certain than sending it directly to the residence 
 or place of business of the l^arty, or delivering it to him in 
 person on the da}" following the date of non-payment. "What- 
 ever may have been the influence of either or both of these 
 causes in bringing about the original adoption of the rule, 
 the changes wrought in our postal system, particularly 
 within a few years past, have entirely disposed of the one, 
 and greatly modified and limited the effect of the others. 
 § 870. Letter Carriers. — Since the adoption of the free 
 deliveiy system, by which mail matter is delivered by letter 
 carriers in all the large cities and towns of this country, the 
 change has suggested an entire abrogation, in those places 
 where carriers are emplo^^ed, of the rule that obtained under 
 the old sj^stem, and the adoption of the more convenient rule, 
 that even as belAveen residents of the same place, where 
 letter carriers are regularly employed, it shall be sufficient 
 proof of service to show that the notice was inclosed in a 
 letter duly stamped, and addressed to the drawer or indorser 
 at his residence or place of business, and deposited in the 
 postoffice in time for regular delivery on the day the party 
 would be entitled to personal notice.^ 
 
 1 Shoemaker v. Mechanics' Bank, 59 Pa. St., 79; "Walters v. Brown, 1.1 
 Md., 393.
 
 MANNER AND MODE. 475 
 
 § 871. Drop Letters Required to be Stamped.— In the 
 
 case of McNatt v. Jones,^ the fact that, by the law of con- 
 gress, letters deposited for local distribution are required to 
 be stamped, is regarded as suiRcient to justify an abandon- 
 ment of the rule requiring personal notice in places of the 
 magnitude and importance of Augusta, Georgia. 
 
 § 873. Penny Post. — For purposes of giving notice of 
 the dishonor of negotiable instruments, the penny post has 
 for some time been regarded as a proper and legal means of 
 communication in the city of London and other large cities 
 in Great Britain.^ 
 
 § 873. Baltimore and Other Large Cities. — It was also 
 decided in the case of "Walters v. Brown,^ that in large cities, 
 like Baltimore, where letter carriers were emplo3'ed, and the 
 parties entitled to notice were accustomed to receive letters 
 from such carriers, the rule requiring personal notice did 
 not apply. It was held, in that case, that a notice regularly 
 posted in time for delivery in the ordinary course of mail, 
 and properly addressed to the party, would as effectually 
 charge him with notice of the demand and non-pa3'ment of 
 the paper upon which he was liable as though such notice 
 had been personally served or left at his business place. 
 Other cases have recognized the penny post, or the postal 
 delivery system, as absolving the holder from the duty of 
 employing a special messenger, in order to render the re- 
 ceipt of the notice certain between residents of the same 
 place.'* 
 
 §874. EstaMislied Custom of Bank. — And even where 
 the carriers are not emploj^ed, resident parties may be noti- 
 fied by means of a letter deposited in the postoffice, and 
 the fact that such notice was so deposited, properly ad- 
 dressed, will be suiScient to charge the party with notice, 
 
 •53 Ga., 473. 
 
 2 3 Daniel on Negot. Inst., § 1010. 
 
 3 15Md., 285. 
 
 * Brindley v. Barr, 3 Harrington (Del.), 419 ; Bell v. Hagerstown Bank, 
 7 Gill, 216.
 
 476 NOTICE OF DISnONOK OF COMMERCIAL TAPEK. 
 
 whether he receives it or not, when such mode of service is 
 in accordance with an established custom of the bank, of 
 which custom the party notified was cognizant.^ 
 
 § 875. May be Sent l)y Tost When Authorized by In- 
 dorser. — So when the indorser has expressly authorized 
 any one in whose hands the note may be when dishonored, 
 to send the notice by post, though a resident of the same 
 place, the notice may be served in that manner with the 
 same effect as when the parties reside at a distance from 
 each other. But such words as " Third indorser, J. P. H., 
 hves at Yicksburg," written upon the instrument, were held 
 not to amount to an agreement on the part of J. P. II. to 
 receive notice of dishonor through the Yicksburg postoffice, 
 when that was the place where payment was refused by the 
 maker, and also the place of residence of the party senchng 
 the notice.- 
 
 § 876. Parties Living Near Place of Dishonor. — Gen- 
 erally where the party to a bill or note, whose habihty is 
 sought to be fixed by notice, lives in the neighborhood of 
 the city or village where the instrument is made payable, 
 and it is presented, and acceptance or payment refused, he 
 may be notified by a drop-letter, deposited in the postofiice 
 where the instrument is dishonored, it being the nearest 
 office to the party notified, or the one at which he Usually 
 receives his letters.^ 
 
 § 87 7. Illustration of Same. — So, where the holder of a 
 note resided in Georgetown, District of Columbia, and the 
 indorser Uved in the country, with his nearest postoffice, and 
 the one at which he usually received his letters, at George- 
 town, the note being presented for payment in that city, and 
 payment refused, a notice of such non-payment, inclosed in 
 a letter and addressed to the indorser at Georgetown, was 
 
 iLime Rock Bank v. Hewett. 53 Me., 51. 
 
 2 Bowling V. Han-ison, 6 How. (U. S.), 248. 
 
 SBondurant v. Everett, 1 Mete. (Ky.), 658; Barret v. Evans, 28 Mo., 
 331; Bell v. State Bank, 7 Blackf., 456; Jones v. Lewis, 8 Watts & 
 Serg,, 14,
 
 MANNER AND MODE. 477 
 
 held sufficiently served, because, to have compelled the 
 holder to incur the expense of the employment of a private 
 messenger, under the circumstances, would have been un- 
 reasonable.^ 
 
 §878. Partners — One Resident, One Non-resident.— 
 An exceptional case, where the manner of notifying country 
 indorsers is fully approved, is that of Hume v. Watt.- In 
 this case there was an indorsement by two partners, one of 
 whom lived in the country, in the vicinity of the city where 
 the note was dishonored, and received all his mail matter 
 at the city postoffice ; while his co-indorser was a resident of 
 the city, and, as such, entitled to personal notice. As it was 
 partnership paper, notice properly served upon either was 
 sufficient to bind both. The only service made was upon 
 the one who resided in the country, and that by a drop- 
 letter deposited in the postoffice of the place of dishonor. 
 The notice was held insufficient, for the reason that it should 
 have been personally served upon the indorser who resided 
 in the city.* 
 
 § 8 7 9. Case Requiring Personal Notice to Country In- 
 dorser. — The recognition of the sufficiency of notice by 
 means of drop-letters, to those who reside near the place of 
 dishonor, and receive their letters at that postoffice, is so 
 general as to be almost universal. But it has been held 
 that the postoffice is not only not the proper place to de- 
 posit notice, when the indorser resides in the same town 
 with the party giving the notice, but that it is equally ob- 
 jectionable when the indorser lives close to the border of 
 the town where the letter containing the notice is posted.* 
 
 § 880. Indorser Three Miles Distant. — The residence 
 of the indorser being indicated as " close to the border " of 
 
 IBank of Columbia v. La^v^ence, 1 Pet., 578. 
 
 2 5 Kan., 34. 
 
 3 The principal reason assigned by the court for thus holding was that 
 there was not a proper degree of diligence shown in making inquiry for 
 the resident indorser. 
 
 ^McCrummen v. McCrummen, 5 Martin (La.), N. S., 158; Laporte r. 
 Landry, id., 359.
 
 478 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 the town, it might be inferred that personal notice was 
 insisted u]ion because the indorser was substantially a resi- 
 dent of the town — only separated therefrom by an imagi- 
 nary line. But a subsequent case, by the same court,' is 
 calculated to correct any such impression. In that case the 
 indorser resided two or three miles from the town where 
 the letter was posted, and where he generally received his 
 mail matter, but it was held that notice deposited in sucli 
 postoffice was not properly served, but should have been 
 dehvered to him by a private messenger. 
 
 § 881. Party Kesident at a Great Distance from Post- 
 office. — The mere fact that the party to be notified resides 
 in the country does not always justify the employment of 
 the mail as a means of communicating the fact of dishonor. 
 He may reside so far beyond the limits of the city or vil- 
 lage as to be inaccessible by that means. As where a party 
 resides thirty or forty miles distant from any postoffice. In 
 such a case, it was held that the notice must be delivered to 
 him in the same manner as though he resided w^ithin the 
 limits of the place where the note was payable.^ And that 
 the holder should commence exercising diligence in reach- 
 ing the indorser on the day following that upon which tlie 
 note was dislionored, and continue, without unnecessary 
 intermission, until the party was notified, 
 
 § 882. Parties Residing Near Different Post Towns. — 
 Where the party sending the notice and the one to be noti- 
 fied resided at a distance from each other — in or near dif- 
 ferent cities, towns or villages, — notice by the post is not 
 only sufficient, but it is, as a general rule, the safest and best 
 means of notification which can be adopted. And where it 
 is proved that the holder, or party giving the notice, has 
 deposited a letter containing the same in the postoffice, 
 properly addressed, that is sufficient to charge the party 
 notified, though the letter never should come to hand.^ 
 
 1 Louisiana State Bank v. Rowel, 6 Martin (La.), N. S., 506. 
 2 Fish V. Jackman, 19 Me., 467. 
 
 3 Lindenberger v. Beall, 6 Wheat., 104; Miinn v. Baldwin, 6 Mass., 
 816; Shed v. Brett, 1 Pick., 401.
 
 MANNER AND MODE. 479 
 
 § 883. Office to Which Party Usually Resorts.— Gener- 
 ally the notice should be sent to the postoffice nearest to 
 the party notified, bat this is not an inflexible rule. The 
 object of the law being to communicate the knowledge 
 within a reasonable time, that the instrument has been dis- 
 honored, it will be sufiicientif the notice is sent to the office 
 to which the party usually resorts for his letters.' 
 
 § 884. (xeneral Adoption of Service by Mail. — No little 
 controversy has arisen, and some contrariety of opinion has 
 been expressed by the courts, in construing the requirements 
 of the law in regard to the postoffice to which the notice of 
 dishonor should be sent in cases pointed out by precedent 
 as proper ones for service by that mode. AVhere, however, 
 it could be ascertained that there was a postoffice reason- 
 ably near the residence of the party notified, at which he 
 was accustomed to receive his letters, the cases have been 
 rare indeed where it was held that any other mode of service 
 than that by mail should have been employed. 
 
 § 885. Exceptional Case. — However, the case of Kash- 
 ville Bank v. Bennett- seems to ignore the rule followed 
 elsewhere, and to set up a standard, to attempt to follow 
 which would lead to endless confusion. The defendant was 
 indorser of a note payable at a bank in Murfreesboro. 
 Payment being refused at maturity, notice of protest was 
 placed in the postoffice, addressed to the indorser, and 
 directed to Jefferson in the same county, where a postoffice 
 was kept, and about two and a half or three miles from 
 which the indorser resided. His residence was eleven miles 
 from the place of dishonor, and Jefferson was his nearest 
 postoffice. There was no evidence showing whether or not 
 he was in the habit of receiving his letters there. The 
 court, however, seemed to take judicial notice of the fact 
 
 1 Tims V. Delisle, 5 Blackf., 447; Reid v. Payne, 16 Johns., 218; Remer 
 V. Downer, 23 Wend., 620; Bank of Geneva v. Hewlett, 4 Wend., 323; 
 Hazleton Coal Co. v. Ryerson, 20 N. J. L., 129; Bank of Columbia v. Law- 
 rence, 1 Pet., 578. 
 
 21 Yerg. (Tenn.), 166.
 
 4:80 NOTICE OF DISHONOR OF COMMEECIAL PAPER. 
 
 that Murfreesboro was a more important trading point 
 than Jefferson, and so held that the notice was not well 
 served, bnt should have been delivered to defendant in per- 
 son, or left at his domicile or place of business, and 
 even seemed to intimate that it would have been better to 
 have directed the letter to the indorser at Murfreesboro. 
 The reasons assigned for deciding the case in this manner 
 were that " the means or mode adopted of giving the notice, 
 was not the best reasonably within the power of the party 
 giving it; but a mode circuitous, doubtful in effect, and 
 overlooking without necessity the best kind of service, to 
 wit, personal service." ^ 
 
 § 886. Necessity of a Rule.— It would be rather a ca- 
 pricious rule to require a holder of commercial paper, in every 
 instance, to choose what was absolutely the best mode of 
 serving a notice of dishonor. It would be unjust to compel 
 him to exercise his independent judgment in selecting one 
 of several modes, and then make no allowance for his good 
 faith in case his judgment should prove erroneous. It would 
 surround transactions in negotiable instruments with such 
 hazards as few would be willing to assume, to impose upon 
 an innocent indorsee in whose hands the instrument hap- 
 pened to be when payment was refused, not only the duties 
 of good faith and diligence in notifying the indorser upon 
 whom he relied, but to require him, at his peril, to exercise 
 the dangerous discretion of electing which mode of notifica- 
 tion he would adopt, and then hold that discretion subject 
 to review by a court, hampered by no fixed rule of pref- 
 erence for one mode o2 giving notice over another. To 
 hold simply that the best mode " reasonably within the 
 power of the party giving it " must be adopted is to abandon 
 all rules by which the best mode may be determined, and 
 leave it entirely at the discretion of the giver of the notice . 
 The logical coroUary of such a deduction would be that thij 
 
 1 In considering the above decision one cannot avoid the conclusion 
 that there must have been in possession of the court, a knowledge of 
 some facts that could not properly appear in the evidence.
 
 MANNER AND MODE. 481 
 
 discretion, once exercised, could only be impeached for mala 
 fides. 
 
 §887. Different Offices in Same Town.— One of the 
 features of what may be regarded as the rule by which 
 parties giving these notices are governed is fairly illustrated 
 by the case of Eoberts v. Taft.^ There the notice was 
 seasonably sent by mail to the indorser, directed to T., the 
 principal postoffice of the town in which he lived. But the 
 indorser resided, and usually received his letters at. West T., 
 another postoffice in the same town. The holder, by whom 
 the letter containing the notice was sent, knew where the 
 indorser Hved, and also knew that there was a postoffice at 
 West T. Under these circumstances it was very justly held 
 that by the delay the indorser was discharged from liability. 
 
 § 888. General Direction to Town Prima Facie Suf- 
 ficient. — But where there are two postofflces in the same 
 town it is not always necessary to direct the letter contain- 
 ing the notice to one in particular. A general direction to 
 the town is prima facie sufficient, and will serve to charge 
 the party notified, unless he is accustomed to receive his 
 letters at a particular office, of which the sender of the notice 
 was aware, or might have learned upon reasonable inquiry.- 
 
 §881). Private Messenger. — Though the usual, and in 
 general the preferable, mode of notifying antecedent parties 
 to a bill or note, of the dishonor of the instrument, where 
 such parties reside elsewhere than in the city or village in 
 which payment is refused, is by mail, yet there is no im- 
 perative rule requiring the adoption of that mode. A 
 private messenger may be sent with the message, provided 
 the employment of this means involves no material delay, 
 and, even where the notice arrives a little later in the same 
 day than it would by post, it may still be sufficient. As 
 where the first indorser resided in Liverpool, and a subse- 
 quent indorser in Manchester, the bill being dishonored, 
 notice thereof was duly received by the subsequent indorser 
 
 1130 Mass., 169. 
 
 2 Morton v. Westcott, 8 Cush., 425. 
 81
 
 482 KOTICE OF DISHO>'OK OF COMMERCIAL PAPEE. 
 
 on the 2-itli, and on the same day was sent by a special 
 messenger to the Liverpool agent of such subsequent in- 
 dorser. It arrived at Liverpool on the 25th. The ordinary 
 business hours for merchants were as late as 8 or o'clock 
 in the evening, and the agent of the Manchester party called 
 upon the Liverpool indorser about o'clock, P. M., of the 
 day on which he received the notice, but found no one at 
 his countin<x-house with whom the notice could be left. 
 The 26th was Sunday, and the first indoi'ser did not actually 
 receive notice until the 27th. This was held sufficient to 
 charge him, because the subsequent indorser had used due 
 diligence, and was not required to lay aside all other busi- 
 ness in order to notify the antecedent party at the earliest 
 possible hour of the day ; but he had done all that was in- 
 cumbent upon him by sending the notice so that it arrived 
 on the day following that upon Avhich payment was refused 
 in time for delivery during business hours.^ 
 
 § 890. Addressed to Residence or Business Place When 
 Known. — But the service of notice by mail is, as we have 
 seen, much the better for the party giving it, both as to 
 safety and convenience, where the parties reside apart at 
 such a distance as to authorize notification through the post; 
 yet, in sending a communication of this kind, care should 
 be taken to direct to the party to be notified at his place of 
 residence or business, if either be known, or to the postoffice 
 nearest such residence or place of business. It will not suf- 
 fice that it is sent to the office where the party may be 
 found, unless it comes promptly to hand or is sent to the 
 place designated in the bill or note.- 
 
 §891. Must be Addressed to Place of Business. — So 
 where a note was made in Cincinnati, payable generally, and 
 the indorser resided in Indiana, but when the note matm*ed 
 was in the city of Washington, D. C, notice sent by the 
 post to him at the latter place was held not well served.* 
 
 1 Bancroft v. HaU, 1 Holt (N. P.), 476. 
 - Stoiy on Prom. Notes, § 343 et seq. 
 3 Burrows v. Hannegan, 1 McL., 309.
 
 MAXNEE AND MODE, 483 
 
 § 892. Indorser May be Notified at Place He Pretended 
 to Reside. — But when the indorser holds himself out to the 
 world as resident at a particular place, in case of dishonor 
 of the instrument indorsed by him, and notice is regularly 
 sent to such pretended place of residence, he will he estopped 
 to deny that it is his true place of abode, though he, in fact, 
 resides elsewhere, and the party giving the notice has made 
 no particular inquiry in order to learn Avhether he lived at 
 the place to which the notice was directed or not.' 
 
 § 893. Exception to Cases Where Mail Most Convenient 
 Mode. — A very obvious exception to the cases where notice 
 must be sent bv mail to the place of residence of the party 
 to be notified, or even where such would be the most pru- 
 dent or expeditious mode, would be where, at the time the 
 ' paper goes to protest, circumstances have rendered personal 
 notice quite as convenient as notice by mail. As in the case 
 of Miles V. Hall,- where the indorser was temporarily at the 
 place of payment, lying ill at the house of the notary who 
 undertook to serve the notice. It would have been suffi- 
 cient to charge him with notice, to have communicated the 
 facts b}'' means of a letter directed to him at his residence ; 
 but the notar}' undertook to serve the notice personally, 
 which he did b}^ entering the sick room of his guest, and 
 while there informed him of the contents of the A\T:*itten 
 notice, which he placed upon the mantel-piece. The court 
 held that the notary proceeded properly in giving personal 
 notice, which was always the best, and in this instance was 
 given in the most effectual mode practicable under the cir- 
 cumstances. 
 
 § 894. When Holder May Choose Between Places.— In 
 those cases that seem to be the best considered, the most 
 consistent with each other, and in harmony with the doc- 
 trines of the law merchant, the giver of the notice is not 
 required to discriminate with nicety between places, when 
 there are several which seem to be equally available. As 
 
 1 Lewiston Falls Bank v. Leonard, 43 Me., 144. 
 ■-'12Sm. & Marsh., 332.
 
 484 NOTICE or dishonor of commercial paper. 
 
 when the part}^ to be notified resides in two or more places 
 alternately ; or when he resides in the country, and receives 
 his letters from two different offices, without seeming to 
 give a decided preference to either ; or when he resides n-ear 
 one postoffice and carries on business in the neighborhood 
 of. another, receiving his mail matter sometimes at the 
 former and at other times at the latter.^ 
 
 § 895. Illustration of Above. — In one case, where the 
 party resided and carried on business in separate places, at 
 each of which there was a postoffice, and he had a box at 
 the one in the village where he carried on business, though 
 he received occasional letters at the other, it was held that 
 a notice sent to the one where he had a box, and where he 
 conducted Ms business, was properly served.^ 
 
 §896. Contra. — But in another case, it was decided, 
 where there was evidence that the indorser received letters 
 by mail at two separate offices, at one of which he had a 
 box, that notice was not properly served when directed to 
 the office where he had the box, because the other was near- 
 est his residence.^ Outside of the jurisdiction where this 
 case was decided, the courts would hardly be inclined to 
 adopt it as an authority, for the reason that it gives undue 
 importance to the matter of distance. 
 
 §897. Distance Made the Ooverning Fact. — In still 
 another case, by the same court, however, the lines are 
 drawn with even greater strictness.^ There the indorser to 
 whom notice was sent resided in the parish of C, in which 
 there was no postoffice ; so he received his letters at N. and 
 E., as it happened, without seeming to prefer either. The 
 case was allowed to turn entirely upon the question of con- 
 tiguity. The letter containing the notice was addressed to 
 the indorser at N., and the distance from the residence of 
 
 1 Infra, % 895 et seq. 
 
 2 Montgomery County Bank v. Marsh, 7 N. Y., 481. 
 
 3 Mechanics' & Traders' Bank of New Orleans v. Compton, 3 Bob. 
 (La.), 4. 
 
 4 Nicholson v. Marders, 3 Rob. (La.), 242.
 
 MANNER AND MODE, 485 
 
 the indorser to IST. and E. respectively was so nearly the 
 same as to require the testimony of witnesses to determine 
 which was the nearer of the two. So triflins^ was the dif- 
 ference of distance, in fact, that the witnesses called by the 
 parties to settle the important point failed to agree — some 
 swearing in favor of IST., and others declaring quite as posi- 
 tively for R. The matter being thus evenly balanced, the 
 com*t held that R. was the postoffice to which the notice 
 should have been sent, because the greatest number of wit- 
 nesses said that it was nearest to indorser'^s house, and there- 
 fore the indorser was discharged for want of notice.^ 
 
 § 898. Criticism of Foregoing — True Rule.— It is dif- 
 ficult to determine which of the two cases last cited is most 
 at fault. If the latter is open to criticism for adopting the 
 most arbitrary and unsatisfactory rule of evidence, in order 
 to settle a question of no value in determining the rights of 
 the parties, with no better end to subserve than the dis- 
 charge of a party from a just obligation, the former, by 
 deciding the same question upon evidence of a higher grade, 
 established the bad precedent. In deciding the latter case, 
 the court found itself trammeled by the rule already de- 
 clared, and could not feel justified in regarding the fact that 
 the party received his letters from both offices alike, as of 
 any special significance, when the precedent case put the 
 same state of facts aside, because there was another ofiico 
 nearer at hand than the one to which the notice was sent. 
 The true rule, both upon principle and authority, is that the 
 notice is sufficiently served, in respect to the postoffice to 
 which it is addressed, if sent to that one which is nearest to 
 the residence of the party notified, or at Avhich he ordina- 
 rily receives his letters. The citation of these cases, how- 
 ever, may be justified upon the ground that they illustrate 
 
 J To follow tills case as a precedent might seriously embarrass the 
 holder of dishonored commercial paper. In exceptional cases, like the 
 above, it would probably be less expensive to serve the notice personally 
 than it would be to ascertain beyond perad venture which one of two or 
 more offices was nearest the residence of the party to be notified.
 
 486 NOTICE OF DISHONOK OF COMMERCIAL PAPER. 
 
 the subject here treated, by showing what is not the law. 
 In this way, if no other, they may become usefuL 
 
 § 899. To Principal Office of Parish.— But where the 
 notice was addressed to an indorser at the principal post- 
 office of the parish in which he had his residence, it was 
 held prima facie sufficient, and cast upon such indorser the 
 burthen of showing in defense that there w^as another post- 
 office nearer to his residence.^ 
 
 § 900. To County Seat. — So it was held when the notice 
 was directed to the county seat of the county in which the 
 party resided, designating the particular locality in the 
 county, that it was properly sent, though the county seat 
 was nine miles from the residence of the indorser, and there 
 was another office within half a mile of his house.^ 
 
 § 901. To Principal Office of Town. — So, also, has it 
 been decided, that though there were several postoffices in 
 the town in Avhich the indorser had his residence, a letter 
 containing the notice addressed to the town postoffice was 
 sufficient, notwithstanding one of the other offices was 
 nearer his residence.^ This case seems to go to the very ex- 
 treme of liberal construction in order to preserve the liabil- 
 ity of indorsers of commercial paper. It is maintained that 
 the holder residing in a different towm is not supposed to be 
 able to learn at which of several postoffices the indorser re- 
 ceives his mail, so he is not required to inquire further than 
 for the town at which tlie indorser resides.'* 
 
 § 902. Should be Inquiry Made. — The case cited above 
 declares the doctrine more broadly than will be sustained 
 by the weight of authority. In many instances, no doubt, 
 notice sent to a drawer or indoreer, directed to the town 
 Avhere he resided, would be sufficient, even though there 
 are other offices in the same to^vn ; but the holder would 
 not be justified in sending such notice without the slightest 
 
 1 Yeatman v. Erwin, 5 La., 264. 
 
 2 Weakly v. Bell, 9 Watts, 373. 
 
 8 Bank of Maachester v. Slason, 13 Vt., 334.
 
 MANNEE AND MODE. i87 
 
 inquiry, and would certainly not be protected if he knew 
 that there were several offices in the same town, and had 
 cause to believe that reasonable inquiry would enable him 
 to discover at which one the indorser would be most likely 
 to receive a communication by mail. It is true that notice 
 directed to the town, generally, \^ prima facie sufficient, but 
 its sufficiency may be rebutted by proof that the indorser 
 received his letters at one office iii particular, and that the 
 holder might have ascertained this fact by proper 'inquiry.' 
 
 § 903. Proper Inquiry for Residence in Another Town. 
 So, in one case, the notar}^ who had protested the note in- 
 quired of the cashier of the bank by Avhich he was employed 
 for the residence of the indorser, and was told that it was H. 
 This was a town in which there were two postoffices, one of 
 which was situated at ]S"orth H., about three miles nearer 
 the residence of the indorser than the other, and was the 
 office at which he usually received his letters. The notary 
 was not aware of these facts, nor that there were two post- 
 offices in the town of 11., but sent the letter containing the 
 notice directed to the town, generally, and the court held 
 this sufficiently served to bind the indorser.^ 
 
 § 904. Sufficient Inquiry Question for Jury. — It has 
 been decided, where the notice was addressed to the town 
 generally, and there were several postoffices in the town, 
 that it was a question for the jury whether sufficient care 
 was exercised in forwarding the notice, to render it effective 
 and binding upon the party notified.' Between inhabitants 
 of the same town, but different villages, as we have already 
 seen,^ the notice may be sent by mail.' 
 
 § 905. Transient Indorser.— When the indorser resides 
 alternately at two places, going from one to the other, 
 
 1 Morton V. Westcott, 8 Cush., 425; Downer v. Remer, 21 "Wend., 10; 
 Roberts v. Taft, 120 Mass., 169. 
 
 2 Cabot Bank v. Eussell, 4 Gray, 167. 
 
 3 Downer v. Remer, 21 Wend., 10. 
 * Supra, g 850. 
 
 5 Ransom v. Mack, 2 Hill, 587.
 
 488 NOTICE OF DISHONOE OF COMMERCIAL PAPER. 
 
 notice directed to him at either, Avill, in general, be suffi- 
 cient.' So, when the indorser had no fixed place of resi- 
 dence, and the bill was dated at a hotel, proof that the 
 notice ^vas sent to such hotel, and received by the indorser's 
 wife, was held sufficient.' 
 
 § 906. Temporary Abode Not Residence. — But the fact 
 that a party to a bill or note resides a portion of the year 
 at a particular place will not constitute that his place of 
 residence, so as to render him chargeable w4th notice of 
 non-acceptance or non-payment, when it is directed to him 
 at the postoffice of such place.* 
 
 § 907. Member of Congress. — And the mere fact that 
 the indorser is known to be a member of congress is not 
 sufficient to warrant sending notice through the mail ad- 
 dressed to him at Washington, D. C, — especially when 
 he is known to have a residence in the state he represents; 
 though, if he have no fixed place of abode, notice addressed 
 to him at Washington would suffice.^ It has been held, 
 however, that notice of this kind was not well served upon 
 a member of congress, even during the session of that body, 
 by leaving it inclosed in a letter addressed to him in the 
 postoffice of the house of which he was a member, unless it 
 was actually received.^ 
 
 § 908. Last Known Residence, When Sufflcieut. — When 
 by the exercise of proper diligence the holder is unable to 
 ascertain the present residence of the party to be notified, 
 he may direct the letter containing the notice to hun at his 
 last known place of abode. In such case it may reach the 
 party for whom it was intended by being forwarded ; but 
 whether it does or not, the holder has done aU that could 
 reasonably be expected of him.*^ 
 
 lExch. & Banking Co. of N. O. v. Boyce, 3 Rob. (La.), 307. 
 2 Wharton^. Wright, 1 Carr. & Kir., 585. 
 SRiinyan v. Montfort, Busb. (N. C), 371. 
 
 4 Walker v. TunstaU, 3 How. (Miss.), 259; TunstaU v. Walker, 2 Sm. 
 & Marsh., 638. 
 
 5 Hill V. Norvell, 3 McLean, 583. 
 
 6 Wilson V. Senier, 14 Wis., 380,
 
 MANKEE AND MODE. 489 
 
 § 909. Diligent Inquiry for Unknown Residence. — But 
 
 ^vhen the residence of the party to be notified is unknown 
 to the party whose duty it is to give such notice, the latter 
 will not be excused merely because of such lack of knowl- 
 edge. He ought to make diligent inquiry — particularly of 
 the other parties to the bill when known to him. And for 
 a failure to make such inquiries in a case where the only 
 party known to the holder Uved at a distance of seventy 
 miles, the court held that the indorser was discharged be- 
 cause the holder might have communicated Avith the known 
 party by letter, and thus have learned the place of residence 
 of the indorser sought to be charged.^ 
 
 § 910. Inclosing Notices to All, to Last Indorser. — 
 Where there are several indorsers of a note, or indorsers 
 and drawer of a bill, and the last indorser only is known to 
 the holder in whose hands the instrument is dishonored, it 
 is a common practice to inclose the notices to all antecedent 
 parties in a letter notif3''ing the last indorser. This, how- 
 ever, will not suffice to charge them with notice, unless the 
 inclosures are promptly forwarded to the several parties to 
 the instrument.- In the case of Shelburne Falls l!^ational 
 Bank v. Townsley,^ where the antecedent party resided in 
 the same place as the party to whom the notice was sent 
 inclosed, it was held that a drop-letter containing such no- 
 tice should have been placed in the office on the same day 
 it was received. And where the antecedent parties reside 
 in another place, the notices intended for them should be 
 promptly forwarded to the proper postoffice of each,^ 
 
 § 911. Transitory Place of Business. — As notice left 
 at the place of business of resident parties is equall}^ as 
 efficacious as when left at the residence, so is the same 
 option allowed in giving notice by means of the post, where 
 the relative situation of the parties is not such as to require 
 
 1 Hill V. Van-ell, 3 Me., 233. 
 
 2 Stix V. Mathews, 63 Mo., 371. 
 3 102 Mass., 177. 
 
 * Stix V. Mathews, 63 Mo., 371.
 
 490 NOTICE OF DISHONOK OF COMaiEKCIAL PAPER 
 
 I)ersonal notice ; but the mere presence of the party in any- 
 particular place engaged in the transaction of business, 
 Avhen such business is transitory and the party is only tem- 
 porarih" located at the place, for the purpose of disposing 
 of his property there, or the like, will not constitute that 
 his place of business, so that he may be safely notified by a 
 letter addressed to him there.^ 
 
 § 912. By SlailWheii Holder and Indorser Are Fellow- 
 Townsmen. — It will often happen that the holder of a bill 
 or note, and his mimediate indorser or the drawer, may be 
 residents of the same place, and still the notice of dishonor 
 may be transmitted by mail, and the proof of its having 
 been properly addressed, and posted in due time, will be 
 suflBcient to charge the party so notified. As when the 
 holder and indorser of a bill of exchange were residents of 
 Montgomery, and the bill was drawTi on Mobile, where it 
 Avas sent to an agent of the holder for presentment, and on 
 j)ayment being refused, notice thereof was sent by post to 
 the indorser at Montgomery; this was held sufficient, for 
 the reason that the agent sending it stood in the place of the 
 real holder.^ 
 
 § 913. Agent of Holder, to Indorser in Same Place. — 
 So has it been held, where the agent for collection and the 
 party to be notified reside in the same place, but the actual 
 holder resides elsewhere, that the notice may be sent in this 
 manner by the agent to the indorser, with the same effect 
 as though they lived in separate post towns. The reason 
 for this holding was that as the agent might have given 
 notice by mail to his principal, and he in the same manner 
 to the indorser, it would be requiring an act useless in itself, 
 but one which would involve delay, to compel the agent to 
 adopt this circuitous mode of notification.^ 
 
 1 Walker v. Stetson, 14 Ohio St., 89. 
 2 Greene v. Farley, 20 Ala., 322. 
 
 ^ Gindrat v. Mechanics' Bank of Augusta, 7 Ala. , 324. See, also, Phil- 
 ipe V. Harberlee, 45 Ala., 597.
 
 MANNER AND MODE. 491 
 
 § 914. Circuitous Notice l)y Mail Between Residents 
 of Same Place. — It is competent for successive indorsers 
 to give notice, after receiving it, to tlieir own immediate 
 mdorsers, and so on to the last indorser or drawer, and 
 when their immediate indorsers live in another city or vil- 
 lage, the notification may be by mail. A modification of 
 the rule similar to that in the case last cited, ffrowinof out 
 of a series of indorsements of a bill of exchange, is exem- 
 phfied in the case of Eagle Bank i\ Hathaway.' The bill 
 was payable in Philadelphia to the order of A., who resided 
 in Providence. A. indorsed it to a bank in Providence, by 
 which bank it was indorsed and transmitted to a bank in 
 !N"ew York for collection. The i^ew York bank indorsed 
 and transmitted it for collection to a correspondent in Phil- 
 adelphia, by whom it was presented, and not being paid, 
 notice was duly forwarded by mail to the IS'cav York bank, 
 inclosing notices to prior indorsers. The jSTew York bank 
 forwarded notice in the same manner to the Providence 
 bank, by whom the notice to A. was deposited in the post- 
 olfice of that city, addressed to him. It was held that as 
 the notice might have been sent to A. by mail from Phila- 
 delphia or ]!^ew York, the Providence bank being merely a 
 conduit for the transmission of notice, and that if the in- 
 dorser had been anticipating notice of dishonor he would 
 have looked for it through the postoffice, the notice was 
 sufficient to bind him, though it might have been personally 
 served. 
 
 §915. Designated Place of Payment — Inquiry. — 
 Merely depositing a letter containing the notice in the of- 
 fice, addressed to the indorser, at the place Avhere the note 
 is made payable, wiU not suffice, unless the holder has ex- 
 hausted every means of information as to the residence of 
 the party. Inquiry at the bank and an examination of the 
 city directory would not suffice when inquiry might have 
 been made of other parties to the bill.- 
 
 15 Mete, 213. 
 
 2 Gilchrist v. Donnell, 53 Mo., 591. See, also, Barret v. Evans, 28 Mo. 
 331 ; Cbapcott v. Curlewis, 2 Moody & Rob,, 484.
 
 492 NOTICE OF DISHONOE OF COMMEKCIAL PAPEE. 
 
 §916. Put Upon Inquiry. — As where the holder had 
 
 been informed that the indorser hved on Long Island, that 
 was sufficient to put him upon inquiry, and, in the absence 
 of countervailing evidence, sufficient to warrant him in be- 
 lieving that such party lived in the city of New York, 
 notice sent him at the latter place would not be sufficient,^ 
 
 § 917. Insufficient Inquiry. — It has been held that in- 
 quiry made by a notary, in a bar-room, and on the street, 
 for the residence of a business man in a neiofhborine: village, 
 when he received no information in answer to his inquiries, 
 would not warrant him in sending the notice to the place 
 where the note was dated, without further inquiry.- 
 
 § 918. Sending Notice to Wliere Instrument Dated, In- 
 sufficient.— ISTor is the mere sending of the notice by mail, 
 directed to the drawer of a bill at the place where the 
 instrument is dated, sufficient to charge such drawer Avith 
 notice, in the absence of satisfactory proof that it was re- 
 ceived there in due course of mail.^ 
 
 § 919. Inquiry of Maker, Insufficient. — So, where the 
 holder of a dishonored note made inquiry of the maker, 
 and, on being advised by him to send the notice to the in- 
 dorser, directed to him at C, and the holder acted upon the 
 advice without further inquiry, though there was a post- 
 office mucli nearer than C, to the indorser's residence, it 
 was held to be an act of culpable negligence on the part of 
 the holder to rest content with the information obtained 
 upon such inquiry, and the indorser was discharged.^ 
 
 § 920. Acting on Information from One of tlie Parties, 
 Sufficient. — But where the note was held by a bank, and one 
 of the parties thereto gave the direction to the cashier, 
 where letters should be sent to reach the indorser, and, act- 
 ing on such adA^ce, the cashier sent the notice, according to 
 such direction, to a town in which there were four post- 
 
 ^Eandall v. Smith, 34 Bai'b., 452. See Granite Bank v. Ayers, 16 
 Pick., 392. 
 2 Spencer v. Bank of Salina, 3 Hill, 520. 
 
 3Lowery v. Scott, 24 Wend., 358; Sprague v. Tyson, 44 Ala., 388. 
 < Davis V. Williams, Peck (Tenn.), 191; Woods v. Neeld, 44 Pa. St., 86.
 
 MANNER AND MODE. 493 
 
 offices, without addressing the letter to eitlier in particular, 
 such notice was held sufficient, though the office bearing the 
 name of the town was nine miles from the residence of the 
 indorser.' 
 
 § 931. Inquiry of Drawer. — So, where the holder ap- 
 plied to the drawer of a bill for information as to the. 
 residence of the indorser, it was held that, as the drawer 
 was one in whom the indorser had reposed confidence, the 
 holder had a right to expect a correct answer from him, in 
 relation to the matter which had called forth such expres- 
 sion of confidence, and might safely rely upon it as such.- 
 And where the second indorser was apphed to under like 
 circumstances, it was held that the notary giving the notice 
 might act upon the information thus obtained without being 
 chargeable with negligence, though such information proved 
 to be erroneous.' 
 
 §922. Previously Acquired Knowledge. — So also has 
 it been adjudged sufficient diligence where the holder acted 
 upon his own previously acquired knowledge of the resi- 
 dence of the indorser, and directed the notice accordingly, 
 though by reason of a subsequent change of domicile, of 
 which the holder had no knowledge, the party so notified 
 may have failed to receive the letter in time.^ 
 
 §923. Former Communications. — Where a letter con- 
 taining notice of the dishonor of negotiable paper, ad- 
 dressed to the indorser .at the town of B. generally, was 
 received and responded to without objection, a subsequent 
 notice, directed to him in the same manner, by the same 
 notary, who was informed that he still lived at B., was held 
 
 I CatskiU Bank v. Stall, 15 Wend., 364. 
 
 ^Bank of Utica v. Bender, 21 Wend., 643. 
 
 a Ransom v. Mack, 2 Hill, 587; Harris v. Robinson, 4 How., 336. See 
 to the same purport, Hargen v. Bemis, 1 Thomp. & C. (N. Y.), 460. 
 
 4 Bank of Utica v. Phillips, 3 Wend., 408 ; Bank of Utica v. Davidson, 
 5 Wend., 587; Reid v. Payne, 16 Johns., 218; Requa v. Collins, 51 N. Y., 
 144 [unless he ought to have known of such change] ; Harris v. Mem- 
 phis Bank, 4 Humph., 519.
 
 494 NOTICE or dishoxoe or commercial paper. 
 
 sufficient, though there were several postoffices in B., none 
 of which were of the same name as the town, and notwith- 
 standing, also, that the indorser had removed from the town 
 since the receipt of the former notice. 
 
 § 924. Surname Alone Insufficient. — The notice may 
 be directed to the proper place, and still, from the manner 
 in which it is addressed, cast the burden of proving its due 
 receipt by the party to be charged, upon the party giving 
 the notice. As where the letter is addressed to the party 
 merely by his surname and is not directed to his residence 
 or place of business by number, but to the general dehvery 
 of a large city.- So, where the notice was addressed to the 
 " estate " of a deceased indorser, in the absence of proof of 
 diligent inquiry for the name of the executor, this was held 
 insufficient." 
 
 § 925. Belay Chargeable to Indorser. — But where the 
 negligence which occasions the delay is properly chargeable 
 to the indorser himself, he must bear the consequences. As 
 where he writes his name upon the instrument so illegibly 
 as to mislead one not perfectly acquainted with his writing, 
 or to leave room for a doubt as to the proper rendering of 
 his signature, the party giving the notice will be justified 
 in relying upon its appearance and addressing the notifica- 
 tion accordingly.* 
 
 § 926. Holder Misled l)y Place of Date.— So where a 
 bill was drawn, dated '* London," but not otherwise giving 
 the address of the drawer, and notice of its dishonor was 
 addressed to the drawer in the same general way, it was 
 held, notwithstanding the drawer's denial of receipt of no- 
 tice, and the furthei* fact that inquiry of the accej)tor would 
 have disclosed that he lived at Chelsea, there was sufficient 
 evidence of diligence to go the jury, and the court was of 
 
 iSaco National Bank v. Sanborn, 63 Me., 340. 
 
 -Walter v. Haynes, Ry. & Moody, 149; Ti-ue v. Collins, 3 Allen, 438. 
 
 3 Manchester Bank t". Oliver, 10 Gushing, 557. 
 
 * Manufactm-ers' Banku. Hazard, 30 N. Y., 236.
 
 MA^'XER AXD MODE. 495 
 
 the opinion that the notice was sufficient.' So, also, has a 
 notice addressed to the " legal representatives " of a de- 
 ceased party to a negotiable instrument been held sufficient.- 
 
 § 927. Address Should Include Name of State.— Eut in 
 addressing a letter containing a notice of this sort to a 
 party in any one of the states of the Union, the name of 
 the state should always form a part of the direction, as 
 there are frequently places in different states of precisely 
 the -same name.^ 
 
 §028. When Address Designated by Indoiser.— The 
 indorser has a right to designate with particularity the ad- 
 dress to which the notice shall be sent, and make it known 
 to all subsequent holders by writing the same on the back 
 of the instrument, in conjunction with his indorsement. And 
 when a place is so designated, the notice should be di- 
 rected there, unless the party giving notice is aware of the 
 indorser's removal subsequent to his indorsement.'* In fact, 
 should the indorser fail to receive the notice in time, by 
 reason of its being sent elsewhere than to such designated 
 address, he will be discharged.^ 
 
 § 929. Delay from Sending by Unnsual Route.— From 
 the language of the authorities already cited, as well as 
 upon principle, it would seem that in giving the notice 
 through the postoffice, it was not incumbent upon the per- 
 son giving it to select any particular route, it being suffi- 
 cient to post the letter in time to go by the outgoing mail. 
 It would also seem that where the giver of the notice under- 
 takes to send it by an unusual route, or in an unusual man- 
 ner, and its receipt is thereby delayed, the indorser will be 
 discharged fron\ liability ; but it has been held, when a notice 
 
 1 Burmester v. Barron, 17 Ad. & Ell. (Q. B.), 828 ; Mann v. Moors, Ry. 
 & Mood., 249; Claike v. Sharpe, 3 Mees. & Wels., 166. 
 
 2 Pillow V. Hardeman, 3 Humph. (Tenn.), 538; Boyd v. Savings Bank, 
 15 Gratt., 501. 
 
 3 Beckwith v. Smith, 22 Me., 125. 
 * Peters v. Hobbs, 25 Ark., 67. 
 
 5 Bartlett v. Robinson, 39 N. Y., 187.
 
 496 NOTICE OF DISHONOE OF COMMERCIAL PAPER. 
 
 was sent by a designated route and under cover to another, 
 whereby its arrival was delayed several days beyond the 
 time it would have corae to hand under a general direction, 
 addressed to the indorser at his place of residence, that the 
 notice was sufficient, as the notary sending it might choose 
 the route, and was not bound to choose the shortest.^ This 
 case was decided, however, by a divided court, the better 
 reason being with the dissenting opinion. The case is 
 scarcely entitled to be followed generally as an authoritj^. 
 
 IBank of Utica v. Smith, 18 Johns., 230.
 
 WAIVEK AND EXCUSE. 4:97 
 
 Y. Waiver and Excuse. 
 
 i 930, General Character of Waiver. 
 
 931. Division of Subject. 
 
 933. Waiver May be Antecedent or Subsequent. 
 
 933. Antecedent Waiver in Writing. 
 
 934. Eifect of " Protest Waived." 
 
 935. "I Waive Demand of Protest." 
 
 936. Waiver of Notice Does Not Include Presentuieut 
 
 937. No Special Form Required. 
 
 938. Waiver by Letter. 
 
 939. May be Verbal. 
 
 940. May be Established by Circumstances. 
 
 941. Promise to Maker, 
 
 943. When Promise Supported by Consideration. 
 
 943. Indemnity Does Not Always Waive. 
 
 944. Note for Real Estate, Legal Title Still in Grantor. 
 
 945. Where Waiver Depends on Sufficiency of Indemnity. 
 
 946. Indemnity Taken for His Own Security. 
 
 947. Illustration of Foregoing Doctrine. 
 
 948. Indorser with Funds of Maker Does Not Become Principal 
 
 949. Assignment to Trustees Will Not Excuse. 
 
 950. Taking Mortgage of All Maker's Property Held No Waiver. 
 
 951. Indemnity Stronger Reason for Notice. 
 
 952. Illustration. 
 
 953. Indorsement of Renewal Note. 
 
 954. Request No Waiver When Not Acceded to. 
 
 955. Waiver by Indorser. 
 
 956. Conflicting Views. 
 
 957. Conditions of Waiver by Subsequent Promise. 
 
 958. Subsequent Promise Without Knowledge. 
 
 959. Promise, Express and Implied. 
 
 960. ImpUed Promise. 
 
 961. Promise to " See it Paid." 
 
 962. Recitals in Contract Acknowledging BiU. 
 
 963. Subsequent Waiver Must be Unequivocal. 
 
 964. Admissions to Strangers Do Not Amount to Waiver. 
 
 965. Anxiety to Have the Bill Paid, Not Waiver, 
 
 966. Where Subsequent Promise Evidence of Notice. 
 
 967. Subsequent Promise a Waiver. 
 
 968. Even Written Admission Not Conclusive. 
 
 969. Subsequent Promise Either Waiver or Admission. 
 
 970. Onus Probandi. 
 
 971. Subsequent Promise Prima Fade Evidence of Diligence. 
 
 82
 
 498 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 § 972. Evidence of Knowledge of Laches. 
 
 973. Onus Cast Upon the Holder. 
 
 974. Principles Governing the Question. 
 
 975. Knowledge of Facts and Not Their Legal Effect. 
 
 976. Excuses of a General Nature Enumerated. 
 
 977. Excuses of a Special Character. 
 
 978. Inevitable Accident. 
 
 979. Pi-e valence of Malignant Fever. 
 
 980. Existence of War. 
 
 981. Interdiction of Commerce. 
 983. Actual Hostilities. 
 
 983. Late War. 
 
 984. Interruption of Postal Communication. 
 
 985. War Wliere Note Payable. 
 
 986. Not Excused if Intercourse Legal. 
 
 987. Loss of Note by War No Excuse. 
 
 988. Entitled to Notice When Obstruction Removed. 
 
 989. Party Not Required to Violate Law of His Domicile. 
 
 990. Due Diligence. 
 
 991. Notice of Facts Excusing Demand. 
 
 992. Obstructions Removed — Demand and Notice. 
 
 993. Death of Holder. 
 
 994. Sudden Sickness and Death of Agent. 
 
 995. Sickness Must be Sudden and Severe. 
 
 996. Special Excuses Treated as Waiver. 
 
 997. Bill Drawn for Benefit of Drawer. 
 
 998. Note for Accommodation of Payee. 
 
 999. For Accommodation of Drawee or Acceptor. 
 
 1000. Not Excused by Promise of Drawer to Provide for Bill. 
 
 1001. No Funds in Hands of Drawer. 
 
 1002. Application of the Rule Confinedv 
 
 1003. American Cases Decided on Insufficient Reason. 
 
 1004. No Right to Expect Payment. 
 
 1005. Drawer Against Goods in Transitu. 
 1006._ Opinion of Marshall. 
 
 1007. Illustration. 
 
 1008. Mere Existence of Credit. 
 
 1009. Expectation of Payment Must Continue to Maturity. 
 
 1010. Need Not be Anticipated from Drawee. 
 
 1011. Promise from Drawee. 
 
 1012. Where Drawee Has Already Honored Drafts. 
 
 1013. Running Account Between Parties. 
 
 1014. Suspecting Absence of Funds, No Excuse. 
 
 1015. Drawer Being in Debt to Drawee, No Excuse. 
 
 1016. No Expectation of Funds at Place, No Excuse.
 
 WAIVER AJSTD EXCUSE. 499 
 
 § 1017. No Excuse for Failing to Notify Indorser. 
 
 1018. Accommodation Indorser. 
 
 1019. Indorser, with Notice of Facts Excusing Notice. 
 
 1020. Former Partnership Between Drawer and Drawee, No Excuse. 
 
 1021. Partner Drawing Upon His Firm, Not Entitled to Notice 
 
 1022. Goods Purchased for Use of Firm, Will Not Excuse. 
 
 1023. Fraud by Indorser Excuses Notice. 
 
 1024. Motives for Indorsement Immaterial. 
 
 1025. Adding the Word " Surety," No Excuse. 
 
 1026. Presence of Indorser When Payment Refused, No Excuse. 
 
 1027. Attachment of Funds, No Excuse. 
 
 1028. Note Void at Inception, Notice Unnecessary. 
 
 § 930. General Character of Waiver.— The conse- 
 ■ quences of a waiver of notice by an indorser or drawer, or 
 of anything by which notice will be excused, are substan- 
 tially the same. The party who otherwise would be en- 
 titled to notice of the dishonor of the bill or note, as a 
 condition precedent to the fixing of his liability, by such 
 Avaiver, or facts excusing notice, becomes unconditionally 
 liable. But notwithstanding the identity of results, there is 
 an essential difference between what is described in the 
 books as a waiver, and what is held to excuse the notice by 
 which the obligation, implied by the act of drawing a bill or 
 indorsing a note, loses its conditional character and becomes 
 a fixed hability. The waiving of this right is either ex- 
 pressly or by implication the voluntary act of the party for 
 whose benefit the law requires the notice to be given. "While 
 matters in justification or excuse of the omission of duty on 
 the part of the holder may arise without any act of volition 
 on the part of the antecedent party whose habihty depends 
 upon notice.^ 
 
 § 931. Division of Subject. — In treating this branch of 
 our subject the voluntary act of the party, by which the 
 necessity for notice is dispensed with, will be considered firet 
 in order ; and secondly, such matters as are held to excuse 
 the giving of due notice, without regard to the intentions of 
 the party to be notified. 
 
 1 Story on Pi-om. Notes, g 358.
 
 500 KOTICE OF DISHONOR OF COMMEECIAL PAPEK. 
 
 § 033. Wairer May l>e Antecedent or Subsequent. — 
 
 Judge Story lays down the doctrine that in cases of waiver, 
 strictly so called, the indorser is discharged from all liability 
 by the antecedent laches of the holder or other party ; and 
 he incurs a new liability by his subsequent assent and waiver 
 of his rights, after the laches is incurred, and has been fully 
 made known to him.^ But if we are to follow this learned 
 author in what he says in the same coimection respecting 
 an excuse for the omission or neglect of due notice, and 
 hold with him that it is " in its nature a justification for 
 such omission or neglect, without any consent, express or 
 impUed, on the part of the indorser, to be bound by it," we 
 shall find many instances where notice is voluntarily dis- 
 pensed with by the indorser or drawer, long prior to the 
 maturity of the instrument, and consequently before the 
 holder could have been guilty of laches, and will feel justi- 
 fied in classing these as instances of waiver. This classifica- 
 tion not only seems logical and consistent, as there can be 
 no good reason why a right may not be waived in advance, 
 but it has the additional advantage of meeting the general 
 understanding of a proper application of the term. 
 
 § 933. Antecedent Waiver in Writing. — A common ex- 
 ample of express waiver before maturity is when by apt 
 words the intention to dispense with this formahty is ex- 
 pressed upon some portion of the instrument, or there is an 
 express waiver of demand, as " I hereby waive protest on 
 the within note, and hold myself bound for the payment of 
 the same, as if legally protested; "^ or "I hereby waive 
 notice, demand, protest and due diligence ; " ' and even 
 where it was written in the note, " Protest and notice of 
 protest waived," this was held sufiicient to waive not only 
 notice, but demand.* 
 
 1 Story on Prom. Notes, § 358. 
 2BaU V. Greaud, 14 La. An., 305. 
 »Neal V. Wood, 23 Ind., 533. 
 * Gordon r. Montgomery, 19 Ind., 110.
 
 WAIVER AND EXCUSE. 501 
 
 §934. Effect of "Protest Waived."— So, where the 
 words "protest waived" were used with reference to a prom- 
 issory note, it was held to amount to a waiver of both 
 demand and notice, notwithstanding the fact that tlie mean- 
 ing which attaches to the word "protest" is entirely differ- 
 ent from that of the word " notice." The former is only 
 applicable in strictness to foreign bills of exchange, while 
 the latter applies to bills botli foreign and inland, and nego- 
 tiable promissory notes, indiscriminately. But when applied 
 to promissory notes, the word " protest," by general usage 
 and understanding, means the taking of sbch steps as are 
 necessary to charge an indorser, which include both demand 
 and notice.* 
 
 § 935. " I Waive Demand of Protest."— So, also, where 
 the indorsers, on the transfer of a note to plaintiff, agreed 
 to indorse it and waive demand and notice, and accordingly 
 made the following indorsement thereon, signed by them in 
 their firm name: "I waive demand of protest," it was held 
 that the language of the indorsement, although clumsily 
 worded, might be construed as implying an intention to 
 waive both demand and notice, and that, if the language 
 were too indefinite or ambiguous, the meaning might be 
 made out by parol.^ 
 
 § 936. Waiver of Notice Does Not Include Present- 
 ment. — The waiver may be embodied in the instrument 
 over the signature of the drawer or maker, and thereby be- 
 come binding upon all those who subsequently become 
 parties thereto,^ or it may be incorporated with the contract 
 of indorsement of one of the parties, so as to be binding 
 upon himself, without affecting subsequent or prior parties 
 to the bill or note. In general, a waiver of notice does not 
 
 1 Carpenter v. Reynolds, 43 Miss., 807; Jaccard v. Anderson, 37 Mo., 91. 
 
 2 Porter v. Kemball, 53 Barb., 467; Union Bank v. Hyde, 6 Wheat., 
 572. Contra, Bird v. Le Blanc, 6 La. An., 470; Wall v. Bry, 1 id., 312. 
 
 "Bryant v. Merchants' Bank of Ky,, 8 Bush, 43; Smith v. Lockridge, 
 id., 423; Lowry v. Steele, 27 Ind., 168; Woodman v. Thurston, 8 Cush., 
 157.
 
 502 KOTICE OF DISnONOE OF COMMEKCIAL PAPER. 
 
 include presentment or demand, nor does it, by implication, 
 excuse a failure in either of these respects ; ^ but this rule is 
 modified somewhat to meet the peculiar circumstances of 
 particular cases. It depends, to some extent, upon the time 
 when the waiver is made. Accordingly, where such waiver 
 was indorsed on the note on the day of maturity — after 
 the holder had informed the prior party that he had been 
 to the j)lace of payment, and there were no funds there, the 
 written waiver of notice of protest was held to waive any 
 irregularity of demand as well as notice.- 
 
 § 937. No Special Form Required. — iJlo particular form 
 of words is necessary to waive notice. Whatever language 
 is employed, it wiU be suificient if it convej^s the informa- 
 tion that the indorser or drawer intends to absolve the 
 holder from the exercise of that diligence in making demand 
 and giving notice of dishonor which the law imposes. So 
 where there was added to the blank indorsement the word 
 "accountable," this was held to be a waiver of demand and 
 notice;^ and the same construction was, in another case, 
 given to the words " eventually accountable," when added 
 to his indorsement by the party transferring the note.* The 
 following waiver, indorsed upon a note, was held sufficient 
 to dispense with demand and notice: "I assign the within 
 note to J. T., and hold myself responsible for the payment 
 of the same ; the said P. [the maker] to have two years to 
 pay the same, unless he prefer to pay sooner, interest on the 
 same to be paid annually." ^ 
 
 §938. Waiver by Letter. — But instances of waiver prior 
 to maturity are by no means confined to cases where the 
 written waiver is made part of the instrument, or indorsed 
 
 iVoorhies v. Atlee, 29 la., 49; Buchanan v. Marshall, 33 Vt., 561; 
 Drinkwater v. Tebbetts, 17 Me., 16; Berksbh-e Bank v. Jones, 6 Mass., 
 534 ; Backus v. Shipherd, 11 Wend. , 639 ; Burnham v. Webster, 17 Me., 50. 
 
 2 Scull V. Mason, 43 Pa. St., 99; Mills v. Beard, 19 Cal., 158; Fisher v. 
 Pi-ice, 37 Ala., 407. 
 
 3 Fui-ber v. Caverly, 42 N. H., 74. 
 
 * McDonald v. Bailey, 14 Me., 101. 
 
 5 Airey v. Pearson, 37 Mo., 424.
 
 WAIVEK AKD EXCUSE. 503 
 
 thereon when the note is transferred. Where the indorser, 
 a few days previous to the maturity of tlie note upon whicli 
 he was hable, wrote to the holder, informing him that the 
 maker had failed, acknowledged his own liability, and asked 
 indulgence until funds could be realized from securities held 
 by him from the maker, this acknowledgment was held 
 sufficient to dispense with both demand and notice.* 
 
 § 939. May be Yerbal. — Nor is it even necessary, to 
 render the waiver of notice effectual to bind the drawer or 
 indorser, that it should be reduced to writing. It has been 
 held, in a few isolated cases, that as the Avritten indorse- 
 ment is the highest and best evidence of the indorser's con- 
 tract, it could not be varied or modified by a parol promise, 
 and consequently, a contemporaneous verbal promise by the 
 indorser, to pay the note in the event the maker did not, 
 would not dispense with notice of dishonor.- But this view 
 of the question is ably controverted by Judge Loweie, in 
 Barclay v. Weaver.^ The learned judge frankl}' says : " I 
 decided this cause while I was judge of the court below. 
 * * * But on the first point, I am convicted and convinced 
 of error. That point presents the question, may a party 
 prove by parol testimony, that, at the time of the indorse- 
 ment of a promissory note, it was agreed that the indorser 
 should be absolutely bound for the payment of it, without 
 the usual demand and notice ? This was answered in the 
 negative in the court beloAv, on the principle that oral testi- 
 mony cannot be heard to vary the terms of a written con- 
 tract. It is not so, * ■^ * The most, therefore, that can 
 be said of an indorsement of negotiable paper is, that from 
 it there is implied a contract to pay on condition of the 
 usual demand and notice ; and that this implication is liable 
 to be changed on the appearance of circumstances incon- 
 sistent with it, whether those circumstances be shown orally 
 
 1 LeffingAvell r. White, 1 Johns. Cas., 99; Minturn v. Fisher, 7 Cal., 
 573; Yeagerr. Farwell, 13 Wall., 6. 
 ■■^ffightower v. Ivey, 2 Port. (Ala.), 308; Barry v. Morse, 3 N. H., 132. 
 » 19 Pa. St., 396.
 
 504 NOTICE OF DISHONOR OF COMMEECIAL TAPER. 
 
 or in writing." And in the same connection — " But it may 
 well be questioned whether the condition of demand and no- 
 tice is trul}" part of the contract, or only a step in the legal 
 remedy upon it." Although the reasoning of this opinion has 
 not been fully adopted in cases where the same result is 
 reached, the decided weight of authority is in favor of the 
 doctrine that the conditions of the indorser's or di-awer's 
 contract may be waived by a parol contract, and that parol 
 testimony of circumstances tending to show a waiver of 
 such conditions will be competent to establish the fact.^ 
 
 § 940. May he Established by Circumstances. — As 
 already intimated, the fact of waiver of notice may be 
 established by the proof of circumstances, inconsistent with 
 the right of the antecedent party to insist upon the ob- 
 servance of the conditions of his contract, as well as by the 
 express promise of such party. IS'ot the least common of 
 these chcmnstances is the verbal declaration of the indorser 
 or drawer, which implies a waiver of the conditions upon 
 which his contract depends. As where the maker and in- 
 dorser of a note resided in the same house, and the holder 
 sending a written notice to the maker on the day of its 
 nominal maturity — before the expiration of the three days 
 of OTace — the maker was absent from home, and the 
 holder's messenger exhibited the note to the indorser, Avho 
 read it and informed the messenger that the maker would 
 see the holder in a short time, and wished him not to sue 
 the note until the maker could see him, it was held that 
 this was a request for further forbearance, and was calcu- 
 lated to induce the holder to believe that measures were 
 being taken to meet the note. It was held to amount to 
 an impUed waiver of demand and notice.' So where th*^ 
 drawer requested the holder not to present the draft 
 
 1 Fuller V. M'Donald, 8 Me., 213; Lane v. Steward, 20 Me., 98; Farm- 
 ers' Bank V. Waples, 4 Harr. (Del.), 429; Phipson v. Kneller, 1 Stai'k., 
 116; Barker v. Parker, 6 Pick., 80. 
 
 a Gove v. Vining, 7 Mete., 213.
 
 "WAIVEK AND EXCUSE. 505 
 
 once, but to hold on to it for a time, he v, as held thereby to 
 have waived demand and notice.^ 
 
 §941. Promise to Maker.— So, also, in Marshall v. 
 Mitchell,^ the language of Judge Wells, in rendering the 
 opinion, is, " that the promise of defendant (the indorser), 
 several months before the note is due, made to the maker, 
 that he would take it up, was a fact of which the plaintiff 
 (the holder) had a right to avail himself. * * - When 
 the indorser says to the maker, he will pay the note, it is a 
 declaration that the other parties need not give themselves 
 any trouble in relation to it." It is probable, however, that 
 whether a merely gratuitous promise of this kind, made b}'^ 
 the indorser to the maker, would operate to absolve the 
 holder from the, duty of giving the promisor due notice of 
 dishonor, would depend somewhat upon the holder's having 
 notice of such promise. But where the indorser informed 
 the holder of the failure of the maker, before the note be- 
 came due, and said further that he should have no trouble 
 about it, as the note should be paid, this was properly held 
 a waiver of demand and notice, though neither of these 
 conditions were expressly mentioned.^ And upon the same 
 principle, where the indorser, at the time of the transfer of 
 the note, informed the indorsee that he would be at the 
 place of payment when the note fell due, and would then 
 take it up if it were not paid by any other party to it, this 
 was held to be an agreement to pay on but one condition, 
 and that all others implied in the contract of indorsement, 
 including that of notice, were waived."* 
 
 § 942. When Promise Supported by Consideration.— 
 It is equally certain that where the promise to the maker 
 is not a mere gratuity on the part of the indorser, but is 
 supported by a valid consideration, as the return of the 
 original consideration of the note, or where other property 
 
 1 Sheldon v. Chapman, 31 N. Y., 644 
 
 2 35 Me., 221. 
 
 3 Whitney v. Abbot, 5 N. H., 378. 
 
 *Boyd V. Cleveland, 4 Pick., 524; Lane v. Steward, 20 Me., 98.
 
 50G NOTICE OF DISHONOE OF COMMEKCIAL PAPEE. 
 
 of the maker is taken absolutely by the indorser, with the 
 agreement to take up the note, whether this be before or 
 after dishonor, it will amount to a waiver of all the condi- 
 tions of the contract of indorsement.^ 
 
 §943. ludemuity Does Not Always Waive. — But the 
 principle upon which notice is waived, or excused, by the 
 acceptance of indemnity, on the part of an indorser, and 
 his undertaking to become the j!)rincipal debtor, has been 
 carefully restricted in its application, so as not to include 
 all cases where the party conditionally liable is indemnified 
 against loss. Some of the cases holding that notice is 
 waived or excused by indemnity taken are decided upon 
 the ground that the want of notice can work no injury to 
 the indorser, provided he holds sufficient secm^ity to save 
 him harmless ; - and others, where the indorser has taken a 
 general assignment of all the maker's property before ma- 
 turity of the note, upon the ground that the indorser, having 
 already acquired all that he could obtain by pursuing his 
 remed}" against the maker, will not desire to avail himself 
 of such remedy, and consequently notice would be fruitless.' 
 Most of the cases cited, where these doctrines are broadly 
 announced, seem to be decided in accordance with sounder 
 principles than those loosely stated as the ground of the 
 decisions. 
 
 § 944. Note for Real Estate, Legal Title Still in 
 Grantor. — For example, in Develing v. Ferris,"* the note 
 was given for real estate sold by the indorser to the maker, 
 
 1 Andrews v. Boyd, 3 Mete, 434 ; Taunton Bank v. Richardson, 5 Pick., 
 436; Scott v. Greer, 10 Pa. St., 103. 
 
 2Holman v. Whitney, 19 Ala., 703; Barrett v. Charleston Bank, 3 
 McMullen, 191 ; Stephenson v. Primrose, 8 Port. (Ala.), 155. 
 
 3 Mechanics' Bank v. Griswold, 7 Wend., 165; Bond v. Farnham, 5 
 Mass., 170; Commercial Banku. Hughes, 17 Wend., 94; Peny v. Green, 
 19 N. J. Law, 61 ; Bai'ton v. Baker, 1 Serg. & R., 334; DeveUng v. Ferris, 
 18 Ohio, 170; Stephenson v. Primrose, siijyra; Bank of South CaroUna 
 V. Meyers, 1 BaUey, 412 ; Kyle v. Greene, 14 Ohio, 495 ; Kramer v. San- 
 ford, 4 Watts & S.. 328; Walters v. Munroe, 17 Md., 154; Prentiss r. 
 Danielson, 5 Conn., 175. 
 
 4 18 Ohio, 170.
 
 WAIVEE AND EXCUSE. 507 
 
 and the legal title was expressly reserved by the grantor, 
 until the payment of the purchase money. This amounted 
 to more than the taking of indemnity, the sufficiency of 
 which could only be approximate!}^ determined, and more 
 than the acceptance of an assignment of the maker's entire 
 estate, regardless of its sufficiency. Kyle v. Greene ' pre- 
 sents substantially the same state of facts, and the conclusion 
 reached is the same. 
 
 § 945. Where Waiver Depends on Sulliciency of In- 
 demnity. — The reasoning upon which those cases depend, 
 where the question of waiver is made to turn upon the suf- 
 ficiency of the indemnity, and that to the extent of the 
 value of the indemnity the indorser may be held hable 
 without notice, because he suffers no injury on account of 
 its omission, is calculated to open a question of fact, sub- 
 versive of the doctrine of notice of dishonor of negotiable 
 securities, in its application to all cases. If, where the in- 
 dorser has received collateral security, Ave are to inquire into 
 its sufficiency to determine whether he Avill be required by 
 a failure to give him notice of the dishonor of the instru- 
 ment upon which he has become conditionally liable, there 
 seems no reason why, in every case that may arise, the con- 
 ditional nature of his contract may not be made to depend 
 upon the question whether he is really prejudiced by a fail- 
 ure to give the notice within the time and in the manner 
 and mode which the courts have almost universally agreed 
 upon as reasonable and just. It is well known that in reply 
 to the defense of insufficient notice, the courts will not enter- 
 tain the excuse that the indorser suffered no injury by the 
 omission or neglect. They will not go into detailed exam- 
 ination of the condition of the parties and the circumstances 
 of the transaction in order to determine whether the general 
 rule will apply.- 
 
 § 946. Indemnity Taken for His Own Security. — 
 Where, however, the indorser has, by his own voluntary act, 
 
 1 14 Ohio, 495. 
 
 2 Hill V. Martin, 13 Mart., 177; Dennis v. Mortice, 3 Esp., 158.
 
 OOS KOTICE OF DISnONOK OF COMMEKCIAL PAPER. 
 
 rendered it impossible for the maker to pay a note, or has 
 received into his own hands a fund sufficient to satisfy 
 the same, under a contract, express or implied, to become 
 the principal debtor, there is abundant reason for holding 
 that he thereby waives demand and notice, and consents 
 that the obligation he has assumed shall become fixed 
 and unconditional.' But the mere taking of security to 
 indemnify him against possible loss does not alter the 
 character of his original undertaking. The promise which 
 the law implies from his indorsement is that 'if payment 
 of the note or bill is demanded at maturity, if payment 
 is refused, and if he is duly notified of the non-payment, 
 then he Avill be bound to pay the same, and is entitled to 
 look to the party ultimately hable for reimbursement. 
 This is the nature of the liability against which he seeks 
 to be indemnified, and until all the contingencies upon 
 which that liability depends have happened, and all the 
 conditions duly performed by the obligee, his obligation to 
 subsequent parties retains its conditional character. When 
 the time within which he should be notified has expired, he 
 may safely return his security to the hands from which it 
 was received. The indemnity was taken for his own secu- 
 rity, and he is under no obligation to retain it for the bene- 
 fit of other parties on the same paper.^ 
 
 § 947. Ilhistratiou of Foregoing Doctrine. — In Clegg 
 13. Cotton,' the drawer of a bill of exchange, being the agent 
 of the drawee, had placed funds in the hands of the in- 
 dorser by way of indemnity, which were to be returned on 
 
 iSeacord v. Miller, 13 N. Y,, 55; Denny v. Palmer, 5 Ired., 610; Cor- 
 noy V. Da Costa, 1 Esp., 303. 
 
 -Denny v. Palmer, 5 Ired., 610; Seacord v. MUer, 13 N. Y., 55; Tay- 
 lor V. French, 4 E. D. Smith, 458; Spencer v. Harvey, 17 Wend., 459; 
 Clegg V. Cotton, 3 Bos. & Pul., 239; Oswego Bank v. Knower, HiU «fe 
 Dan., 132; Ray v. Smith, 17 WaU., 411; Watkins v. Crouch, 5 Leigh, 
 522; Marshall u. ]Mitchell, 34 Me., 227; Haskell v. Boardman, 8 Allen, 
 38; Wilson v. Senier, 14 Wis., 380; Moses v. Ela, 43 N, H., 557; Holland 
 V. Turner, 10 Conn., 308. 
 
 33 Bos. & Pul., 239.
 
 WAIVER AND EXCUSE. 509 
 
 his release from liability. The court held that he was re- 
 leased by a failure of the holder to notify him of the dis- 
 honor of the bill, and could consequently return the funds 
 held as security. 
 
 § 948. ludorser with Funds of Maker Does Not Become 
 Principal. — In Kay v. Smith,' the funds in the hands of the 
 indorser were derived from the profits of business carried 
 on by the indorser and maker as partners, and the latter 
 had merely authorized the former to apply them to the pay- 
 ment of the notes at their maturity, but the court refused 
 to decide, as a conclusion of law, that the indorser, as be- 
 tween himself and the maker, had assumed the obligation 
 of a principal debtor. 
 
 § 949. Assignment to Trustees Will Not Excuse.— The 
 prominent circumstances of the case of Watkins v. Crouch - 
 were, that there was an assignment to a trustee of all the 
 maker's property, in trust to pa}^ off several debts, and 
 among them one-fourth the principal and interest of the 
 note upon which the defendant was an indorser. This was 
 held insuflBcieut to dispense with notice of the dishonor. 
 
 § 950. Taking Mortgage of All 3Iaker's Property, Held 
 No Waiver. — In Haskell v. Boardman,* the point decided 
 was that a mortgage of all the maker s property, accepted 
 by the indorsers, conditioned that the grantor shoidd per- 
 form all contracts which the grantees had theretofore or 
 should thereafter sign, indorse, etc., and save the said grant- 
 ees harmless from all costs and expense in consequence 
 tliereof, would not amount to a waiver of notice of dishonor 
 of the instrument indorsed. 
 
 §951. Indemnity Stronger Reason for Notice.— In ren- 
 dering the opinion in Taylor v. French,'' the learned judge 
 declares that instead of the security for the indorsement 
 affording a reason for dispensing with notice to the indorser 
 
 »17WaU.,411. 
 
 2 5 Leigh, 523. 
 
 3 8 AUen, 38. 
 
 *4E. D. Smith, 458.
 
 510 NOTICE OF DISHONOR OF COMMEKOL&X PAPER. 
 
 thus secured, it furnishes a stronger reason why he should 
 be informed of the non-payment. "Without notice thereof 
 he might suppose it to have been paid, and, in consequence 
 of such neglect, have parted with his security. Substan- 
 tially the same reasoning is employed by Judge Bissell in 
 rendering the opinion in the case of Holland v. Turner.^ 
 
 § 1)52. Illustration. — The possibilities hinted at above 
 are practically illustrated by an early English case.^ There, 
 certain notes were indorsed by G. for D,, who was insolv- 
 ent. A fcAV days before maturity the indorser informed 
 the holder that if the note was sent him he would pay it. 
 This was construed to mean that he would pay it if it came 
 to him in the regular way after being duly presented. At 
 the time of making the offer, the indorser had in his posses- 
 sion a fund belonging to D. from which to pay the note. 
 Demand not being made until three days after maturity, the 
 indorser gave up the funds and was held discharged for 
 want of due notice. 
 
 § 053. Indorsement of llenewal Note. — It has been held 
 that the mere indorsement of a renewal note, in anticipa- 
 tion of the non-payment of the original obligation at ma- 
 turity, where the bank holding the original refused to 
 discount the renewal, will not amount to waiver of notice ; 
 for notwithstanding the fact that the maker may fail to 
 renew, this would not be conclusive evidence that payment 
 was impossible.^ 
 
 § 954. Request No Waiver When Not Acceded to. — The 
 very limit of strictness in favor of the indorser's right to 
 notice seems to have been reached, if not overstepped, in 
 the case of Cayuga Bank v. Dill.* There the indorser 
 called upon the holder on the day of the maturity of the 
 instrument, and told him that the maker would not pay, 
 as he was absent from the country, and to let it lie over 
 
 110 Conn., 308. 
 
 2 Nicholson v. Gouthit, S H. Bl., 609. 
 
 3 May V. Boisseau, 8 Leigh, 164. 
 * 5 Hill, 403.
 
 WAIVEE AND EXCUSE. 511. 
 
 until his return, when $100 would be paid, and the note re- 
 newed for the balance. The holder failed tq protest the 
 note, through a mistake of the clerk of the bank, as to the 
 day of its maturity, and not on account of this conversa- 
 tion ; and for this reason alone it was held that the express 
 request of the indorser, to let the note lie over, did not 
 amount to a waiver, and he was consequently discharged by 
 the laches. 
 
 § 955. Waiver by Indorser. — Although a waiver of no- 
 tice in the body of the instrument will be binding upon all 
 those who become parties thereto, the same result does not 
 follow a waiver by the first indorser. Each indorsement is 
 the personal obligation of the party who makes it, and the 
 subsequent indorser will be entitled to notice notwithstand- 
 ing a waiver thereof by a prior party. ^ 
 
 § 956. Conflicting Yiews.— There is a lack of harmony 
 between the authorities, respecting the consequences of a 
 promise by the indorser or drawer to pay the dishonored 
 instrument. This difference, however, is in regard to the tech- 
 nical operation of such subsequent promise, as well as the 
 extent to which it affects the liability of the promisor. The 
 cases of one class are decided upon the hypothesis that there 
 has been a failure of notice; but by the subsequent promise 
 they hold the neglect or omission is waived.'- Those of 
 another class are decided upon the theory that although 
 there is no direct proof of notice, the subsequent promise 
 raises a presumption that such notice was given, which can 
 only be overcome by proof of the negative of that proposi- 
 
 1 Central Bank v. Davis, 19 Pick., 373. 
 
 2 Hopkins v. Liswell, 12 Mass., 52; Donaldson v. Means, 4 Dall., 109; 
 Oglesby v. Steamboat, 10 La. An., 117; Salisbury v. Renick, 44 Mo., 554; 
 Cheshire v. Taylor, 29 la., 492; Viele v. Germania Ins. Co., 26 id., 9; 
 Hughes V. Bowen, 15 id., 446; Mathews v. Allen, 16 Gray, 594; Smith 
 V. Curlee, 59 lU., 221 ; Pate r. McClure, 4 Rand., 164; Debuys v. MoIIere, 
 3 Mart. (N. S.), 318; Woodson v. Eastman, 10 N. H., 359; Cram r. Sher- 
 burne, 14 Me., 48; Leonard v. Gary, 10 Wend., 504; Hazard v. White, 
 20 Ark., 155; Thornton v. Wynn, 12 Wheat., 183; Stix v. Mathews, 63 
 Mo., 371 ; Chaffee v. M. C. & N. W. R. R. Co., 64 Mo., 193.
 
 512 NOTICE OF DISHONOR OF COMMEECIAL PAPEK. 
 
 tion.' There is still a third class where there seems to bo 
 an attempt to hold the promisor upon both gromids, or upon 
 either in the alternative.^ 
 
 § 957. Condition of Waiver by Subsequent Promise. — 
 Where the effect given to the subsequent promise is that it 
 shall be regarded as a waiver of the omission, or neglect to 
 give notice of dishonor, it is subject to certain conditions 
 which cannot be dispensed with in any instance. The prom- 
 ise must be absolute, unconditional, and made with a full 
 knowledge of the laches of the holder or other subsequent 
 party in neglecting to make demand or give due notice of 
 non-paj'ment, as well as a knowledge of any ot'her circum- 
 stances by which the indorser's rights may be affected." 
 
 § 958. Subsequent Promise Without Knowledge.— 
 Where the indorser was in possession of full knowledge of 
 the dishonor, and also was aware that the time within which 
 notice should have been given had expired, but was igno- 
 rant, at the time of the subsequent promise, that a prior 
 party had been permitted to erase his indorsement, the sub- 
 sequent promise was held not binding upon him.* 
 
 § 959. Promise, Express and Implied. — The doctrine 
 as laid down b}^ Lord Mansfield in Barradaile v. Lowe ^ is 
 that an indorser, after having been discharged, cannot be 
 rendered liable on the bill except by an express promise 
 with knowledge of the fact. This interpretation of the rule 
 
 'Lawrence v. Ralston, 3 Bibbj 102; Donelly v. Howie, Hayes & J., 
 436; Huntington r. Harvey, 4 Conn., 124; Gibbon %\ Coggon, 2 Camp., 
 188. 
 
 2 Union Bank v. Grimshaw, 15 La., 321 ; Tebbetts v. Dowd, 23 Wend., 
 379; Breed v. HOUiouse, 7 Conn., 523. 
 
 3 Ford V. Dallom, 3 Cold., 67; Blum v. Bidwell, 20 La. An., 43; Van 
 Wickle V. Downing, 19 id., 83; Baskeville v. Harris, 41 Miss., 535; Bank 
 of U. S. V. Leathers, 10 B. Mon.,64; Kelley v. Brown, 5 Gray, 108; Gaw- 
 try V. Doane, 48 Barb., 148; Arnold v. Dresser, 8 AUen, 435; Walker v. 
 Rogers, 40 111., 278; U. S. Bank v. Southard, 17 N. J. Law, 473; Hunter 
 V. Hook, M Barb., 468; Martin v. Winslow, 2 Mason, 241; Spurlock v. 
 Union Bank, 4 Humph., 336. 
 
 *Low V. Howard, 10 Cush., 159. 
 
 54 Taunt., 93.
 
 WAIVEK AND EXCUSE. 513 
 
 was applied to the case decided where it was sought to bind 
 the indorser, who was incontestabl}' discharged bj the neg- 
 lect of the holder to give notice of dishonor, but who had, 
 after such neglect came to his knowledge, written to the 
 holder to send the bill to a prior indorser. There is per- 
 haps no case where the giving of such gratuitous advice 
 has been construed into a promise to pa}^; but there seems 
 to be no sohd reason why contracts of this kind should be 
 restricted to such as are express in their terms. Later au- 
 thorities have, without abandoning in any degree the doc- 
 trine that the promise should be unconditional, decided that 
 the indorser could be held by an implied as well as an 
 express promise. 
 
 § 960. Implied Promise. — For example, where, subse- 
 quent to the dishonor, and in the absence of notice, the 
 indorser, with knowledge of the laches, makes a payment on 
 the bill or note, this has been construed as an implied prom- 
 ise to pay the balance.^ 
 
 §961. Promise to "^See it Paid."— So where the in- 
 dorser, on being infornied, more than four weeks after the 
 note became due, that it had not been paid, made no objec- 
 tion that he had not been seasonably notified of the dis- 
 honor, but said that he would see it paid ; although this 
 could hardly, in strictness, be called an express promise to 
 pay, it was regarded as sufficient to bind the indorser to the 
 fulfillment of the terms of liis indorsement, as though he 
 had received due notice.- 
 
 § 962. Recitals in Contract Acknowledging Bill. — So, 
 also, the recitals in a contract between the drawer and prior 
 indorser of a bill, to the effect that the bill was overdue, and 
 ought to be in the hands of the prior indorser, and that 
 the latter should take the money due him on the bill 
 by instalments, was admitted in evidence, in an action by 
 
 iKnappr. Eunals, 37 Wis., 135; Swan v. Hodges, 3 Head, 251; Teb- 
 betts V. Dowd, 23 Wend., 379. 
 2Ladd V. Kenney, 2 N. H., 340. 
 83
 
 514 ^•OTICE OF DISHONOE OF COMMERCIAL TAPEK. 
 
 a subsequent indorser against the drawer, to prove a waiver 
 of notice.^ 
 
 § 963. Subsequent Waiver Must be Unequivocal. — Il^Tev- 
 ertheless, it is generally held that to constitute an undertak- 
 ing to pay the bill, which is implied from the conduct of the 
 indorser or dra^ver after dishonor, there must be a more 
 unequivocal recognition of liability than would amount to a 
 waiver if made prior to maturity. As, in cases where the 
 doctrine is fully recognized that the acceptance of an assign- 
 ment of the maker's entire estate would amount to a waiver 
 if made prior to the maturity of the note, it is held that 
 such an assignment would not have the same effect when 
 made subsequent to dishonor, although aided by the admis- 
 sion of the indorser that he was " fully indemnified for all 
 his liabilities " for the maker. The admission was held to 
 refer to his legal liabilities.^ 
 
 § 064. Admissions to Strangers Do Not Amount to 
 Waiver. — The language used by the party, or his conduct 
 with respect to the dishonored bill, does not always operate 
 as an admission of continued liability. Should there be an 
 express admission with knowledge of the failure to give 
 due notice, it would only be held binding by giving it the 
 construction of an implied promise to pay. If it were 
 allowed to take effect as a mere admission of liability, it 
 would be immaterial to whom the admission was made ; 
 while it is held that a subsequent statement by the indoi'ser, 
 to a stranger to the bill, that the fact of notice not having 
 been given at a proper time would make no difference with 
 him, did not amount to a waiver of notice.^ But where the 
 acknowledgment comes in the form of a promise, it will be 
 as effective when made to the agent of the holder as though 
 it were to the holder himself.^ 
 
 iGunson v. Metz, 1 Barn. & Cres., 193. 
 
 2 Walters v. Munroe, 17 Md., 154; Prentiss xi. Danielson, 5 Conn., 175. 
 
 soiendorf v. Swartz, 5 Cal., 480. 
 
 ■•Sigerson v. Mathews, 20 How., 496.
 
 WAIVER AXD EXCUSE. 515 
 
 § 965. Anxiety to Have the Bill Paid, Mi Waiver.— 
 
 The mere manifestation of anxiety, by the party discharged 
 for want of notice, to have the note or bill paid by the party 
 iiltimatel}^ liable, howsoever such anxiety may be mani- 
 fested, provided it stops short of an unconditional promise, 
 express or implied, to pay and discharge the indebtedness 
 himself, will not amount to a waiver of notice.^ 
 
 § 966. Where Subsequent Promise Evidence of No- 
 tice. — Those cases holding strictly to the doctrine that the 
 subsequent promise is to be taken as presumptive evidence 
 of due demand and notice are forced to abandon entirely 
 the hypothesis that there has been a failure of either of 
 these requisite formalities. It would be extremely illogical 
 to admit an element to a proposition which was in direct 
 contradiction of the hypothesis. If there has been a failure 
 on the part of the holder to notify prior parties, it would 
 be absurd to say that an};- subsequent act, with knowledge 
 of such failure, vras, prima facie evidence that there was no 
 such failure. These authorities declare that where the 
 presumption of notice, arising from the subsequent promise, 
 is overcome by countervailing evidence, the promise ceases 
 to have any binding effect upon the promisor, for the reason 
 that it is without consideration and void.^ 
 
 §967. Subsequent Promise a Waiver. — The mere ac- 
 knowledgment of indebtedness has also been taken as evi- 
 dence of due notice ; but it was probably so held upon the 
 ground that such acknowledgment was equivalent to a 
 promise to pa}^ what was admitted to be due.'' In Chap- 
 man V. Annett,^ however, it was expressly decided, where 
 the drawer of a bill defended against a subsequent party, 
 upon the ground that he had not received due notice of the 
 
 1 Hussey v. Freeman, 10 Mass., 84. 
 
 - Lawrence v. Ralston, 3 Bibb, 102 ; Donolly v. Howie, Hayes & J., 436 ; 
 Huntington v. Harvey, 4 Conn., 124. 
 
 3 Jones V. O'Brien, 26 E. L. & Eq., 283; Rogers v, Hackett, 21 N. H., 
 100. 
 
 nCarr. & Kir., 552.
 
 516 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 dishonor of the bill, that a promise by such drawer, after 
 the dishonor of the bill, to pay the same, did not amount to 
 an admission of notice, but might waive it. 
 
 §968. Eyen Written Admission Not Conclusive. — It 
 has also been held that even a written admission by the 
 indorser, of due notice, or of liabihty on his indorsement, 
 after dishonor, is not conclusive upon the party making it.' 
 
 § 969. Subsequent Promise Either Waiver or Admis- 
 sion. — In Tebbetts v. Dowd,- Judge Cowen, in pronouncing 
 the opinion of the court, lays down the doctrine that a 
 subsequent promise, made with knowledge of laches of the 
 holder in neglecting to give notice, would amount to a 
 waiver of such notice. In this case, the judgment of the 
 court below is also sustained, on the ground that, no laches 
 appearing in the proof, the promise or other equivalent act 
 of the drawer or indorser should be received 2js, ^rima facie 
 evidence of due notice. In so deciding this case, the earlier 
 case of Trimble v. Thorn,^ where a different doctrine was 
 announced, was expressly overruled. 
 
 § 970. Onus Probamli. — This brings us to the consid- 
 eration of the question of the onus probandi^ when the con- 
 troversy is between two parties to a note or biU, the prior 
 of whom has not been duly notified of the dishonor of the 
 instrument, and the subsequent party seeks to hold him 
 upon his promise made after dishonor. Primarily, as to 
 the question of notice, the burden of proof rests upon the 
 party who seeks to charge the other. But when there has 
 been a promise to pay, or other act of the prior party by 
 which it is claimed that notice is waived after dishonor, the 
 authorities are by no means agreed as to whether the subse- 
 quent party shall be required to prove that the promise was 
 made with knowledge of the laches, or the burden shall rest 
 upon the party claiming to be discharged by the failure, of 
 
 1 Commercial Bank v. Qark, 28 Vt., 335; Stix v. Mathews, 63 Mo., 371. 
 
 2 23 Wend., 879. See, also. Breed v. HiUhouse, 7 Conn., 533. 
 316 Johns., 153.
 
 "WAIVER AND EXCUSE. 517 
 
 proving, not only the neglect or omission, but his own 
 ignorance of such fact at the time of the promise. 
 
 § 971. Subsequent Promise Prima Facie Evidence of 
 Diligence. — In Tebbetts v. Dowd,' the onus seems, by the 
 subsequent promise, to be shifted from the holder to the in- 
 dorser. If the promise to pay is j^ri'mayacz^ evidence of 
 due diligence on the part of the holder, it relieves the latter 
 of proving in the first instance a fact upon which the liabil- 
 ity of the indorser is clearly dependent. 
 
 §972. Evidence of Knowledge of Laches. — In Loose 
 V. Loose,^ it was decided that a subsequent promise to pay 
 would raise a presumption that the drawer or indorser by 
 whom the promise was made was cognizant of the laches of 
 the holder, which his promise was alleged to have waived. 
 The judge who rendered the opinion in this case cites with 
 approval the case of Tebbetts v. Dowd, where, as we have 
 already seen, the promise was regarded as lyrima facie evi- 
 dence that there had been due notice of the dishonor. It 
 is difficult to understand how the same fact may raise a pre- 
 sumption of two antecedent facts so utterly inconsistent 
 with each other, as that notice was duly given by the holder, 
 and that the indorser had full knowledge that the holder 
 had failed to give due notice. 
 
 § 973. Onus Cast Upon the Holder.— On the other 
 hand, it has been decided that in all instances the holder 
 assumes the burden of proving notice, or such promise or 
 other conduct of the indorser as would amount to a waiver 
 of notice.'' 
 
 § 974. Principles Governing the Question.— There may 
 be cases in Avhich it would be more equitable to require the 
 proof of neghgence to be made by the indorser who has 
 
 123 Wend., 379. 
 
 2 36 Pa. St., 538. See, also, Chitty on B., 500; 3 Kent's Com., 113; 
 Nash V. Harrmgton, 1 Aik., 49; Dorsey v. Watson, 14 Mo., 59^ Walker 
 V. Laverty, 6 Munf., 487. 
 
 3 Walker v. Rogers, 40 HI., 278; United States Bank v. Soutliard, 17 
 N. J. Law, 473.
 
 518 KOTICE OF DISIIOXOK OF COMMERCIAL PAPER. 
 
 promised to pay the note after its dishonor. There may bo 
 others where the promise fairly raises a presumption that 
 there has been no negligence on the part of the promisee. 
 But when we consider the importance of uniformity in the 
 rules governing transactions in commercial paper, and that 
 the notice by a holder to ^ an indorser has come to be con- 
 sidered as one of the most important steps in fixing the lia- 
 bility of indorsers, the exceptional character of the rules as 
 to waiver of notice, and that the waiver is only by implica- 
 tion, it seems to be adding unnecessarily to the confusion 
 by which the cardinal principles of this important branch 
 of the law have become obscured, to introduce an exception 
 to the ordinary rules of evidence by which such cases have 
 been governed, in order to give to words spoken with such 
 a questionable intent, a scope so far beyond their necessary 
 meaning. In looking at the question free from the bias of 
 a particular case, it would seem that the promise to pay, 
 subsequent to the dishonor of the note, would be evidence 
 of a strong character that the indorser helieved that notice 
 had been previously given, while the tendency of such 
 promise to establish the correctness of that belief would be 
 in some cases so slight as to be scarcely appreciable. The 
 sufficiency of the notice in point of time, when governed, 
 as we have seen in a former part of this chapter,^ by the 
 date of sending, and not by the date of its receipt, is a 
 matter the knowledge of which is peculiarly with the holder, 
 and not with the indorser. To consider the promise as evi- 
 dence of a belief in the dihgence of the subsequent party in 
 giving notice, and to deny to it the effect of raising a pre- 
 sumption that the holder had in fact given due notice, is to 
 regard such promise as but a hnk in the chain of evidence 
 by which the waiver is to be established, and not as a fact of 
 such importance as to shift the onus probandi with respect 
 to the question of notice from the shoulders of the holder 
 to those of the antecedent party. If the holder fails to 
 
 lAnfe, §§793, 821.
 
 WAIVER AND EXCUSE. 510 
 
 prove due notice of dishonor, and merely proves a sub- 
 sequent promise, without other evidence of knowledge than 
 could be inferred from the indorser's manifest belief that no- 
 tice was given, it would seem that instead of having the 
 effect of charging the indorser, it points to his discharge for 
 want of notice, and would show that the subsequent promise 
 was made in ignorance of that fact. 
 
 § 975. Knowledge of Facts and Not Their Legal Effect. 
 The knowledge of dishonor and of the failure by the sub- 
 sequent party to give the requisite notice, wlien brought 
 home to the antecedent party who has promised to pay the 
 dishonored paper, is only requbed to be of the facts in- 
 volved in the matter, and not of their legal effect.^ And 
 the knowledge of facts may be inferred from circumstances.' 
 
 § 976. Excuses of a General Nature Enumerated. — 
 And next, as to what will constitute a sufficient excuse for 
 the omission of due notice of dishonor. Judge Story enu- 
 merates the excuses of a general nature for failure to give 
 notice of dishonor of promissory notes as follows: "1. The 
 cases where notice is prevented by inevitable accident, or 
 overwhelming calamity. 2. The prevalence of a mahgnant 
 disease, which interrupts and suspends the ordinary opera- 
 tions of trade and business, 3. Occurrences of a public 
 and pohtical character, which interrupt or stop the couree 
 of the trade and business, such as war, blockade of the 
 place, invasion or occupation by the enemy. 4. The public 
 interdiction or prohibition of commerce between the coun- 
 tries from which or to which the notice is to be sent. 
 5. The utter impracticabihty of giving notice by reason of 
 the party entitled thereto having absconded, or having no 
 
 iLadd V. Kenney, 2 N. H., 340; Duryee v. Dennison, 5 Johns., 248; 
 Donaldson v. Means, 4 Dall., 109; Miller v. Hackley, 5 Johns., 375; Grif- 
 fin V. Goff, 12 Johns., 423; Stevens v. Lynch, 12 East, 38; Porter v. 
 Rayworth, 13 East, 417; Lundie v. Robertson, 7 East, 231; Bilbie r. 
 Lumley, 2 East, 469; Hopley v. Dufresne, 15 East, 275, Contra, Warder 
 V. Tucker, 7 Mass., 449. 
 
 -Givens v. Merchants' National Bank, 85 111., 442. See Metz v. Osborn, 
 5 Mo., 546; Dorsey v. Watson, 14 Mo., 62.
 
 520 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 fixed place of residence, or his place of residence or busi- 
 ness being unknown, and incapable of being ascertained 
 upon reasonable inquiries." ^ 
 
 § 977. Excuses of a Special Character. — Excuses of a 
 special and peculiar nature are enumerated as follows: 
 " 1. That the note was given for the accommodation of the 
 indorser only, and that he has the sole interest in the pay- 
 ment, and must ultimately pay the same. 2. An original 
 agreement on the part of the indorser, made with the maker 
 or other party, at all events to pay the note at its maturity 
 to the holder. 3. The receiving of a security or indemnity 
 from the maker or other party for whose benefit the note is 
 made, by the indorser, to secure him for his liability thereon. 
 If the security be to the full amount of the note, the in- 
 dorser will be held liable, without notice, for the full pay- 
 ment of the note. If the security be partial, he will be 
 bound 'j)ro tanto. 4. A fortiori^ the receiving money from 
 the maker or other party for whose benefit the note was 
 made, to take up and pay the note. 5. Receiving the note 
 as collateral security for another debt where the debtor is 
 no party to the note, or, if a party, has not indorsed it. 
 6. An original agreement by the indorser to dispense with 
 the necessity of notice, or to be bound without notice. As 
 if the indorser, before the note becomes due, agrees to pay 
 it in consideration of time being given to him, such a prom- 
 ise is a dispensation with the necessity of presentment for 
 payment and of notice of the dishonor. 7. An order or 
 direction from the indorser to the maker not to pay the 
 note if it be presented at its maturity, for this plainly will 
 dispense with notice of the dishonor, since it is procured by 
 the indorser's own act, although it will not dispense with 
 the presentment of the note for payment." ^ Many of the 
 matters enumerated above as excuses of a special nature 
 have been considered as amounting to waiver of notice.^ 
 
 1 Story on Prom. Notes, §§ 258, 259, 356; Story on B., §§ 308, 309. 
 
 2 Story on Prom. Notes, §§ 293, 357 ; Chitty on BiUs, 500 (9th Lond. Ed.)- 
 
 3 Supra, § 933, et seq.
 
 WAIVER AND EXCUSE. 521 
 
 § 978. Inevitable Accident.— Inevitable accident will 
 excuse notice vrhen the happening of the event is be3'ond 
 the control of the jDarty charged with the duty of giving 
 notice, although the accident may have resulted from the 
 negligence of a stranger. As where, throngii a mistake of 
 the postmaster, the bill failed to reach the agent authorized 
 to present it for payment, until the day following the date 
 of its maturity, it was held that notice given as soon as pos- 
 sible after presentment would be sufficient.^ 
 
 § 979. Prevalence of Malignant Fever. — The prevalence 
 of a malignant fever in New York, that being the place of 
 payment, by which the transaction of business was inter- 
 rupted, was held to be sufficient to excuse delay in giving 
 notice, which was due in September, until the following 
 j^ovember.2 
 
 § 980. Existence of War. — The existence of war is ac- 
 cepted as an excuse for failure to present for acceptance or 
 demand payment and give notice of dishonor, where war 
 has been formally declared between the belligerent nations, 
 before the inception of the bill or note, for the reason that 
 all contracts between the subjects of nations at war with 
 each other are void.^ 
 
 § 981. Interdiction of Commerce. — So, when the instru- 
 ment matures after the commencement of hostilities and 
 the interdiction of commerce between the two countries, 
 though it may have been made or drawn prior to the com- 
 mencement of the war, the want of demand and notice 
 would be excused.^ 
 
 §982. Actual Hostilities.— The prevalence of actual 
 hostilities, however, not only has the effect to excuse the 
 giving of notice, because of the illegality of such business 
 
 1 Windham Bank v. Norton, 22 Conn., 213. 
 
 -Tunno v. Lague, 2 Johns. Cos., 1. 
 
 3 United States v. Grossmayer, 9 Wall., 72; Harden v. Boyce, 59 Barb., 
 425; Willison v. Pattison, 7 Taunt., 439; Potts v. Bell, 8 T. R., 548. 
 
 < Leathers v. Commercial Ins. Co., 2 Busli, 296; Hopkirk v. Page, 2 
 Brock., 20; Griswold v. Waddington, 15 Jolms., 57; Scofield v. Eichel- 
 berger, 7 Pet., 586; Story on Prom. Notes, ^ 263.
 
 522* NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 intercourse between* the subjects of the belligerents, but be- 
 ca^use of the obstruction to the means of communication, 
 Avliich renders either the presentment or the giving of notice 
 practically impossible, dangerous or extremely inconven- 
 ient.^ 
 
 § 983. Late War. — This doctrine has been frequently ap- 
 plied to cases arising during the late civil war in this country, 
 and it was decided, in several instances, that during the 
 continuance of such war, and especially after the issuance 
 of the president's interdict, all commercial intercourse be- 
 tween the people of the states remaining loyal to the 
 national government and those in insurrection was sus- 
 pended, and omissions to give due and regular notice of the 
 dishonor of commercial paper between them was held ex- 
 cused, either on account of the difficulties of intercom- 
 munication or the prohibitory order of the president, or by 
 reason of both such facts.- 
 
 § 984. Interrui)tioii of Postal Commumcatioii. — When 
 notice is given by sending a written communication through 
 the postoffice, addressed to the party to be notified, at his 
 residence, within the other belligerent's territory, or at a 
 point between which and the place of dishonor there is no 
 postal communication, which has been suspended by reason 
 of the disturbed condition of the country, such notice will 
 not operate to charge the party so notified, b}^ converting 
 his conditional liability into an absolute one.* 
 
 §985. War Where Note Payable. — ^The existence of 
 war in the country where the bill or note is to be presented 
 for pa3"ment or acceptance, although all the parties be resi- 
 dents of such country, will excuse the failure to give notice, 
 
 lApperson v. Bynum, 5 Coldw., 341; Patience v. Townley, 2 J. P. 
 Smith, 223; Story on Prom. Notes, § 261. 
 
 -' House r, Adams, 48 Pa. St., 261; Woods v. "Wilder, 43 N. Y., 164; 
 Berry v. Soutliern Bank of Ky., 2 Dev., 379; Bell v. Hall, id., 288; Bell- 
 gerry v. Branch, 19 Gratt., 393; Hayden v. Boyce, 59 Barb., 425; Polk 
 V. Spinks, 5 Coldw., 431. 
 
 3 James v. Wade, 21 La. An., 548; Burden v. Smith, 44 ]\Iiss., 548; 
 Shaw V. Neal, 19 La., 156.
 
 WAIVEE AND EXCUSE. 523 
 
 when, by reason of the existence of such war, tnere is a 
 mihtary occupation of the country which obstructs inter- 
 course between the parties to the note or bill.^ 
 
 § 986. Not Excused if Intercourse Legal. — It has been 
 held that unless it was apparent that, at the time of the 
 protest, there w^as such obstruction to communication that 
 the notice could not have been sent, if prior to the presi- 
 dent's interdict, the intercourse was not illegal, and notice 
 was not excused.^ 
 
 § 987. Loss of Note toy War, No Excuse.— Nor wnll the 
 mere fact that, as one of the casualties of war, the note has 
 been lost or removed beyond the reach of the legal holder, 
 be suflBcient to excuse notice. The loss or absence of the 
 note, when occasioned by war, will f m'nish no better excuse 
 for a failure to present and give notice of dishonor than any 
 similar casualty which is the effect of any other cause. So, 
 where the notes, being held by a bank in Memphis, were, by 
 the order of the commander of the Confederate forces, re- 
 moved south about the 20th day of May, 18G2, and remained 
 south until the close of the w^ar in 1865, it was held that 
 the protest w^hich took place July IT, 1865, and notice thereof 
 given to an indorser, w^ho, together with the officers of the 
 bank, had resided in the city of Memphis throughout the 
 war, would not be effectual to fix the liabihty of such in- 
 dorser, who was discharged by the laches of the bank offi- 
 cers.^ 
 
 § 988. Entitled to Notice When Obstruction Removed. 
 Where notice, which otherwise should be sent by mail, is 
 interrupted by a state of war between the countries in 
 which the prior and subsequent parties are respectively resi- 
 dent, or in either of such countries, it is not to be under- 
 stood that notice is thereby finally dispensed with. Upon a 
 cessation of the Avar, or the removal of other similar obsta- 
 
 1 Peters v. Hobbs, 25 Ark., 67; Dunbar v. Tyler, 44 Miss., 1; Farmei-s' 
 Bank of Va. v. Gunnel, 26 Gratt., 131 ; Tardy v. Boyd, id., 631. 
 
 2 National Bank v. Marr, 6 Bush (Ky.), 614. 
 
 3 Apperson v. Union Bank, 4 Coldw., 445.
 
 524 NOTICE OF DISHONOE OF COMMERCIAL PAPER. 
 
 cles to the regular communication by mail, the prior party 
 becomes entitled to notice, and it should be sent as soon as 
 practicable.' 
 
 § 981). Party Not Required to Yiolate Law of His Domi- 
 cile. — Excuse founded upon the public interdiction and 
 prohibition of commercial intercourse has been sufficiently 
 illustrated by examples from the authorities cited with re- 
 spect to war between the countries in which the different 
 parties reside. War furnishes the most familiar, if not the 
 only, instance where commerce between different countries 
 is interdicted. But one of the reasons for the excuse would 
 be the same where intercourse was prohibited in time of 
 peace, as no subject or resident of any country can be com- 
 pellable to do an act which violates the law of his domicile, 
 in order to protect rights which he is not otherwise at hb- 
 erty to enforce.^ 
 
 § 990. Due Diligence. — All that is required of the holder, 
 in giving notice to prior parties of the dishonor of a bill or 
 note, is the exercise of diligence in making inquiry for the 
 residence or place of business of the party to be notified, 
 and if, after proper inquiries, such place cannot be ascer- 
 tained, or if the indorser has absconded, or concealed him- 
 self, or has no regular place of residence or business, notice 
 will not be required, at least not within the usual time.' 
 
 § 991. Notice of Facts Excusing Demand. — But the 
 absconding, absence or insolvency of the maker of a note, 
 or the acceptor or drawer of a bill, even when they excuse 
 presentment or demand, will not excuse notice, notwith- 
 standing such circumstance is known to the indorser or 
 
 A Morgan v. Bank of Louisville, 4 Bush, 83. 
 
 2 Story on Prom. Notes, § 263. 
 
 » Brighton Market Bank v. Philbrick, 40 N. H., 506 ; Browning v. Kin- 
 near, Gow. , 81 ; Baldwin v. Richardson, 1 Barn. & Cres. , 245 ; Fii-th v. 
 Thrush, 8 id., 387; Peet v. Zanders, 6 La. An., 364; Bateman v. Joseph, 
 2 Camp., 461; Garver v. Downies, 33 Cal., 176; Lambert v. Ghiselin, 9 
 How., 552; Chapman v. Lipscombe, 1 Johns., 294; Hunt v. Maybee, 7 
 N. Y., 266.
 
 WAIVER AND EXCUSE. 525 
 
 other prior party to be aflfectecl by the notice.' The indorser 
 or drawer is as clearly entitled to notice of facts which ex- 
 cuse presentment for acceptance or demand of payment as 
 he is to notice of dishonor.^ 
 
 § 992. Obstructions Removed — Demand and Notice. — 
 ISTevertheless, where the facts are sufficient to excuse delay 
 in presenting the bill, the notice may, in some instances at 
 least, be effectually given after the obstruction is removed 
 and the presentment or demand is made ; as where the sick- 
 ness or death of the holder intervenes to prevent the de- 
 mand being made at maturity. It was accordingly held 
 that the sickness of the holder of a bill payable three days 
 after sight would be excused for failing to present the bill 
 Avithin such time as would otherwise be deemed reasonable.'' 
 
 § 993. Death of Holder.— Where the holder died before 
 the maturity of the note, and his executor proved the will 
 within a month after the maturity of the note, but immedi- 
 ately thereafter relinquished his trust as executor without 
 having qualified as such, and his successor in the adminis- 
 tration found the note among the papers of deceased a week 
 after he received them, presented it next day, and notified 
 the indorser the day after of the dishonor, it was held that 
 the notice of dishonor was given within a reasonable time.* 
 
 § 994. Sudden Sickness and Death of Agent.— The sud- 
 .den sickness and death of an agent of the holder, who had 
 the note in his possession, has also been accepted as an ex- 
 cuse for delay.^ In this case the holder was not aware of 
 
 iFarnum v. Towle, 12 Mass., 92; Denny v. Palmer, 5 Iredell, 610; May 
 V. Coffin, 4 Mass., 3-41; Nash v. Harrington, 2 Aikens, 9; Russell r. 
 Langstaflfe, Dougl., 495; Smith v. Beckett, 13 East, 187; Esdaile v. Sow- 
 erby, 11 id., 114; Pons v. Kelley, 2 Hayw., 45; Warrington v. Furbor, 
 8 East, 242; Nicholson v. Goutliit, 2 H. Bl., 609; Rhode v. Proctor, 4 B. 
 & C, 517; Thackery v. Blackett, 3 Camp., 164; Lafitte v. Slatter, 6 
 Bing., 623. 
 
 2 Price V. Young, 1 M'Cord, 339; Taylor v. Snyder, 3 Den., 145. 
 
 * Aymar v. Beers, 7 Cow., 705. 
 
 4 White V. Stoddai-d, 11 Gray, 258. 
 
 5 Duggan V. King, Rice, 1339.
 
 526 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 the notes being in the possession of his agent at the time of 
 his decease, and, as soon as it was discovered, demand was 
 made and notice of dishonor given. Under these circum- 
 stances, a notice Avhich otherwise shoukl have been given 
 on the 15th day of May was held to be in due time when 
 given on the 8th of the following June. 
 
 § 9t)5. Sickness Must he Sudden and Severe. — Sickness, 
 however, will only be sufficient excuse for negligence in 
 making demand and giving notice of non-pa3'ment, when it 
 appears to have been so sudden and severe as to prevent 
 the holder, or agent who has possession of the instrument, 
 from presenting the same, or employing another to do so in 
 his stead. ^ 
 
 § 996. Special Excuses Treated as Waiver. — The clas- 
 sification and enumeration of excuses of a special nature as 
 laid down by Judge Story- cannot be followed here without 
 a great deal of useless repetition, for the reason that most 
 of the matters there given by the learned author as excusing 
 notice, we have already presented as matters of waiver.^ 
 
 § 997. Bill Drawn for Benefit of Drawer. — Koticemay 
 be excused by the fact that the bill or note was drawn or 
 made for the benefit of the drawer, maker, or indorser, who 
 would otherwise be entitled to notice. It was accordingly 
 held that where the bill was drawn and accepted for the 
 benefit of the drawer, there was no necessity of giving him 
 notice of its dishonor, as the duty was incumbent upon him 
 to take care of the bill.^ 
 
 § 998. Note for Accommodation of Payee. — Even 
 where the maker of the note was really indebted to the 
 payee, but the note was made for the accommodation of 
 the payee, who indorsed it, and promised the indorsee that 
 
 1 Wilson V. Senier, 14 Wis., 380. 
 
 '^ Supra, § 977. 
 
 ^Stipra, §§ 933, 934 et seq. 
 
 * N. O. Sav. Bank v. Hari^er, 12 Eob. (La.), 231 : Ross v. Bedell, 5 
 Duer, 462 ; Barbaroux v. Waters, 3 Mete. (Ky.), 304 ; Sharp v. Bailey, 9 
 Barn. & Cres., 44; Ex parte Heath, 2 Ves. & B., 240.
 
 WAIVER AXD EXCUSE. 527 
 
 he would take care of it, he was not entitled to notice of dis- 
 honor.^ 
 § 999. For Accommodation of Drawee or Acceptor.— 
 
 But where the bill is drawn for the accommodation of the 
 drawee or acceptor, the rule is quite different. Being drawn 
 for the benefit of the party to whom the holder is directed 
 for payment in the first instance, in case of failure on his 
 part to meet the obligation when presented, for whatever 
 reason that does not involve the interference of the prior 
 party, such prior party is entitled to notice.^ 
 
 § 1000. Not Excused l)y Promise of Drawer to Provide 
 for Bill. — The English courts seem ver}^ jealous of en- 
 croachments upon the general rule requiring notice to prior 
 parties of the dishonor of commercial paper. Lord Kexyon, 
 in Staples v. Okines,' where the drawee was in debt to the 
 drawer above the amount of the bill, but had informed the 
 drawer that he could not meet the bill, and it was under- 
 stood between them that the drawer should provide for it 
 in case it was not paid, it was held that • the drawer Avas 
 nevertheless entitled to notice.'' 
 
 § 1.001. ^0 Fimds ill the Hands of Drawee. — It is fre- 
 quently urged as an excuse for the want of notice of dis- 
 honor of bills of exchange, that when the draft is drawn 
 the drawee has no funds in his hands which belong to the 
 drawer, and as a consequence the drawer cannot be injured 
 b}^ the omission. The earliest reported case in which this 
 rule is laid down, and which seems to be followed as an 
 authority, is that of Bickerdike v. Bollman.'^ In rendering 
 the opinion Judge Buller says: "The law requires notice 
 to be given for this reason, because it is presumed that the 
 
 1 Torrey v. Foss, 40 Me., 74. 
 
 '-' Ex parte Heath, 2 Ves. & B., 240; Bank of Seaford v. Connoway, 4 
 Houst., 206. 
 
 3 1 Esp., 332. 
 
 ^ This, however, has been held differently in a recent American case, 
 which seems to be supported by the better reason. Harrison v. Trader, 
 29 Ark., 85. 
 
 5 IT. R., 405, 409.
 
 528 NOTICE OF DISHONOR OF COMMERCIAL PAPER. 
 
 bill is drawn on account of the drawee's having effects of 
 the drawer in his hands ; and if the latter has notice that 
 the bill is not accepted, or not paid, he may withdraw them 
 immediately. But if he has no effects in the other's hands, 
 then he cannot be injured for the want of notice." ^ 
 
 § 1002. Application of the Rule Coiiiiiied. — The above 
 decision may be regarded as the foundation of a rule which, 
 with the modifications found necessary in its application to 
 cases where the facts were different, has been accepted b}" 
 the courts, both American and English, as based upon a sal- 
 utary principle. Though there has never been a doubt ex- 
 pressed of the soundness of the decision in the case where 
 this doctrine is first distinctly and authoritatively announced, 
 some of the English judges, in giving in their adhesion to 
 the precedent, apprehending a disturbance of the established 
 rules of the law merchant upon the subject of notice, have 
 expressed their regret at what they regarded as a dangerous 
 departure.- Viewing this as an exceptional case, when cited 
 as a precedent, the tendency has been to confine its apphca- 
 tion to cases clearly in point, and not to ex'tend it to cases 
 possessing the single characteristic in common with Bicker- 
 dike V. Bollman, that the drawee held no funds of the 
 drawer. In modifying the rule the courts have also found 
 it necessary to place it upon a foundation less broad than 
 the mere fact that the drawer would not be injured by the 
 neglect or omission of the holder to give notice of the dis- 
 honor, as it would open an almost endless field of inquiry, 
 if in every case the holder might go into an elaborate and 
 nice investigation of the question whether the failure to give 
 notice had been productive of actual damage to the party 
 entitled thereto under the established rule. 
 
 § 1003. American Cases Decided on Insufficient Rea- 
 son. — In some of the American authorities, however, the 
 absence of injury to the drawer is given as the only reason 
 
 1 See, also, Rogers v. Stephens, 2 T. R., 713; Gale v. Walsh, 5 id., 239; 
 Walwyn v. St. Quintin, 1 Bos. & Pul., 654; Dickens v. Beal, 10 Pet., 572. 
 
 2 See cases cited infra.
 
 WAIVEE AND EXCUSE. 520 
 
 of the exception to the general rule, and it is announced 
 that a failure to give notice will not discharge the drawer 
 without funds, even where the bill has been duly accepted, 
 and only dishonored when presented for payment.^ The 
 reasoning of most of these cases is hardly satisfactory, in 
 view of the necessity for fixed rules to be apphcd to partic- 
 ular cases, without enlarging the scope of inquiry into facts.' 
 
 § 1004. No Right to Expect Payment. — The prepon- 
 derance of authority, both British and American, is in favor 
 of treating the absence of funds not as sufficient in itself 
 to excuse notice to the drawer, upon the broad ground 
 that he is not injured by the omission, but as evidence of 
 the fact upon which the true reason of the exceptional doc- 
 trine is based- — that the drawer had no right to expect 
 "that the bill would be accepted and paid, and hence its cir- 
 culation by the drawer would be either a fraud upon sub- 
 sequent parties, or an indirect means of evidencing his own 
 indebtedness.- 
 
 § 1005. Drawer Against Goods in Transit. — So, where 
 the drawer has made or is making a consignment of goods 
 to the drawee, and draws before the consignment comes to 
 hand,^ if the goods are in transitu, but there is a failure to 
 send a bill of lading, or the goods are lost ; if the drawer 
 
 1 Hoffman v. Smith, 1 Cai., 160; Commercial Bank v. Hughes, 17 
 Wend., 94; Foard v. Womack, 2 Ala., 368; Shirley v. Fellows, 9 Port. 
 (Ala.), 300. 
 
 ^Rucker v. HUler, 16 East, 43; Norton v. Pickering, 8 B. & C, 610; 
 Cory u. Scott, 3 Barn. & Akl., 619; Walwyn v. St. Quiutin, 1 Bos. & 
 Pul., 654; Blackham v. Doren, 2 Camp., 503; Lord EUenborough in 
 Brown v. Maffey, 15 East, 216; Legge v. Thorpe, 13 id., 171 ; Lafitte v. 
 Slatter, 4 Moore & P., 457; Dickens v. Beal, 10 Pet., 572; French v. 
 Bank of Columbia, 4 Cranch, 141 ; Louisiana State Bank v. Buhler, 22 
 La. An., 83; Oliver v. Bank of Tennessee, 11 Humph., 74: Kinsley i*. 
 Robinson, 21 Pick., 827; Campbell v. Pettengill, 7 Me., 126; Hopku-k 
 V. Page. 2 Brock., 20; Miser v. Trovinger, 7 Ohio St., 281; McRae 
 V. Rhodes, 22 Ark., 315; Schuchardt v. Hall, 36 Md., 590; Farmers' 
 Bank v. Vanmeter, 4 Rand., 553. 
 
 3 Oliver v. Bank of Tennessee, 11 Humph., 74; Robins v. Gibson, 3 
 Camp., 334. 
 34
 
 530 NOTICE or DISnON'OR OF COMMERCIAL PAPER. 
 
 has any property for sale in the hands of the drawee ; if 
 there be a fluctuating balance between the drawer and the 
 drawee, in the course of their transactions ; if the drawee 
 has been in the habit of accepting the bills of the drawer, 
 without regard to the state of their accounts, or the drawer 
 has a reasonable expectation that the bill will be accepted 
 or paid, the transaction cannot be denominated a fraud, and 
 the drawer is entitled to notice.^ 
 
 § 1006. Opinion of Marshall. — In Ilopkirk v. Page,- 
 there was a balance in the drawee's hands, amounting to 
 IGs. lid., and the draft was for £246 3^. 7d., with no expec- 
 tation, which seemed to have any reasonable grounds, that 
 the bill would be paid; it was held, by Chief Justice Mar- 
 shall, that notice was unnecessary. " The sound sense and 
 justice of the exception," said the learned judge, " is that 
 where a drawer knows that he has no right to draw, and 
 has the strongest reason to believe his bill will not be paid, 
 the motives for requiring notice do not exist, and his case 
 comes within the reason of the exception. Where all trans- 
 actions between parties have ceased, and there is nothing 
 to justify a draft but a balance of one penny, it would be 
 sporting with our understanding to tell us tliat a creditor 
 for this balance, who should draAv for a thousand pounds, 
 would be in a situation substantially different from what he 
 would be in were he the debtor in the same sum." 
 
 §1007. Illnstration. — An example of a draft without 
 reasonable expectation of payment is where the drawer 
 was engaged in executing a contract, through an agent in a 
 distant city, and the drawee acted as his trustee to receive 
 the money to be paid on the contract, and pay it out on the 
 drawer's order. The drawee had written the other party, 
 urging the completion of the work, and advising him that 
 no further money would be paid until the work was all fin- 
 ished. The draft was drawn subsequent to this advice, and 
 it Avas held that notice was unnecessary.* 
 
 1 Dickens v. Beal, and other cases cited in note to § 1004. 
 
 - 2 Brock., 20. See, also, Blankenship v. Rogers, 10 Ind,, 333. 
 
 3 Wollenweber v. Ketterlinus, 17 Pa. St., 389.
 
 WAIVER AND EXCUSE. 531 
 
 § 1008. Mere Existence of Credit.— So the mere fact of 
 the existence of a credit in the drawer's favor will not always 
 furnish reasonable grounds for expecting that the biU will 
 be paid. As where the drawer had supplied the draw^ee 
 with goods on a credit, which did not expire until long after 
 the maturity of the bill, and had no funds in the hands of 
 the drawee, and no further reason to anticipate the payment 
 of the bill, it was held that he was not entitled to notice of 
 protest.^ 
 
 § 1009. Expectation of Payment Must Continue to Ma- 
 turity. — It is not sufficient to discharge a drawer who has 
 not received notice of dishonor, that at the time the bill 
 was drawTi he had sufficient funds to meet it in the hands 
 of the drawee, or had good reason to anticipate its payment. 
 The reasonable expectation of payment must continue down 
 to the maturity of the bill. So, where the drawer of a draft 
 or check withdraws his balance from the hands of the 
 drawee before the bill matm'es, or the check is presented, 
 he is not entitled to notice of non-payment, as a condition 
 precedent to his liability.- But if, at the maturity of the 
 bill, the holder have a reasonable expectation that it will be 
 paid, notice to him cannot be dispensed with,' although the 
 funds in the hands of the drawee may not be sufficient in 
 amount to pay the draft.^ 
 
 § 1010. Need Not be Anticipated from Drawee. — The 
 reasonableness of the expectation will not depend upon the 
 fact that pa}Tnent is anticipated as coming directly from 
 the drawee. If he has reason to believe that some one 
 else will have supphed the drawee with funds at the matu- 
 rity of the bill, and for a failure to make such pro\'ision the 
 
 1 Qariflge v. Dalton, 4 Maul. & Sel., 226. 
 
 - Pm-chase v. Mattison, 6 Duer, 587 ; Jacks v. Darrin, 3 E. D. Smith, 557 ; 
 Siitcliffe V. McDowell, 2 Nott & McC, 251; Lilley r. Miller, id., 257; 
 Eichelberger v. Finley, 7 Harr. & J., 381; Valk v. Simmons, 4 Mason, 
 113; Moody V. Mack, 43 Mo., 210; Momson v. McCartney, 30 Mo., 183; 
 Adams v. Darby, 28 Mo., 162 ; Linville v. Welch, 29 id., 203. 
 
 sLegge V. Thorpe, 12 East, 171. 
 
 * Orr V. McGinness, 7 East, 359.
 
 532 NOTICE OF DISHONOK OF COMMERCIAL PAPEK. 
 
 drawer -would have a right of action against the one so fail- 
 ing, notice to the drawer would be necessary.^ 
 
 §1011. Promise from Drawee. — Where the drawer 
 had received from the drawee a promise to meet the draft, 
 if he did nothing thereafter to prevent the funds coming to 
 the hands of the drawee, he might reasonably rest in the 
 belief that the bill would be paid at matui'ity, although he 
 knew that the funds in the hands of the drawee were not 
 sufiBcient to meet the draft.^ 
 
 § 1012. Where Drawee Has Already Honored Drafts. — 
 So, where an acceptance was given by a drawer upon a 
 drawee, who had already honored several di'afts from the 
 same source, although he held none of the drawer's funds, 
 the drawer would be entitled to notice, upon the ground of 
 reasonable expectation of payment, provided the former 
 bills had been honored without funds, and there had been 
 no understanding between the parties limiting the transac- 
 tions to the prior acceptances." 
 
 § 1013. Running Account Between Parties. — So, also, 
 has it been held that, where there is a running account 
 between the parties, any sum whatever standing to the 
 credit of the drawer will justify the expectation of payment, 
 so far as to entitle him to notice of dishonor.* 
 
 §1014. Suspecting Absence of Funds, No Excuse. — 
 Where the holder made inquiry of the drawee on the day 
 preceding the day of maturity, and ascertained that funds 
 had not been provided for the payment of the bill, but was 
 informed by the drawer that it was probable that a sufficient 
 amount would be supplied in time, and on the day of matu- 
 rity the drawer saw the holder and told him he would see 
 what could be done, it was held that he was entitled to due 
 notice, regardless of whether the funds were in the hands of 
 the drawee or not. And the holder, suspecting the continued 
 
 1 Brown v. Maffey, 15 East, 216; Lafitte v. Slatter, 6 Bing., 623. 
 
 2 0rear v. McDonald, 9 GUI, 350. 
 
 3 Spooner v. Gardiner, Ry. & Mood., 84. 
 *HiU V. Norris, 2 Stewart & P., 114
 
 WAIVEE AND EXCUSE. 533 
 
 absence of cash to meet the draft, and for that reason failing 
 to present the same and give notice of its dishonor, the drawer 
 was discharged by such omission.^ Had the decision of this 
 case turned upon the question whether the drawer was in- 
 jured by the neglect of the holder to make presentment and 
 give notice, it would doubtless have resulted differently. 
 
 § 1015. Drawer Being in Debt to Drawee, No Excuse. — 
 The circumstance that, according to the mutual accounts 
 between the drawer and the drawee, the former is in debt 
 to the latter, will not excuse notice of dishonor, where the 
 drawer, notwithstanding the fact that the fluctuating bal- 
 ance is against him, has cash in the hands of the drawer to 
 meet the specific draft.^ 
 
 § 1016. No Expectation of Funds at Place, No Ex- 
 cuse. — It is no excuse that the funds are not at the place of 
 pa3''ment designated in the bill, and where such fact was 
 pleaded in excuse, and that there was no reasonable expecta- 
 tion that the funds would be there, it was held insufficient, 
 as there should have been an averment of no reasonable 
 expectation of funds in the hands of the acceptor or drawee.' 
 
 § 1017. No Excuse for Failing to Notify ludorser. — 
 The consideration of want of funds, as an excuse for failure 
 to give notice of dishonor, is necessarily confined almost ex- 
 clusively to cases arising between subsequent parties to the 
 bill and the drawer. The mere fact that the bill was drawn 
 or a note made without funds to meet it, or without even a 
 shadow of reason to expect that it would be paid at matu- 
 rity, will not excuse a failure to give notice to an indorser, 
 by whom the bill has been transferred in good faith.* 
 
 iPrideaux v. Collier, 2 Stark., 57. 
 
 2 Blackhan v. Doren, 2 Camp. , 503. 
 
 3 Harwood v. Jarvis, 5 Sneed, o75. 
 
 ■4 Wilkes V. Jacks, Peake, 267; Ramdulollday v. Darieux, 4 Wash. 0. 
 C, 61 ; Ealston v. Bullitts, 3 Bibb, 261 ; Scai-borough v. Harris, 1 Bay, 
 177; Warder u. Tucker, 7 Mass., 449; Carter v. Flower, 16 M. & W., 
 743; Bogy v. Keil, 1 Mo., 743; Merchants' Bank v. Easley, 44 Mo., 286; 
 Walker v. Rogers, 40 111., 278; Leach v. Hewitt, 4 Taunt., 731.
 
 534 NOTICE OF DISHONOR OF COMMEECIAL PAPEE. 
 
 §1018, Accommodation ludorser. — And thoiigli tlie 
 payee simply indorses the note to give it currency, and with 
 full knowledge of the insolvency of the maker, he is never- 
 theless entitled to notice of non-payment at maturity.^ 
 
 § 101 9. Iiidorser with Notice of Facts Excusing. — But 
 an indorser of a bill of exchange, with notice of such facts 
 as Avould be sufficient to excuse the want of notice to the 
 drawer, whether it be that the bill was drawn without funds, 
 or other circumstance from which . the drawer would have 
 no right to anticipate payment, would be placed upon sub- 
 stantially the same footing as the drawer, and whatever 
 would suffice to excuse the omission to notify the latter, 
 would be a vahd excuse in case of an indorser with notice 
 of the facts.- 
 
 § 1020. Former Partnership Between Drawer and 
 Drawee, No Excuse. — The indorsee and holder of a bill 
 drawn by one upon a former partner, where the partnership 
 between them had been recently dissolved, is not excused 
 from giving notice of the dishonor of the bill, merely be- 
 cause he had not been notified of the dissolution. The 
 notice of dissolution is only necessary when the partner 
 professes to act for the partnership. In this case he pro- 
 fessed to act for himself in drawing a bill in his own name, 
 and the erroneous impressions of the holder, as to the rela- 
 tion subsisting between the drawer and the drawee, could 
 not be allo\ved to affect the rights of the former, as a party 
 to the biU.» 
 
 § 1021. Partner Drawing Upon His Firm, Not Entitled 
 to Notice. — But though it has been frequently decided that 
 the drawer's or indorser's knowledge of the insolvency of the 
 maker or drawee of a note or bill would be no excuse for 
 failure to give notice of its dishonor,* the case is quite dif- 
 
 ' Groton v. Dallheim, 6 Me., 476. 
 -Mobley v. Clark, 28 Barb., 390. 
 3 Taylor v. Young, 3 Watts, 339. 
 
 * Sussex Bank v. Baldwin, 17 N. J. Law, 487; Lliller v. Hackley, 5 
 Johns., 375; U. S. Bank v. Southard, 17 N. J. Law, 473.
 
 W'AIVEE AND EXCUSE. 535 
 
 ferent when the bill is drawn upon a copartnership by a 
 member of the firm. There the fact of insolvency being 
 known by the drawer at the inception of the biU, has been 
 regarded as a virtual withdrawal of the funds.^ And aside 
 from the question of insolvenc}'-, a partner drawing upon the 
 firm of which he is a member is not entitled to notice of 
 dishonor, as he occupies the position on the bill of drawee, 
 as well as drawer.- For the same reason, where a note is 
 made by a partnership, in favor of another, and is indorsed 
 by one who is an active member of both firms for the payee, 
 it has been held that notice of dishonor was unnecessary to 
 bind the indorser.* 
 
 § 1022. Goods Purchased for Use of Firm Will Not 
 Excuse. — But where the maker and the indorser of a note 
 were partners, it was held that the latter was entitled to 
 notice, although the consideration was goods purchased for 
 the use of the firm in the conduct of their partnership busi- 
 ness.* 
 
 § 1023. Fraud hy Indorser Excuses Notice. — Where 
 the holder of a note made a valid and binding contract of 
 extension with the maker, and then transferred the note by 
 indorsement to a purchaser for value, before maturity, with- 
 out notice of such contract of extension, he was held, by 
 the perpetration of this fraud upon his indorsee, to have 
 rendered notice of dishonor to himself, as indoi-ser, unnec- 
 essary.^ 
 
 § 1024. Motives for Indorsement Immaterial. — The 
 motives by which the indorser is actuated in becoming a 
 party to the instrument cannot affect his right to notice, so 
 long as the indorsement is not for his own accommodation, 
 by which he becomes the substantial maker. He may be an 
 
 » FuUer v. Hooper, 3 Gray, 334. 
 
 ^Gfowan v. Jackson, 20 Johns., 176. 
 
 3Dwight V. Scovill, 3 Conn., 654; West Branch Bank v. Pulmer, 3 
 Pa. St., 399. 
 
 * Foland v. Boyd, 23 Pa. St., 476. 
 
 5 Williams v. Brobst, 10 Watts, 111; Amoskeag Bank v. Moore, 37 N. 
 H.. 539.
 
 536 KOTICE OF DISHONOE OF COMMERCIAL PAPER. 
 
 indorser merely for the accommodation of the maker, or he- 
 may expect to gain some pecuniary advantage by assuming 
 the liability ; but neither of these circumstances will affect 
 his status on the instrument, nor deprive him of the right to 
 notice of dishonor,^ 
 
 § 1025. Adding the Word " Surety," No Excuse.— Add- 
 ing the word "surety" to the indorsement does not divest 
 the party of the character of indorser, and hence does not 
 dispense with the necessity for notice, as would be requu-ed 
 where the indorsement was made without this addition. It 
 merely gives him the advantages of the character of surety 
 in addition to those of indorser.- 
 
 § 1026. Presence of Indorser When Payment Refused, 
 No Excuse. — The personal presence of the indorser when 
 demand of payment was made and the payment refused, 
 has been held insufficient to excuse a failure to give notice 
 of dishonor.^ 
 
 ' § 1027. Attachment of Funds, No Excuse. — The attach- 
 ment of the funds in the hands of the drawee, at the suit of 
 a creditor of the drawer, has been held insufficient to excuse 
 a failure of the holder to give the drawer notice of the non- 
 payment of a bill of exchange, notwithstanding the notice 
 of attachment, which would bring to his knowledge cir- 
 cumstances calculated to render it impossible for the drawee 
 to honor the draft at maturity without incurring the risk of 
 a double liabiUty.* 
 
 § 1028. Note Toid at Inception, Notice Unnecessary. — 
 Upon the ground that the indorsement is, in addition to the 
 conditional undertaking to pay, an implied warranty of the 
 genuineness of the instrument, it has been held that notice 
 is not necessary to bind the indorser of a note which was 
 'Void at its inception.* 
 
 1 Seabuiy v. Hungerford, 2 Hill, 80. 
 
 2 Bradford v. Corey, 5 Barb., 461. 
 
 3 Grant v. Spencer, 1 Montana, 136. 
 * Stanton u. Blossom, 14 Mass., 113. 
 
 5 Chandler v. Mason, 3 Vt., 193; Turnbull v. Boyer, 40 N. Y., 456.
 
 CHAPTER XL 
 
 PUBLICATION OF NOTICES. 
 
 I. Original PROcasss. 
 n. Judicial, Sales. 
 
 ni. Non-judicial Involuntary Sales. 
 IV. Miscellaneous Proceedings. 
 
 I. Oeiginal Process. 
 
 § 1029. General Character of Service by Publication. 
 
 1030. Must Conform to Statute. 
 
 1031. Suits in Which Generally Employed. 
 
 1032. Affidavit or Declaration. 
 
 1038. Must Aver Jurisdictional Facts. 
 
 1034. Should Allege Property Within State. 
 
 1035. Must Aver Cause of Action. 
 
 1036. Ground of Attachment. 
 
 1037. Attachment of Property. 
 
 1038. Requisites of Affidavit in New York. 
 
 1039. Example of Sufficient Affidavit in California. 
 
 1040. Averment of " Due Dihgence " Held Sufficient. 
 
 1041. Difference in Statutes. 
 
 1042. Conclusions of Law Not to be Stated. 
 
 1043. Expression of Opinion Not Sufficient. 
 
 1044. Information and Belief. 
 
 1045. Sufficient Statement of Absence from State. 
 
 1046. Affidavit Attached to Other Papers. 
 
 1047. When Sufficiency of Affidavit Presumed. 
 
 1048. Not Impeachable in Collateral Proceeding. 
 
 1049. Averments in Pleading Same as in Affidavit. 
 
 1050. Amendment Not Allowed After PubUcation. 
 
 1051. Order of Publication and Notice. 
 
 1052. Who to Make the Order. 
 
 1053. Must be by Designated Officer. 
 
 1054. Change of Order Without Authority. 
 
 1055. Contents of the Order. 
 
 1056. Sufficient Recitals to Inform Defendant. 
 
 1057. Averment of Attachment in Notice.
 
 538 PUBLICATION OF NOTICES 
 
 § 1058. Nature and Amount of Plaintiff's Demand. 
 
 1059. Foreclosure and Partition — Description. 
 
 1060. Names of Defendants. 
 
 1001. Unnecessary to Designate Statute. 
 
 1062. Order Must be Properly Signed, 
 
 1063. Should State Eeturn Day. 
 
 1064. Publication. 
 
 1065. Newspaper. 
 
 1066. What is Newspaper? 
 
 1067. ^Published in Designated Paper. 
 
 1068. Substitute for Publication in Paper. 
 
 1069. Full Time. 
 
 1070. Computation of Time. 
 
 1071. Tlu-ee Calendar Months. 
 
 1072. Three Weeks Successively. 
 
 1073. Last Insertion Four Weeks Prior to Term. 
 
 1074. Six Weeks' Publication. 
 
 1075. When Time Cannot be Shortened. 
 
 1076. Days, Weeks or Months. 
 
 1077. Certain Time, or Certain Number of Times. 
 
 1078. Ten Publications in Ten Weeks. 
 
 1079. Two Weeks in Daily Paper. 
 
 1080. Proof of Publication. 
 
 1081. To Satisfaction of Court. 
 
 1082. AiHdavit Not Conclusive. 
 
 1083. Divorce and Alimony. 
 
 1084. Judgment Binds Propei-ty. 
 
 1085. Judgment Not Subject to Collateral Attack. 
 
 § 1029. General Character of Service by Publication. 
 
 Publication is a means authorized by statute in most, if not 
 all, the states of tlie Union, for obtaining constructive serv- 
 ice of process, when from the non-residence, absence from 
 the state, or absconding of the defendant, a more direct 
 mode of service becomes impracticable. Service of sum- 
 mons in this manner is called coiistructive, not because the 
 publication in the manner prescribed by statute raises any 
 reasonable presumption that thereby the defendant is ad- 
 vised of the pendency of the suit, for its authorization is 
 not confined to cases where there is even a possibility of its 
 ever coming to the knowledge of the party to be affected. 
 The defendant may have removed so far beyond the con-
 
 OPwIGIXAL TROCESS. 539 
 
 fines of civilization that it would he impossihle in the nature 
 of things for the paper containing the first insertion of the 
 notice to reach him before the return day, and it will still 
 be as effective as though the paper came regularly to his 
 hands. 
 
 § 1030. Must Conform to Statute. — As this manner of 
 serving process depends for its validity more upon its strict 
 conformity to the statute by which it is authorized than 
 upon any inherent probability of its conveying intelligence 
 of the impending suit to the party whose rights are to be 
 affected, the fact that it has actually come to the knowledge 
 of defendant cannot be shown to supply any material devi- 
 ation in the publication from what the statute prescribes. 
 The statute, being in derogation of common law, is always 
 strictly construed, and it must be shown affirmatively that 
 its provisions have been complied with.^ 
 
 § 1031. Suits in Which Genenally Employed. — Parties 
 may be effectually served by publication, in general, where 
 the suit is brought by attachment, or to foreclose a mort- 
 gage or deed of trust, or otherwise to directly affect the 
 title to propertjT" within the jmnsdiction of the court.- This 
 manner of service is also extensively used in suits for 
 divorce.* 
 
 § 1032. Affidavit or Declaration. — ^The first essential 
 requisite to a valid publication of original process is the 
 affidavit, return or declaration upon which the order is 
 based. The allegations should be distinct and unequivocal, 
 and should show the existence of a state of facts such as 
 
 1 Scorpion S. M. Ck). v. Marsano, 10 Nev., 370; Likens v. McCormick, 
 39 Wis., 313. 
 
 2 People V. Huber, 20 Cal., 81; Cook v. Farren, 34 Barb., 95; Lawrence 
 V. State, 30 Ark., 719; Gray v. Larrimore, 3 Abb. (U. S.), 542; Sexton v. 
 Rhames, 13 Wis., 99; Lovejoy v. Lunt, 48 Me., 377; Zacharie v. Bowers, 
 3 Sm. & M., 641 ; Bobb v. Woodward, 42 Mo., 483. 
 
 sjarvis v. Barrett, 14 Wis,, 591; Pomeroy v. Betts, 31 Mo., 419; Wil- 
 son V. Ladd. 49 Me., 73.
 
 510 PUELICATION OF NOTICES. 
 
 would give tlie court or judge jurisdiction to order the 
 publication.^ 
 
 § 1033. Must Aver Jurisdictional Facts. — It was ac- 
 cordingly held in Eastbrook v. Eastbrook,^ that the affidavit 
 should aver diligence in endeavoring to find the party to be 
 served Tvithin the jurisdiction, and that the court could not 
 be satisfied of the existence of the necessary jurisdictional 
 facts by the certificate of the sheriff that he had reason to 
 believe that the defendant was a non-resident, or was be- 
 yond the jurisdiction of the court. 
 
 § 1034. Should Allege Property Within State.— So, 
 where the affidavit stated that the defendant was a non- 
 resident of the state, but failed to allege that he had prop- 
 erty within the state, it was held insufficient to authorize 
 the order of pubhcation.* 
 
 § 1035. Must Aver Cause of Action. — So, also, has it 
 been held that the affidavit should show, by a sufficient 
 statement of facts, the existence of a cause of action in 
 favor of plaintiff and against defendant, and also the nature 
 of such cause of action.^ 
 
 § 1036. Ground of Attachment. — Where the suit was 
 brought by attachment, the affidavit was required to state, 
 in addition to the nature of the cause of action between 
 the parties, the nou-residence, departure from state, conceal- 
 ment to avoid summons, or some one or more of the differ- 
 ent grounds for attachment, and a failure in this respect, it 
 was held, would render the judgment in pursuance of such 
 service, utterly void.^ 
 
 § 1037. Attachment of Property. — So, where the affi- 
 davit failed to allege that the property of the defendant 
 
 iBardsley v. Hines, 33 Iowa, 157; Merrill v. Montgomery, 25 Mich., 
 73; SclieU v. Leland, 45 Mo., 289. 
 
 2 64 Barb., 431. See, also, Waffle v. Goble, 53 Barb., 517. 
 
 3 Spiers v. Halstead, 71 N. C„ 209. 
 *Claypole v. Houston, 13 Kan., 334. 
 
 sBraley v. Seaman, 30 Cal., 610; Riley v. Nichols, 1 Heisk. (Term.), 16.
 
 OEIGIXAL PROCESS. 541 
 
 had been attached in the suit, the defect was considered 
 fatal to the judgment, as this was a fact necessary to the 
 jurisdiction of the court,' 
 
 § 1038. Requisites of Affldayit in New York.— The 
 essential requisites of the affidavit for an order of publica- 
 tion under the laws of the state of New York, as laid down 
 in Bixby v. Smith,- are: 1. That defendant cannot after due 
 diligence be found in the state. 2. That a cause of action 
 exists in favor of plaintiff and against such defendant, or 
 that defendant is a proper party to an action relating to 
 property within the state. 3. That defendant is a non-res- 
 ident of the state. And where the affidavit upon which the 
 order was made averred diligence on his part and proper 
 efforts to find defendant, but that he could not be found in 
 the state, this was held a sufficient statement, as to the non- 
 residence of the defendant, to warrant the issuing of the 
 order of publication." 
 
 § 103«. Example of Sufficient Affidavit in California. 
 In a case arising under the California statute, it was 
 held, where the affidavit stated that defendant had ab- 
 sented himself from his place of abode on the day before 
 the commencement of the suit, informing his servant that he 
 would return on the following day, that he could not be 
 found by the officer, who made diligent search for him, and 
 affiant believed that defendant concealed himself for the 
 purpose of avoiding summons, and that the claim sued on 
 AA^as a just debt, that this was sufficient to justify the order.* 
 
 § 1040. Averment of Due Diligence Held Sufficient.— 
 Where the affidavit stated that the defendant could not, 
 " with due diligence, be found Avithin the state," it was 
 hekl not defective for failing to allege Avith particularity 
 
 1 Drake v. Hale, 38 Mo., 346; EUey v. Nichols, 1 Heisk. (Tenn.), 16. 
 But see Dronillarcl v. Wliistler, 29 Ind., 552, where it is held that the 
 affidavit need not mention the attachment. 
 
 249 How. Pr., 50; S. C, 5 Thompson & C, 281. 
 
 3 Simpson v. Bm-ch, 6 Thomp. & C. (N. Y.), 560; S. C, 4 Hun, 315. 
 
 *Seaver v. Fitzgerald, 23 Cal., 85.
 
 542 PUBLICATION OF NOTICES. 
 
 Avhat efforts had been made to find defendant within the 
 state.^ 
 
 § 1041. Difference in Statutes. — The statutes of the 
 different states vary materially with respect to the affidavit. 
 In some of them the allegation of non-residence is not suffi- 
 cient without the further statement that the defendant 
 could not be found within the state,^ while in others it seems 
 sufficient to state that defendant is not a resident of the 
 state.' 
 
 § 1042. Conclusions of Law Not to l)e Stated.— The 
 decisions are by no means uniform upon the question of 
 what is a sufficient allegation of diligence in the affidavit. 
 Under a statute requu-ing that it should appear by affidavit 
 to the satisfaction of the court or officer that personal 
 service could not be had within the state, it was held that 
 the words " appear by affidavit " meant that the affidavit 
 should allege such matters as would amount to legal evi- 
 dence of the fact, and would be received in the ordinary 
 course of judicial proceedings, — "ISTot conclusions, opinions 
 or hearsay." The averment that the "defendant cannot 
 with due diligence be found within the state," was therefore 
 treated as the mere expression of an opinion on the part of 
 the deponent. ^ The affidavit, it was held, should have de- 
 tailed all that had been done by the deponent in endeavor- 
 ing to obtain personal service upon the defendant, and 
 should be sufficiently strong to raise at least a prima facie 
 case that the defendant was out of the state when the suit 
 was commenced.^ 
 
 § 1043. Expression of Opinion Not Sufficient. — In Har- 
 rington V. Loomis,* the court, following the above construc- 
 tion of the statute, applied it to a case where the affidavit 
 averred that deponent had " seen and read a letter received 
 
 1 Sueterlee v. Sir, 25 Wis., 357. 
 
 -Mackubin v. Smith, 5 Minn., 367. 
 
 3 Byrne v. Roberts, 31 la., 319; Dronillard v. Wliistler, 29 Ind., 552. 
 
 * Mackubin v. Smith, 5 Minn., 367. 
 
 nOlNIinn., 366.
 
 OJRIGIXAL PROCESS. 54:3 
 
 by mail, by * -' ^' deponent's law partner, within a few 
 days past, having the postmark of the postoffice at Mount 
 Hilicon, Franklin county, Missouri, and dated at that place 
 by the defendant; that this deponent's law partner is the 
 agent of both said defendants, and said letter, last mentioned 
 as so received, was directed to him and concerned the said 
 HaiTington's business in this county, and this deponent 
 verily beUeves that said defendant wrote the same, and 
 that he is now at Mount Hilicon aforesaid." This affidavit 
 was held insufficient, as its statements were not inconsistent 
 with defendant's residence in the state, though they ex- 
 pressed an opinion to the contrary. 
 
 § 1 044. Information and Belief. — Elsewhere, it has been 
 held that for the purpose of obtaining an order of pubhca- 
 tion, an affidavit founded on information and behef will be 
 sufficient without stating in detail the sources of such infor- 
 mation or the grounds of such belief.^ 
 
 § 1045. Sufficient Statement of Absence from State. — 
 Where the affidavit stated that the defendant was a resident 
 of the Southern Confederacy, and that it was consequently 
 impossible to obtain personal service, this was held sufficient 
 to authorize an order of pubhcation of notice of foreclosure 
 of a mortgage.- And the mere statement of defendant's 
 residence in the Southern Confederacy was held sufficient to 
 show that he could not be found within the state of New 
 York.-^ 
 
 §1046. Affidavit Attached to Other Papers.— Where 
 the affidavit for an order of publication is appended to 
 another paper which is properly entitled in the case, and the 
 affidavit refers to such paper, it will be presmned that it has 
 by the reference adopted the title, and the objection that 
 the affidavit is not entitled in the cause will not be enter- 
 tained.* 
 
 1 Steinle v. BeU, 12 Abb. Pr. (N. S.), 171. 
 2Deitricli v. Lang, 11 Kan., 636. 
 
 3 Van Wyck v. Hardy, 4 Abb. App. Dec, 496. 
 
 4 King V. Harrington, 14 Mich., 532.
 
 544 PUBLICATION OF NOTICES. 
 
 § 1047. When Sufficiency of Affldayit Presumed.— Not 
 
 withstanding the strictness with which the statute has uni- 
 formly been construed, as against those claiming under 
 judgments or decrees rendered by default after notice by 
 publication, in a case where the term of six years had 
 elapsed after the rendition of the judgment, and it did not 
 appear affirmatively to the contrary, it was presumed that 
 the order of publication was made on a sufficient affidavit.^ 
 
 §1048. Not ImpeacliaWe in Collateral. Proceeding. — 
 Where there is a judgment by default, execution and sale 
 of real estate, pursuant to a published notice, a subsequent 
 grantee of the debtor in the execution cannot, in a collateral 
 proceeding, show the falsity of the affidavit upon which the 
 order of publication was founded, in order to impeach the 
 validit}^ of the judgment, execution and sheriff's deed.^ 
 
 § 1041). Ayernients in Pleading Same as in Affidavit. 
 When by the terms of the statute no affidavit is necessary, 
 as where the order is based upon a return of the officer in 
 whose hands process has been placed for personal service, 
 or when the petition or complaint sets forth the facts which 
 render the publication of notice necessary, substantially the 
 same averments, and the same mode of stating them, is 
 required, as when they are set forth in the original affidavit. 
 
 § 1050. Amendment Not Allowed After Publication. — 
 "When, after service by publication is made, the defendant 
 does not appear to the action, the plaintiff will not be per- 
 mitted to amend his pleading and take judgment by default 
 upon the cause of action set out in the amended pleading. 
 The defendant has no notice of the amendments, and is only 
 called upon to answer the demand set up against him by 
 the petition on file when the notice was published.^ 
 
 § 1051. Order of PuWication and Notice. — In the next 
 place the order of publication presents itself for considera- 
 tion. By whom should it he made? and What should it 
 
 1 Gemmell v. Eice, 13 IMinn., 400. 
 
 2 Ogden V. Walters, 12 Kan., 282. 
 
 3 Janney v. Spedden, 38 Mo., 395.
 
 ORIGINAL TEOCESS. 545 
 
 contain? In answering the latter of these inquiries, wo 
 shall be compelled to enter into a description of the notice 
 itself, as the order generally includes the notice, and both 
 are published together. So, to avoid unnecessary repeti- 
 tion, they will be treated of without attempting to distin- 
 guish between them in detail. In ordering the publication 
 it seems almost indispensable to state what the notice shall 
 contain, and the notice recites the order for the purpose of 
 showing the authority for the publication. 
 
 §1052. Who to kake the Order.— As to who shall 
 make the order, this depends upon the statute by which it 
 is authorized, the nature of the proceeding, and other minor 
 circumstances too numerous and diverse to mention in detail, 
 as the usefulness of the information, which, in view of fre- 
 quent changes in the statute law, could only be relied upon 
 temporarily, would not counterbalance the space consumed. 
 In general, however, the order is made by the court where 
 the suit is pending or by the judge or clerk in vacation.^ 
 
 §1053. Must he hy Designated Officer.— Where the 
 court or officer by whom the order shall be made is desig- 
 nated by statute, a valid judgment cannot be rendered by 
 default, upon a publication pursuant to the order of any one 
 else.^ Thus, in Bardsley v. Hines,^ the record relied upon 
 as showing title in defendant under a decree of foreclosure, 
 contained the original notice which was served by publica- 
 tion, by which it appeared that the order was made by the 
 clerk of the court, Avhereas the statute required an order 
 of publication by the court or judge of the county or dis- 
 trict court. It was held that the publication under the order 
 of the clerk amounted to no more than if the notice had 
 been published without any order at all, and the decree ren- 
 dered by default was utterly void. 
 
 § 1054. Change of Order Without Authority.— So 
 where, under the Probate Act of California, it was neces- 
 
 1 See Local Statutes. 
 
 2 Townsend v. Tallant, 33 Cal., 45. 
 
 3 33 la., 157. 
 
 35
 
 546 PUBLICATION OF NOTICES. 
 
 sary to publish an order of the court, giving public notice 
 to all persons interested in the estate of decedent, to appear 
 and show cause, etc., and the court made the order, desig- 
 nating the paper, but before the expiration of the time for 
 which the notice was required to be pubhshed by the pro- 
 vision of the statute, and the order made in pursuance 
 thereof, the ])aper was discontinued, and the administrator 
 selected another paper in which the order was pubhshed, 
 such publication was decided to be unauthorized, and the 
 proceedings in pursuance thereof void.^ 
 
 §1055. Contents of the Order. — As matter of pre- 
 amble the published order usually contains a recital of such 
 jurisdictional matters as are averred in the affidavit or peti- 
 tion, as a foundation for the order.- Kor can this be said 
 to be unnecessary, as it is essential that the pubhcation 
 should set forth in substance all that is alleged against the 
 party to be affected ; though the form in which such facts 
 are expressed is immaterial. 
 
 § 1056. Sufficient Recitals to Inform Defendant. — 
 The notice should contain sufficient recitals to inform de- 
 fendant of the nature of the suit to which he is required to 
 answer. To this end, the order of publication and notice 
 should go to the extent of a substantial statement of all the 
 objects of the suit ; and where it was stated in a pubhshed 
 notice that the object of the suit was to set aside a deed, 
 without any statement of tlie grounds upon which such a 
 decree was prayed, the notice was held insufficient, and a 
 judgment rendered in pursuance thereof utterly void.' 
 
 §1057. Averment of Attachment in Notice. — So, 
 Avhere the suit is by attachment, it is held in some of the 
 states that the notice as published should state that the de- 
 fendant's property has heen attached} Where such is the 
 
 'Townsend v. Tallant, 33 Cal., 45. See, also, Adriancev. McCafferty, 
 2 Rob. (N. Y.), 153; Pomeroy v. Betts, 31 Mo,, 419. 
 
 2 Newman v. Cincinnati, 18 Ohio, 331. 
 
 sBobb V. Woodward, 42 Mo., 483. 
 
 •^ Durossett v. Hale, 38 Mo. , 346. See, however, Dronillard v. "Whistler, 
 29 Ind., 552, where the notice is not required to show that the proceedings
 
 ORIGINAL PEOCESS. 547 
 
 construction given to the statute by the courts of the state, 
 it has nevertheless been held sufficient to allege that the 
 property was alovt to he attached^ as the object of the notice 
 was to advise the defendant, of ih.e 2)'^ndency of the siiit, 
 and the plaintiff was entitled to the order on bringing the 
 suit, which might be before the clerk issuing the order in 
 vacation would be able to certify to the levy of the attach- 
 ment.' 
 
 § 1058. Nature and Amount of Plaintiff's Demand. — 
 Under a statute requiring the published notice to state the 
 " nature and amount of the plaintiff's demand." the notice 
 in a suit by attachment alleged that the proceedings were 
 " founded on two promissory notes for the sum of $386.94." 
 A default was taken for the sum of $516. In deciding a 
 motion to set aside the judgment for irregularity, this was 
 held sufficiently descriptive of the nature of the demand, 
 but as it nowhere appeared how much was still due on the 
 notes, the notice was insufficient for the want of a statement 
 of the amount claimed, and the judgment was set aside.^ 
 
 § 1059. Foreclosure and Partition — Description. — 
 "Where the object of the suit is the foreclosure of a mort- 
 gage, or the partition of real estate, the property to be 
 affected should be correctly described, and with sufficient 
 certaint}" to leave no room for doubt as to the particular 
 parcel or parcels intended.' 
 
 § 1060. Names of Defendants. — The order, and the no- 
 tice in pursuance thereof, should be in harmony, and where 
 there are several defendants, one or more of whom are, 
 from non-residence or other cause, liable to be summoned 
 by publication, both the order and the published notice 
 
 are by attachment. See, also, Cooper v. Reynolds, 10 Wall., 308; Pen- 
 uoyer v. Neff, 95 U. S., 714; Voorhees v. Bank of U. S., 10 Pet., 449; 
 Paine v. Moorland, 15 Oliio, 435; 1 Wade on Attaclunent, § 45. 
 
 'Harris v. Grodner, 42 Mo., 159. 
 
 2 Haywood v. Russell, 44 Mo., 252. See, also, Gary v. May, 10 Ohio, 
 36 ; Lawler v. Whette, 1 Handy, 29. 
 
 sPomeroy v. Betts, 31 Mo., 419.
 
 545 PUBLICATION OF NOTICES. 
 
 should contain the names of those to be so served. Accord- 
 ingly, in Pomeroy v. Betts,^ where there were several non- 
 resident defendants, and several others as to whom it 
 appeared by the sheriff's return that they could not be 
 found, etc., and an order of publication was made as to the 
 non-residents, and service in the same manner was ordered 
 uj)on those not found, under a separate provision of the 
 statute authorizing an order of publication founded upon 
 such return, by the court and not by the clerh, it was held 
 that, although the names of all the absentees appeared in 
 the notice, it being published under the order against the 
 non-residents, could not be regarded as directed to those not 
 mentioned in the first order, which was by the clerk. The 
 order founded upon the no7i est return should have been 
 published separately, or both should have been signed by 
 the court. As it was, the judgment being against all, was, 
 for the irregularity, set aside, even as to the defendant per- 
 sonally served. 
 
 § 10(>1. Unnecessary to Designate Statute. — It is not 
 necessary for either the order or notice to designate the 
 statute by which the same is authorized, and when there is 
 an attempt to incorporate this or any other useless matter 
 in the notice, the validity of the proceeding will not be 
 affected by errors in setting them out or designating them.' 
 
 § 1062. Order Must be Properly Signed. — But as the 
 making of the order is an official act, publication of the no- 
 tice can give no validity to proceedings had in pursuance 
 thereof, unless the order is signed by the court, judge or 
 clerk designated by law as the proper one to make the 
 same.' 
 
 § 1063. Should State Return Day. — The notice should 
 also name the day, with reasonable certainty, upon which 
 the defendant so served with process is required to appear 
 and answer, and the order should direct the time ior which 
 
 131 Mo., 419. 
 
 2Soule V. Chase, 1 Rob. (N. Y.), 233. 
 3 Hays V. Lewis, 21 Wis., 663.
 
 OKIOmAL PROCESS. 54:9 
 
 the publication is to be made. It was accordingly held, 
 where a subpoena in chancery, served by publication, was 
 dated "March 2, 1860," requiring appearance on the second 
 Monday of " March next," that this would not authorize a 
 decree jpro confesso} 
 
 § 1064. Publication. — In the next place, in pursuing the 
 requirements of the statute and following the directions of 
 the order, the important matter is the publication of the 
 notice. A consideration of this necessarily involves an in- 
 quiry into the proper medium, to be employed in making 
 public the facts contained in the notice, and the time of pub- 
 lication, with reference both to the number of months, 
 weeks or days for which such publication shaU continue, 
 and the particular time when it shall cease. 
 
 § 1065. Newspaper. — The medium of publication gen- 
 erally designated by the statute is a newspaper. Sometimes 
 it is required to be a public newspaper ; but this adds noth- 
 ing to what would be necessarily implied in the term 
 " newspaper ; " for any publication answering this general 
 description must of necessity be public in its character. So 
 that proof of publication in a nexospaper would show a suf- 
 ficient compliance with a statute or order requiring the 
 notice to be published in ts, piiblic newspaper? 
 
 § 1066. What is a Newspaper? — In order to fulfill the 
 terms of the law, the notice must be directed, by the court 
 or ofiicer, to be inserted, for the statutory time, in some 
 paper printed and circulated/br the dissemination of news; 
 but it is not essential that, to answer the description, the 
 paper shall be devoted to the dissemination of news of a 
 general character. It may, with equal propriety, be pub- 
 lished in a paper devoted exclusively to the discussion of 
 religious, legal, commercial or scientific topics, and the dif- 
 
 lEleev. Wait, 38IU.,70. 
 
 2 Bailey v. Myrick, 50 Me., 171. In Mobley v. Leophart, 47 Ala., 257, 
 it was held that, as the chancellor and register were clothed with discre- 
 tion as to the place of publication, a decree i^ro confesso in Alabama, on 
 a publication in Georgia, was good.
 
 550 PUBLICATION OF NOTICES. 
 
 fusion of knowledge touching special matters within its 
 limited sphere, as in a public journal, the columns of which 
 are open to news of a general character. It may be a relig- 
 ious newspaper, a commercial newspaper, a legal newspaper, 
 a scientific newspaper, or a political newspaper.^ 
 
 § 1067. Published in Designated Paper.— When the 
 newspaper has been designated there must be a strict com- 
 pliance with the order in this respect. The pubUcation 
 being made in any other paper than the one mentioned in 
 the order, would confer no jurisdiction upon the court to 
 render judgment, where there is no appearance by the de- 
 fendant. But a slight variance in the title of the paper in 
 which the notice is directed to be published, from that by 
 Avhich it is really known, will not vitiate the process, where 
 it satisfactorily appears that the pubUcation was in the one 
 intended by the order. As where the order designated the 
 " Evening Day Book," and the notice Avas published in the 
 " Kew York Day Book," there being no evidence offered 
 that there was any other paper of the same or a similar 
 name, to which the order could apply, this was held suffi- 
 cient.^ 
 
 § 1068. Substitute for Publication in Paper. — Other 
 means are sometimes prescribed by statute, either as a sub- 
 stitute for publication in a newspaper, or in conjunction 
 with such publication, such as posting the notice in several 
 public places within the county, but this method of publish- 
 ing notices is so rarely employed for the purpose of obtain- 
 ing service of process that it will not receive further notice 
 here. 
 
 § 1069. Full Time. — It is of the utmost importance 
 that the notice shall be published for the full time required 
 by the statute and directed by the order of the court or 
 
 1 Kellogg V. Corrico, 47 Mo., 157; Kerr v. Hitt, 75 111., 51. But in the 
 absence of contrary provisions in the statute, it wUl be understood to 
 mean a newspaper published in the English language. Cincinnati v. 
 Bickett, 26 Oliio St., 49; Graham v. King, 50 Mo., 23; 11 Am. R., 401. 
 
 2 Soule V. Chase, 1 Rob. (N. Y.), 222.
 
 OKIGIXAL PROCESS. 551 
 
 officer ; ' that the last insertion shall be a sufficient length 
 of time before the return day ; - and that such publication 
 shall not commence prior to the date of the order; for until 
 the order is made the publication is unauthorized. 
 
 § 1070. Computation of Time. — In computing the 
 time of publication and the statutory period intervening be- 
 tween the last pubhcation and the return day, the date of 
 the first insertion will be included, for the purpose of deter- 
 mining whether the notice has been pubhshed for the full 
 tinje, and the intervening period will be understood to com- 
 mence with the day following that on which the time of 
 publication ceases.' 
 
 § 1071. Three Calendar Months. — An example of this 
 is furnished by the case of Savings, etc., Society v. Thomp- 
 son.* There the first weekl}^ insertion was made on the 
 10th day of January and the last on the 9ih day of Aj^ril 
 following. This was held to be a publication for three full 
 calendar months ; and the first day of the forty required to 
 intervene between the pubhcation and the return would be 
 the 10th day of April. 
 
 % 1072. Three Weeks Snccessively. — Where the statute 
 required pubhcation for " three weeks successively," before 
 the hearing, its provisions were held sufficiently compUed 
 with by three weekly publications, although the last of the 
 three was on the day before that appointed for the hearing.* 
 
 § 1073. Last Insertion Four Weeks Prior to Term.— 
 So, in the case of Haywood v. Eussell,*^ under a statute re- 
 quiring the pubhcation of the notice for four weeks, and 
 that the last insertion should be " at least four weeks before 
 the term," it was held that this did not necessarily give 
 eight weeks from the first insertion to the commencement 
 
 1 HUl V. Faison, 27 Tex., 428. 
 -Grewell v. Henderson, 5 Cal., 465. 
 
 5 Mitchell V. Woodson, 37 Miss., 567. 
 4 33 Cal., 347. 
 
 5 Sweet V. Sprague, 55 Me.. 190. 
 
 6 44 Mo., 252. See, also, Boonett v. Hetherington, 41 la., 143.
 
 552 PUBLICATION OF NOTICES. 
 
 of the tenn. It was the last insertion, not the last week of 
 the publication, which was required to be four weeks prior 
 to the term. The notice being inserted at the beginning of 
 the last of the four weeks for which it was required to be 
 jjublished, the remaining portion of the week might go to 
 make up a part of the time necessary to intervene between 
 the publication and the commencement of the time at which 
 the process was returnable. 
 
 § 1074. Six Weeks' Publication.— Where the statute 
 required six weeks' publication of notice of an application 
 to sell lands of a decedent, notice for any shorter time was 
 held insufficient to warrant the sale, although the applica- 
 tion was only made after the expiration of six weeks from 
 the date of the first insertion of the notice.^ 
 
 § 1075. When Time Cannot be Shortenetl. — So where 
 the publication by the surrogate of a notice " to all persons 
 interested," etc., to appear and show cause why a sale of 
 decedent's land should not be made, was required by stat- 
 ute, such publication was held necessary to confer jurisdic- 
 tion on the surrogate to make the order of sale, and if 
 without the statutory notice, the sale would be void.^ And 
 the time prescribed by the statute was held mandatory upon 
 the surrogate, and could not be shortened by him without 
 rendering the order and sale utterly void.^ ISTor can the 
 time of hearing an application for an order of sale be set 
 for a term of court subsequent to that for which notice was 
 originally given, ^VithoMt fiu'ther notice^ * but where process 
 has been duly published and made returnable to the first 
 term of court, in an action for which publication is author- 
 ized, it may be regularly continued and judgment taken at 
 a subsequent term.^ 
 
 1 Gibson v. Roll, 30 lU., 172; Herdman v. Short, 18 111., 59. 
 sCorwin v. Merritt, 3 Barb., 341. 
 
 3 Havens v. Sherman, 42 Barb., 636. 
 
 4 Morris v. Hogle, 37 HI., 150: Schnell v. Chicago, 38 Ul., 383. 
 sCrabbc. Atwood, 10 Ind., 331.
 
 ORIGINAL TEOCESS. 553 
 
 § 1076. Days, Weeks or Months.— The time for which 
 notice shall be given is expressed either in days, weeks or 
 months, and in construing the meaning of these terms with 
 reference to notices of judicial and other involuntary sales 
 of real estate, conclusions have been reached by the courts 
 which will in general be equally applicable to notices by 
 publication of judicial proceedings.' 
 
 § 107 7. Certain Time, or Certain Number of Times. — A 
 distinction, however, is made between statutes requiring pub- 
 lication for a certain period of time^ in what manner soever 
 such period is denominated, and those requiring the inser- 
 tion of the notice a certain number of thnes^ in a newspaper, 
 where the continuance of the pubhcation will be deter- 
 mined by the number of regular issues within a given time.'- 
 
 § 1078. Ten Publications in Ten Weeks.— This distinc- 
 tion is fairly illustrated in Soule v. Cliase,^ where the notice 
 published was of an order of the court, for the creditors of 
 an insolvent debtor to appear and show cause why the in- 
 solvent should not be discharged from his debts. There the 
 statute under which the publication was made, requu^ed the 
 notice to be by ten jmhlications, each of loJiich should he in 
 one of ten successive weehs, the commencement whereof was 
 to be determined by the first publication. The objection of 
 insuflQcient time of publication was held properly overruled, 
 although it appeared that the proof was made on the sixty- 
 third day after the first publication, the notice having been 
 inserted once in each of ten successive weeks. 
 
 § 1079. Two Weeks in Daily Paper. — It being ques- 
 tioned whether the statutory requirement, that notice should 
 be published " for two weeks successively," could be satis- 
 fied by publication for two weeks in a daily paper, without 
 a daily insertion, it was regarded as sufficient to insert the 
 notice on Tuesday and Saturday of each week.^ 
 
 1 See post, § 1100 et seq. ; % 1113 et seq. 
 
 2 Sheldon v. Wright, 5 N. Y., 497 ; S. C, 7 Barb., 39. 
 3 1 Rob. (N. Y.), 223. 
 
 < Brewer v. Springfield, 97 Mass.. 152.
 
 554 PUBLICATION OF NOTICES. 
 
 § 1080. Proof of Pul)licatioii. — Kext, as to the proof 
 of 2>uUication. A compliance with the prerequisites of the 
 statute with respect to publication is usually established by 
 the affidavit of the printer or pul)lisher of the paper in 
 which the notice is published. This, however, is a matter 
 of statutory regulation, and in general is not prescribed to 
 the exclusion of all other modes of proof. AVhere the affi- 
 davit was held admissible, it was also held that the pubUca- 
 tion might be proved by the production of the papers 
 containing the notice in court.^ ISTor is it necessary, in every 
 instance where an affidavit is relied on, that it should be 
 made by \hQ publisher oy liis foreman^ although, in general, 
 one of these would be the most likely to be cognizant of the 
 facts.^ 
 
 § 1081. To Satisfaction of Court. — In any event, it is 
 necessary that the publication must be proved, to the satis- 
 faction of the court, to have been in compliance with the 
 provisions of the statute authorizing the service of process 
 in that manner. Accordingly where the notice was not 
 dated, and an affidavit was made and filed, declaring that a 
 notice which was annexed had been published for six suc- 
 cessive weeks " preceding the said 23d day of September," 
 there being nothing in the affidavit or papers referring to, 
 or identif34ng any month of September, it was held that 
 the proof was not of publication in conformity to the statute, 
 as it did not show inlien the notice was published.^ 
 
 § 1082. Affitlavit Not Conclusive.— Where the mode of 
 proof is by affidavit, this will not generally be regarded as 
 conclusive upon the defendant appearing specially for the 
 purpose of objecting to the proceeding, on account of an 
 alleged irregularity in the service of process.* 
 
 § 1083. Divorce and Alimony. — One of the class of 
 actions wherein the process may be effectually served by pub- 
 
 1 Claybrook v. Wade, 7 Coldw. (Tenn.), 555. 
 
 2Soule V. Chase, 1 Rob. (N. Y.), 222. 
 
 3 King V. Harrington, 14 Mich. , 532. 
 
 < Mussina v. Moore, 13 Tex., 7; Kitchen v. Crawford, id., 516.
 
 ORIGINAL PROCESS. 555 
 
 lication which concerns other than mere proprietory rights, 
 is a suit for divorce and ahmony. In order to render this 
 method of service effectual, however, for the purpose of 
 binding specific property, it should include a general descrip- 
 tion of the property sought to be affected. And where 
 there is a prayer for alimony in the petition, it cannot be 
 granted upon the default of defendant, so as to render it 
 available as a personal judgment, unless there is personal 
 service.^ 
 
 §1084. Judgment Binds Property.— The effect of a 
 judgment rendered by default, or pro confesso, upon service 
 of process by publication, except in proceedings for divorce, 
 is only to bind the property of the defendant which is 
 within the jurisdiction of the court, and against which, or 
 with reference to w^hich, the suit is instituted. Consequently 
 a judgment in personam rendered upon such process is 
 void.- As a further consequence of the limitation upon the 
 jurisdiction of the court to render judgment upon process 
 served by publication, an action cannot be maintained upon 
 a judgment so obtained in another state.' 
 
 § 1085. Judgment Not Sul)ject to Collateral Attack. — 
 Where there has been a defective service of process by pub- 
 lication, and a judgment or decree is entered in pursuance 
 thereof, the proper manner of taking advantage of the 
 irregularity is by direct proceeding to set aside such judg- 
 ment or decree, as it has been laid down as a rule that tlie 
 judgments of a court of general jurisdiction are not open 
 to collateral attack, when the record upon its face shows 
 them to be regular,'' It is not enough that the record fails 
 
 » Beard v. Beard, 21 Ind., 321. 
 
 2 Cooper V. Smith, 25 la., 269; Mitchell v. Gray, 18 Ind., 123; Judali 
 V. Stephenson, 10 la., 493; Pomeroy v. Betts, 31 Mo., 419. But see Otis 
 V. Dargan, 53 Ala., 178, where it was held that tlie heirs of a decedent 
 were concluded by published notice of final settlement. 
 
 3 Chamberlain v. Faris, 1 Mo., 517; Sallee v. Hays, 3 Mo., 116; Win- 
 ston V. Taylor, 28 Mo., 83. 
 
 <Galpin v. Page, 1 Sawyer, 309; Halm v. Kelly, 34 Cal., 391; Grig- 
 non's Lessees v. Astor, 2 How. (U. S.), 319; Voorhees v. Bank of U. S.,
 
 556 PUBLICATION OF NOTICES. 
 
 to show jurisdiction, affirmatively. It must appear affirm- 
 ativcl}^ that the coui*t did not have jm'isdiction ; otherwise 
 it will be presumed.^ 
 
 10 Pet., 449; Sargeant v. State Bank of Indiana, 12 How,, 371; Huff v. 
 Hutchinson, 14 How., 586; Huntington v. Charlotte, 15 Vt., 46; Foote 
 V. Stevens, 17 Wend., 483; Granger v. Clai-k, 23 Me., 128. 
 
 1 Ante, % 1057. But when the court is exercising a special statutory- 
 jurisdiction, it is governed by the rule that applies to courts of limited 
 or special jurisdiction. 1 Wade on Attachment, §§ 46, 47.
 
 JUDICIAL SALES. 557 
 
 II. Judicial Sales. 
 
 § 1086. Statutory Eequirement, Directory. 
 
 1087. Purchaser with Notice. 
 
 1088. Description of Property. 
 
 1089. Immaterial Omissions. 
 
 1090. Changing Name of Paper. 
 
 1091. Several Executions in One Advertisement. 
 1093. Sale May be Adjourned. 
 
 1093. May be on Alias Execution. 
 
 1094. Error in Sheriff's Return. 
 
 1095. Publication in Paper Where Posting Required. 
 
 1096. Failure of Notice Will Not Avoid Sale. 
 
 1097. Strict Comphance Required. 
 
 1098. Sale Void for Want of Proper Notice. 
 
 1099. No Uniform Rule as to Notice of Sales. 
 
 1100. Time of PubHcation. 
 
 1101. Six Weeks' Notice. 
 
 1102. Once a Week for Three Months. 
 
 1103. What Constitutes Publication. 
 
 1104. Posting in Public Places. 
 
 §1086. Statutory Requirement, Directory. — In gen- 
 eral, a strict adherence to statutory requirements is not so 
 essential to a valid sale, under a judgment or decree of a 
 court, as it is to the support of a title acquired under an 
 involuntary sale made without such judgment or decree. 
 The grounds of the distinction are the notoriety of the pro- 
 ceedings in court by which the judgment was obtained, and 
 the fact of defendant's having already been brought in by 
 process, and consequently is supposed to watch all subse- 
 quent proceedings likely to affect his interest, until the proi> 
 erty levied upon to satisfy the judgment has been disposed 
 of. It has accordingly been held that the provision of the 
 statute requiring the advertisement of judicial sales Avas 
 directory, and that a purchaser at such a sale, made with- 
 out the publication of the notice directed by the statute, 
 who purchased without any knowledge of the omission of 
 duty by the officer, would take a good title, and any one
 
 558 ' PUBLICATION OF NOTICES. 
 
 injured by the official misprision would be remanded to Lis 
 remedy against the delinquent officer.^ 
 
 § 1087. Purchaser with Notice. — But where the pur- 
 chaser takes with knowledge of the failure to comply with 
 the requirements of the statute in this particular, it is held 
 differently.^ 
 
 § 1088. Description of Property. — When the property 
 is advertised for sale, especially if it be real estate, the pub- 
 lished notice should contain a substantially correct descrip- 
 tion of the property, as the title of the judgment debtor to 
 the property described in the advertisement is all the inter- 
 est that will pass by the sale. So, where the description 
 was in such general terms as, all the land of the defendant, 
 located in a particidar county, this was held insufficient 
 notice of sale to pass the judgment debtor's title in the land 
 sold, to even an innocent purchaser.^ 
 
 § 1089. Immaterial Omissions. — But immaterial vari- 
 ations or omissions in the description of the property 
 would not only not operate to defeat the title of the pur- 
 chaser at the sale, but would not furnish grounds for an 
 action against the officer committing the error. Thus in 
 Duncan v. Matney,* where the sheriff, in the advertisement, 
 omitted to mention the name of the county in which the 
 property was located. As it is generally known that the 
 sheriff of one county cannot sell land lying in another, this 
 error was treated as immaterial. 
 
 § 1090. Changing Name of Paper. — Merely changing 
 the name of the paper in which property is advertised for 
 sale under an execution issued on a judgment or decree, 
 will not have the effect of invalidating a sale made in pur- 
 suance of such advertisement.^ 
 
 1 Miner v. Natchez, 4 S. & M., 602; Hendrick v. Davis, 27 Ga., 167; 
 Johnson v. Eeese, 28 Ga., 353; Harvey v. Fisk, 9 Cal., 93. 
 
 2Hayden v. Dunlap, 3 Bibb, 216; Webber v. Cox, 6 Monr., 110. 
 
 3Frazier v. Steenrod, 7 la., 339; Merwin v. Smith, 2 N. J, Eq., 182; 
 Reynolds v. Wilson, 15 111., 394. 
 
 4 29 Mc, 368. 
 
 5 Isaacs V. Shattuck, 12 Vt., 668.
 
 JUDICIAL SALES. '559 
 
 § 1091. Several Executions in One Advertisement.— 
 
 It is not necessary that there should be a separate adver- 
 tisement for each execution, wliere there are several in the 
 hands of the officer at the same time against the same 
 defendant.^ 
 
 § 1092. Sale May be Adjourned. — It has been held that, 
 to render the sale valid, it was not requisite that it should 
 be made on the precise day for which it was advertised, if, 
 for good reason, it should be found necessary to adjourn the 
 sale to a subsequent day. As where, upon the property 
 being stricken off, the purchaser was allowed until another 
 day to perfect his arrangements for payment, and verbal 
 notice was given that the sale would be kept open until that 
 time ; but the successful bidder failing to complete his pur- 
 chase within the allotted time, the officer proceeded to sell 
 the property without further publication of notice. The 
 title acquired under this sale was held valid, because it did 
 not appear that the property was sold for an inadequate 
 price in consequence of a failure to re-advertise.- 
 
 § 1093. May be on Alias Execution. — Where an adver- 
 tisement had been published, and before the day of sale, as 
 therein specified, the original ve7iditioni exponas was re- 
 turned and an alias issued, which was in the hands of the 
 officer at the time of the sale, such sale was held valid, 
 though the original writ under which the publication was 
 made had expired, and there was no publication of notice 
 after the alias was issued.* 
 
 § 1094. Error in Sheriff's Return.— Where the sheriflfi 
 in making his return, committed an error in the description 
 of the real estate, with reference to the numbers, and such 
 error was continued in the advertisement, this was held not 
 to invalidate the sale, so as to affect the title in the hands 
 of an innocent purchaser, as against a subsequent purchaser 
 
 1 Arnold v. Dinsmore, 3 Cold., 235. 
 2Isbell V. Kenyon, 33 Mich., 68. 
 ^Luther v. McMichael, 6 Humph., 298.
 
 560 PUCLICATIOX OF NOTICES. 
 
 of the same property by a correct description, wlio took 
 ■with knowledge of the first purchase.^ This was so decided 
 where a suit in chancery was brought by the first purchaser 
 to cancel the second deed, although it had 2:)reviously been 
 decided by the same court that to constitute a vahd deed, 
 under an execution sale, there must be an advertisement of 
 the sale.^ 
 
 § 1095. Publication in Paper Where Posting Re- 
 quired. — So, where the statute provided for the publication 
 of notice of sale, by posting written or printed copies in 
 public places within the county, and the officer omitted 
 entirely to give the notice in the prescribed manner, but 
 publish e 1 it in a newspaper, it was held that this irregu- 
 larity would not vitiate a sale of either real or personal 
 property, made in pursuance of notice so published.^ 
 
 § 1096. Failure of Notice Will Not Ayoid Sale.— There 
 are other cases decided under statutes requiring the publi- 
 cation of notice of judicial sales, either by advertisement 
 in a newspaper for a specified time, or by a certain number 
 of insertions, or by posting copies of the notice in public 
 places, where it is held that this requirement of the statute 
 is merely directory, and a failure or omission to publish the 
 notice will merely have the effect to render the delinquent 
 officer liable to any one injured by his misprision, and will 
 not affect the title of a purchaser at the sale.^ 
 
 §1097. Strict Compliance Required. — Upon the other 
 hand, the cases decided under similar statutes are quite 
 numerous, where a strict compliance with the statutory pro- 
 
 1 Steward v. Pettigrew, 28 Ark., 373. See, also, Newton v. State 
 Bank, 14 Ark., 9; Eingold v. Patterson, 15 id., 209; Newton's Heirs v. 
 State Bank, 23 id., 19. 
 
 2 Hughes V. Watt, 36 Ark., 338. 
 
 3 Miner v. Natchez, 4 Sm. & Marsh., 603. 
 
 *Hudgens v. Jackson, 51 Ala., 514; Smith v. Randall, 6 Cal., 47; ante, 
 § 1086, note. See Reynolds v. Hams, 14 Cal., 667, where it was held 
 that a purchaser would only be protected where he had paid the pur- 
 chase money before notice.
 
 JUDICIAL SALES. 561 
 
 visions in respect to notice of sale is required, in order to 
 divest the title of the judgment debtor.^ 
 
 § 1098. Sale Void for Want of Proper Notice.— In 
 Mitchell V. Lipe,- the sale was held void under the statute 
 for the want of the notice prescribed, even where the judg- 
 ment debtor had requested the sheriff to make the levy, it 
 being held that such request did not amount to a waiver of 
 notice. And in Underwood v. Jeans,'' the publication act- 
 ually made was acknowledged to be even more ample than 
 the law required ; but the statutory manner of giving notice 
 being by posting one copy in each hundred of the county 
 ten days prior to the day of sale, a failure to prove the post- 
 ing of a copy of such notice in one of the hundreds for 
 the full time was held fatal to the validity of the sale. 
 
 § 1099. No Uniform Rule as to Notice of Sales.— The 
 statutes of the several states, governing judicial sales, though 
 similar, differ sufficiently to admit of different construction 
 by the courts. They are also more or less modified or 
 affected by other statutes, which facts render it exceedingly 
 difficult to deduce, from the authorities examined, anything 
 like a rule as to the effect of an entire want of notice, or 
 of insuflBcient notice of a sale made under judgment or 
 decree of court. 
 
 § 1100. Time of Publication. — Nevertheless, there are 
 certain questions affecting the giving of notice of sale by 
 publication, which are likely to arise in any case where it 
 becomes necessary to give judicial construction to the lan- 
 guage of a statute. The time for which the notice is pub- 
 lished is one of the most important of these, for, although 
 
 iTrot V. McGavock, 1 Yerg. (Tenn.), 469; Loyd v. Anglin, 7 id., 428; 
 Mitchell V. Lipe, 8 Yerg., 179; Underwood v. Jeans, 4 Harr. (Del.), 201 ; 
 Burton v. Wolfe, id., 221; Gernon v. Bestick, 15 La, An., 697; Russell 
 V. Dyer, 40 N. H., 173. See Blair v. Compton, 33 Mich., 414, where it is 
 laid down that a sale was void as to the excess in number of shares of 
 stock sold en masse, over what was stated to be the number at the time, 
 though a larger number had been advertised. 
 
 ^ Supra, § 1097. 
 
 3 Supra, § 1097.
 
 562 PUBLICATION OF NOTICES 
 
 defects in this particular will not, in every instance, prove 
 fatal to the title after payment of the purchase money and 
 delivery of the deed, it may be raised at a time when it 
 will serve to obstruct the perfecting of the purchaser's title, 
 by furnishing grounds for an objection to the approval of 
 the sale. 
 
 § 1 101. Six Weeks' Notice. — "Where the statute required 
 six weeki notice to be given, and under this provision desig- 
 nated the manner of giving such notice to be by fastening 
 up the same for six successive weeJcs, and by publication in 
 a newspaper once a weeTc for six successive weeks, the law 
 was held to be sufficiently complied with by posting the 
 notice as required, and by publication once in eacli week of 
 the six, although the full term did not elapse between the 
 first publication and the day of the sale.^ 
 
 § 1 102. Once a Week for Three Months. — So, where a 
 statute requires the notice to be published once a week for 
 three inontlis, ovfor three successive weeks, the law is satisfied 
 by an insertion in the paper once in each %veek, as time is 
 divided, regardless of the fact that a period longer or shorter 
 than seven days intervenes between successive issues of the 
 paper.- 
 
 §1103. What Constitutes Publication. — In Pratt v. 
 Tinkcom,* where the statute required six weeks' notice of a 
 sale, it was held that the first publication, being on the 1st 
 day of February, would not authorize a sale on the 10th 
 day of March, and that the defect could not be cured by 
 adjourning the sale and continuing the notice to the lYth. 
 It was also decided, in the same case, that papers sent to 
 the postoffice, some for transmission through the mails, and 
 others for local deliver}'^, are jpuhlished when deposited in 
 
 1 Olcott V. Robinson, 21 N. Y., 150, reversing the judgment of general 
 term, reported 20 Barb., 143. See Nalle v. Ftowick, 4 Eand., 585 ; EUiott 
 V. Eddins, 24 Ala., 509. 
 
 2 Rockendorflf v. Taylor's Lessee, 4 Pet., 349; Bachelor v. Bachelor, 
 1 Mass., 256; Pearson v. Bradley, 48 111., 250 j Cass v. Bellows, 31 N. H., 
 501. 
 
 3 21 Minn., 142.
 
 JUDICIAL SALES. 563 
 
 the postofRce, regardless of the dates borne by the papers. 
 Consequently, where five-sixths of the edition, dated the 
 '25th, were issued on the 2J},th, the publication would not be 
 considered as of the date when but one-sixth of the papers 
 were issued. 
 
 § 1104. Posting in Public Places. — In Sowards v. Pritch- 
 ett,' the important matter of inquiry was as to what was 
 a sufficient comjiliance with a statute requiring notice of the 
 sale to be posted at five public places in the neighborhood. 
 Tavo copies of the notice were posted at school-houses, but 
 it did not appear that they were occupied at the time. The 
 others were posted near three different roads, but one of 
 which was mentioned as a public road, leaving the inference 
 that the other two were private thoroughfares. Six persons 
 living in the vicinity of the land sold had never seen any of 
 the notices, none of which were posted about the court- 
 house, nor was publication made in the county newspaper. 
 But few persons attended the sale, and the property brought 
 about two-thirds of its value. Under these circumstances, 
 the notice was held insufficient, although, in the same case, 
 it was decided that mere shortness of the time of publication, 
 where no period was fixed by the decree, when taken alone, 
 would not warrant setting aside the sale, but might be con- 
 sidered in connection with the other irregularities and the 
 inadequacy of the price for which the land was sold.- 
 
 137IU., 517. 
 
 2 See §§ 1128, 1129, 1130, for sales made by orders of probate court 
 under certain circumstances.
 
 564 PUBLICATION OF NOTICES. 
 
 III. NON-JUDIOIAL InVOLTJNTAUT SaLES. 
 
 § 1105. Strict Compliance with Statute Required. 
 
 1106. Tax Sales. 
 
 1107. Publication an Official Act. 
 
 1108. When State Printer Designated. 
 
 1109. Should State the Amount Due. 
 
 1110. Should Give Name of Tax Debtor. 
 
 1111. Time Fixed by Statute to be Closely Followed. 
 
 1112. Sale Held Void After Fifty Years. 
 
 1113. Construction as to Time. 
 
 1114. Three Successive Publications for Three Months. 
 
 1115. During Three Successive Weeks. 
 
 1116. Should Commence After Tax Becomes Due. 
 
 1117. Form and Sufficiency. 
 
 1118. When Form Prescribed by Statute. 
 
 1119. Proof of Publication. ^ 
 
 1120. Statutory Mode of Proof Exclusive. 
 
 1121. Requu'ed Certificate Must be Certain in Statement. 
 
 § 1105. Strict Compliance with Statute Required.— 
 
 Involuntary sales, made in pursuance of a statutory power, 
 without a judgment or decree of court, are less favorably 
 considered, and the prerequisites to the exercise of the 
 power are more rigidly exacted, than where there has been 
 an attempt to give the property owner his day in court, and 
 where he has at least had notice of the institution of pro- 
 ceedings which might eventuate in the sale of his property. 
 Titles acquired under non-judicial involuntary sales are 
 aided by no presumptions in their favor, but must depend 
 for their validity upon a strict compliance with the statutes 
 by which they are authorized. And no statutory require- 
 ment is regarded as of more importance than that in relation 
 to notice of sale} 
 
 § 1106. Tax Sales. — The greater number of sales of this 
 kind, which have been the subject of judicial controversy, in 
 respect to the matter of notice, are such as are made to 
 satisfy the demands of the state or municipality for unpaid 
 
 1 Seeposf, § 11§3, Mortgagee's Sales.
 
 NON-JUDICIAL INVOLUNTARY SALES. 565 
 
 taxes on real property. The manner of giving notice of 
 such sales, both to tax debtors and to the public, is by adver- 
 tisement in newspapers. Where this is the mode designated, 
 the language of the statute is mandatory upon the officer 
 whose duty it is to make the sale, the vaUdity of which 
 depends upon strict compliance.^ 
 
 § 1107. Publication an Official Act. — The publication 
 of the notice is an official act, and the advertisement must 
 therefore be signed by the officer designated by statute to 
 give the notice. It is not enough that he is the officer elect, 
 who, after the insertion of the advertisement in the news- 
 paper, is duly qualified. Such subsequent qualification will 
 not take effect by relation, and clothe the act, performed 
 before the officer had been thereto empowered, with an 
 official character, and so render valid and binding a sale 
 made in pursuance of such published notice.^ 
 
 § 1108. When State Printer Designated.— Where the 
 statute prescribed that the notice of sale should be advertised 
 in a paper published by the state printer, but after the inser- 
 tion of the notice in such official paper, and before the 
 expiration of the time prescribed for the publication, the 
 publisher of the paper ceased to be the state printer, such 
 publication was held insufficient, and a sale in pursuance 
 thereof, utterly void.' 
 
 §1109. Should State the Amount Due. — The notice 
 as published should contain a correct statement of the 
 amount due,* the true object of the tax,^ an accurate de- 
 scription of the property,® and the name of the tax debtor.'^ 
 
 1 WUliamsu. Peyton, 4 Wheat., 77; Early v. Doe, 16 How., 610. 
 2Langdont;. Poor, 20 Vt., 13; Speai- v. Ditty, 9 Vt., 283; Broughton 
 V. Journeay, 51 Pa. St., 31. 
 SBussey v. Leavitt, 12 Me., 378; Pope v. Headen, 5 Ala., 433. 
 
 4 Eastman v. Little, 5 N. H., 290; 4 Hill, 92. 
 
 5 Pierce v. Richardson, 37 N. H., 306; Langdon v. Poor, supra. 
 
 6 Patrick v. Davis, 15 Ark., 363; Tallman r. White, 2 N. Y., 66. 
 
 7 Washington v. Pratt, 8 Wheat., 681 ; Pierce v. Richardson, 37 N. H., 
 306; Alvord v. Collin, 20 Pick., 418; Miller v. Graham, 17 Ohio St., 1.
 
 566 PUBLICATION OF NOTICES. 
 
 § 1 1 10. Should Give Name of Tax Debtor.— The strict- 
 ness of the rule laid down with respect to a statement of the 
 name of the tax dehtor, and the amount of tJie tax, are both 
 fairly illustrated in Eastman v. Little.^ There the form of 
 notice followed was one prescribed by the secretary of the 
 treasury, who was authorized by statute to estabhsh the 
 necessary regulations for cariying the revenue laws into 
 effect, yet for a failure to state in the advertisement the 
 name of the tax debtor, and the amount due on each piece 
 of land separately, the sale was declared to be void.^ 
 
 § 1111. Time Fixed by Statute to be Closely Followed. 
 Howsoever arbitrarily the time for the commencement and 
 continuation of the publication may be fixed by statute, its 
 provisions must be closely followed in order to divest the 
 title of the tax debtor. Accordingly, where the advertise- 
 ment Avas changed after the expiration of a part of the pre- 
 scribed period of publication, and a new day of sale fixed, 
 even with the consent of the tax debtor, the sale was de- 
 clared void.'' Nevertheless, where a certain number of days 
 are designated, the last publication to be so many days be- 
 fore the sale, the fact that the advertisement was published 
 after this day would not affect the validity of the sale to 
 defeat it for non-compliance with the statute. Neither 
 would it operate to cure a failure to make the publication 
 early enough to give it the full time prescribed by statute, 
 between the first and the last day. 
 
 § 1112. Sale Held Yoid After Fifty Years.— In Farrar 
 V. Eastman,^ decided in 1833, with reference to the vahdity 
 of a sale which took place in 1T80, under the provincial act 
 of 26 Geo. II., requiring forty days' notice, the tax for which 
 the land was sold appeared to have been voted only thir- 
 teen days before the date of the tax deed. The court, with 
 
 1 Supra, § 1109. 
 
 2 See, also, Shimmin v. Inman, 26 Me., 228 ; Sargent v. Bean, 7 Gray, 
 125. 
 
 "Scales V. Alvis, 12 Ala., 617. 
 no Me., 191.
 
 NON-JUDICIAL INYOLUNTAET SALES. 567 
 
 every inclination in the direction of sustaining a transac- 
 tion of so many years' standing, held the sale void, as it 
 was impossible, under the circumstances, that forty days' 
 notice could have been o-iven. 
 
 § 1113. Construction as to Time.— Where the time pre- 
 scribed for the publication is stated loosely as so many days, 
 weeks or months, without specifying how long before the 
 day of sale such publication shall be completed, it will be 
 understood to mean a continuous publication immediately 
 preceding the sale. As, for example, where the statute re- 
 quired three m.onihs^ notice, the court construed this to 
 mean the three successive months next preceding the sale- 
 And the advertisement being pubhshed during the month 
 of December, omitting January, but was afterwards inserted 
 during the months of February and March, this was held 
 insufficient to authorize a sale in April.^ 
 
 § 1114. Three Successive Publications for Three 
 Months. — "Three successive publications in a newspaper, 
 three months prior to the sale," was held to require that the 
 last insertion should be three months prior to the day of 
 sale.^ 
 
 § 1115. During Three Successive Weeks. — Where the 
 notice was required to be published '' during three succes- 
 sive weeks," this was held to mean three full weeks, or 
 twenty-one days from the first publication.^ 
 
 § 1 116. Should Commence After Tax Becomes Due. — 
 A further important requisite as to time is, that the pubh- 
 cation should commence after the tax becomes due ; and 
 when the statute requires a return to be made of a list of 
 delinquents, and the intervention of a certain time between 
 such return and the publication of the notice, the statutory 
 period must have elapsed, in order to render the publication 
 sufficient to support a title acquired under the sale.* 
 
 1 Delogney v. Smith, 3 La., 418. 
 2Bussey v. Leavitt, 12 Me., 378. 
 
 3 Francis v. Non-is, 2 IVIiles, 150; Pennell v. Monroe, 30 Ark., 661. 
 
 4 Rockendorff v. Taylor, 4 Pet., 849; Early v. Doe, 16 How., 610.
 
 568 PUBLICATION OF NOTICES. 
 
 § 1117. Form and Sufficiency. — The form of the notice 
 of sale is generally prescribed by statute ; but where there 
 is no such statutory form, the language of the published 
 notice should be sufficiently clear and unequivocal to con- 
 vey the necessary information to both tax debtor and the 
 pubhc. If it is so expressed as to contain all the state- 
 ments required by statute, it will be sufficiently formal, 
 however inartificially it may be drawn.^ 
 
 § 1118. When Form Prescribed by Statute. — It has 
 been laid down by a very able text writer, that where a cer- 
 tain form of notice is prescribed it must be " strictly, if not 
 literaUy , followed." ^ This statement of the doctrine is ques- 
 tioned by Judge Cooley, wiio denies that the law ever re- 
 quires a literal adhesion to forms.'' The conclusion reached 
 by the last mentioned author seems to be supported by 
 much the better reason, 
 
 § 1119. Proof of Publication. — The proof of publica- 
 tion ordinarily required is the affidavit of the printer or pub- 
 lisher of the newspaper containing the advertisement. If 
 upon its face it appears insufficient, either in point of time 
 of publication, or contents of the notice, parol proof will, in 
 general, be held inadmissible for the purpose of supplying 
 the deficienc}^ or explaining the omission."* 
 
 § 1120. Statutory Mode of Proof Exclusive. — Sales of 
 this kind, being in the nature of forfeitures, are not favored 
 by the courts, in the proof of compliance with the statute. 
 As where the law required the delinquent list and the no- 
 tice to be recorded for the purpose of perpetuating the evi- 
 dence of the time of publication, this means of showing a 
 compliance with the statute was held to be exclusive of all 
 others, as against those claiming under the tax sale, who 
 
 1 Chandlers. Spear. 23 Vt., 388; Hobbs v. Clements, 32 Me., 67. 
 
 2 Blackwell on Tax Titles, 223. 
 
 3 Cooley on Taxation, 337, n. 2. 
 
 4 Finch V. Pinckard, 5 111., 69; Nelson v. Pierce, 6 N. H., 194; People 
 V. Highway Com'rs, 14 JkDch., 528; Love joy v. Lunt, 48 Me., 377; Sex- 
 ton V. Rhames, 13 Wis., 99.
 
 NON-JUDIOIAL INVOLUNTAET SALES. 569 
 
 would not be permitted to prove by matters dehors that 
 the notice had been published for the statutory time ; al- 
 though one claiming adversely to the tax title would not be 
 so concluded.^ 
 
 § 1121. Required Certificate Must be Certain in State- 
 ment. — An oiRcial certificate which the law designates as 
 the proper means of authenticating the publication of a no- 
 tice, must be unequivocal and certain in its statements. As, 
 where the county auditor was required to publish notices 
 by posting them in certain localities, and his certificate 
 stated that he had delivered copies of the notices to another 
 oflBcer, who, he believed, had posted them in the places re- 
 quired by law, the certificate was held fatally defective, and 
 its omissions could not be supplied by parol evidence.- And 
 where the treasurer failed to authenticate a copy of the 
 printed advertisement, as required by law, this omission, it 
 was held, rendered the sale void.^ 
 
 1 Kellogg V. McLaughlin, 8 Oliio, 114. 
 
 2 Doe V. Sweetser, 2 Ind., 649. 
 
 3 Flint V. Sawyer, 30 Me., 226; Hill v. Mason, 38 id., 461.
 
 570 PUBLICATION OF NOTICES. 
 
 TV. Miscellaneous Pkoceedings. 
 
 § 1123. General Remarks. 
 
 1123. Contract for Public Improvements. 
 
 1124. Special Assessments. 
 
 1125. Notice of Intention to Order Improvements. 
 
 1126. Notice of Opening Streets. 
 
 1127. Eminent Domain. 
 
 1128. Sales by Guardians and Curators. 
 
 1129. Executor's Sale. 
 
 1130. Sold for Paying Debts of Deceased. 
 
 1131. Executor's Notice — How Addi-essed. 
 
 1132. Meeting to Divide Township. 
 
 1133. Mortgagee's Sales. 
 
 1133a. Notice to Redeem from Tax Sale. 
 
 1134. Matters Noticed Elsewhere. 
 
 § 1122. General Remarks. — There are proceedings by 
 which the proprietory rights of individuals are affected, 
 notice of which may be given by publication in a news- 
 paper or by posting copies in certain designated localities. 
 But in order to give such publication the effect of actual 
 notice to the party whose rights are affected by the pro- 
 ceeding, regardless of whether he reads the advertisement 
 or not, it is necessary that this mode of notification should 
 be authorized by statute, and that the statute by which it is 
 authorized, being in derogation of common law, should be 
 strictly construed and closely pursued. When the proceed- 
 ing closely resembles one of a judicial character, in the 
 sense that there is a hearing and adjudication before a judi- 
 cial tribunal, the strictness of construction seems to be some- 
 what relaxed for reasons heretofore stated ; ^ but when the 
 ultimate purpose of the proceeding is to divest the title of 
 the property owner by forfeihire, without giving him an 
 opportunity to be heard in defense of his rights, the strictest 
 observance of statutory requirements is exacted, in order to 
 render such notice effectual. 
 
 See ante, Part II.
 
 MISCELLANEOTJS PEOCEEDINGS. 571 
 
 § 1123. Contract for Public Improyements. — Among 
 tke matters which may be constructively brought to the 
 knowledge of those whose rights are to be affected, is 
 the letting of contracts for the grading or other improve- 
 ment of streets, alleys and other public thoroughfares, 
 where the cost of such improvement is to be made a charge 
 upon adjacent property. These charges, though a species 
 of taxation, are not generally so denominated, but ar^ 
 known by the distinguishing appellation of "special assess- 
 ments," ^ and where notice prior to such assessment is re- 
 quired to be published, the assessment wiU only be valid 
 when there has been a substantial compliance with the stat- 
 ute in this and every other important particular.- 
 
 § 1124. Special Assessments. — The rule governing no- 
 tice of involuntary sales, made without the judgment of a 
 court, will generally be found applicable to special assess- 
 ments.^ 
 
 § 1125. Notice of Intention to Order Improvements. — 
 In Haskell v. Bartlett,* under a statute requiring publication 
 of a notice of intention to order improvements upon streets, 
 in the paper having the city and county printing, for ten 
 days successively, excepting Sunday ; ^ and where there was 
 another statute in force requiring the city printing to be in 
 a paper published within the city," the court had occasion in 
 construing the two statutes to define the word " published.'' 
 The paper in which the notice was printed, published daily, 
 both morning and evening editions, — the morning edition 
 for circulation in the city, and the evening edition for the 
 country. The notice appeared in the morning edition ; but 
 for two days of the ten this edition was not printed, and it 
 
 1 Emery v. Gas Co., 28 Cal., 345; Argenti v. San Francisco, 16 Cal., 
 255 ; People v. Whyler, 41 Cal., 351. City paying for opening streets, 20 
 La. An., 497; Garrett v. St. Louis, 25 Mo., 505. 
 
 2 2 Dillon, Munic. Corp., § 605, and cases cited. 
 
 3 Ante, part III of tliis chapter. 
 434 Cal., 281. 
 
 5 Cal. Stats., 1862, p. 403, § 25. 
 
 6 Cal. Stats., 1856, pp. 163-4, §§ 68-9.
 
 572 PUBLICATION OF K0TICE8. 
 
 did Dot appear that the evening edition containing the no- 
 tice for these two days was circulated in the city. The pub- 
 lication was held insufficient, as the paper, to he published 
 within the city, should have been circulated as well as 
 printed there. 
 
 § 1126. Notice of Opening Streets. — Where the statute 
 required notice of the opening of streets to be published in 
 two papers in the city, in order to afford owners of lots an 
 opportunity to make application for damages, there being 
 but one paper published in the city, it was held that the in- 
 sertion of the notice in that for the required time, together 
 with personal notice to the owner of the lot in question, was 
 a sufficient compliance with the statute to enable the city to 
 recover the assessments.^ It would probably have been held 
 the same way had the statute requiring notice had any other 
 object than the one declared. It is apparent that in this 
 case there was a sufficient excuse for not pursuing the letter 
 of the statute strictly, when it was followed in its spirit, as 
 closely as possible under the circumstances.^ 
 
 § 1127. Eminent Domain. — Where the state or nation, 
 or one acting under powers delegated by proper authority, 
 in the exercise of the right of eminent domain undertakes to 
 condemn private property to public use, it must not only be 
 done in strict subordination to the constitutional provision 
 requiring ^ust compensation to be paid to the private owner, 
 but the power of condemnation must be exercised in con- 
 formity to the statute by which it is authorized. Proceed- 
 ings for this purpose vary considerably in different states, 
 being to a greater or less degree judicial in their character. 
 But in aU, notice in some form or other, to private owners, is 
 an essential preliminary. Where the owner of the land to 
 be taken is a non-resident of the state in which the same is 
 situated, he is generally notified by publication. In cases 
 of this kind the same strict construction, and close following 
 
 1 Darlington v. Common wealth, 41 Pa. St., 68. 
 
 2 Wood V. Blanchard, 19 Ei., 38.
 
 MISCELLANEOUS PROCEEDINGS. 5Y3 
 
 of the statute, is required, as in case of involuntary sales 
 without judgment or decree ; ^ but a failure to give notice, 
 as required by statute, could not be taken advantage of, 
 when all the parties in interest voluntarily appeared at the 
 time and place for which the notice should have been given.'- 
 
 § 1128. Sales by Guardians and Curators. — There are 
 other proceedings which have for their ultimate object the 
 sale of property by those acting in a fiduciary capacity, as 
 guardians of infants or insane persons, and administrators 
 or executors of estates of decedents. An order of sale is 
 requh'ed in such cases, and is in general only granted after 
 a hearing, of which there must be notice given by publica- 
 tion or otherwise. This notice, when by publication, being 
 of a proceeding somewhat in the nature of an adjudication, 
 is governed to a considerable extent by the rules applicable 
 to the service of original process in the same manner. It 
 has, nevertheless, been held that the title of a purchaser at 
 such sale would not be affected by a failure to publish the 
 notice of application for "license to sell," for full four 
 weeks, as prescribed by statute." 
 
 §1129. Executor's Sale. — Where the statute required 
 notice of executor's sale to be by posting copies in three 
 public places in the county, "or by publication in a news- 
 paper, if the judge should so order," there being no evi- 
 dence of the posting of the copies as required by statute, 
 and no order for the publication in a newspaper, proof of 
 the publication having been made in a newspaper Avas held 
 insufficient to warrant the sale.^ 
 
 §1130. Sold for Paying Debts of Deceased.— There 
 must also be strict compliance with the statutes authorizing 
 the sale of real estate of deceased persons, by executors or 
 
 iHarbeck v. Toledo, 11 Ohio St., 219; Darlington v. Commonwealth, 
 41 Pa. St., 68; Kidder v. Peoria, 29 111., 77; Specht v. Detroit, 20 Mich., 
 168; Baltimore v. Bouldin, 23 Md., 328. 
 
 2 East Saginaw & St. Clair R. R. Co. v. Benham, 28 Mich., 459. 
 
 3 Woods V. Monroe, 17 Mich., 238. 
 
 <HaUeck v. Moss, 17 Cal., 339; Haynes v. Meeks, 10 id., 110.
 
 574: PUBLICATION OF NOTICES. 
 
 administrators, for the purpose of paying the debts of de- 
 ceased, or otherwise fulhlling the duties of administration, 
 Avith respect to the time for which notice is required to be 
 published, to all persons interested to appear and show 
 cause, etc., and such time, when prescribed by statute, can- 
 not be abbreviated by order of the court so as to authorize a 
 sale.^ 
 
 § 1131. Executor's Notice — How Addressed. — Pub- 
 lished notices cannot be addressed by executors and adminis- 
 trators, specifically by name to all those who are to be 
 affected, for the reason that they are so numerous as to 
 render such a course impracticable, even where the personal 
 representative was cognizant of all their names. It has 
 accordingly been held that a notice published by an ex- 
 ecutor, addressed " to the heirs-at-law, next of kin, and all 
 other persons interested in the estate of," etc., was sufficient.^ 
 
 § 1132. Meeting to Divide Township. — Where notice of 
 the time and place of meeting to divide the townships was 
 required by statute to be published three weeks hefore the 
 time of meeting, it was held that three publications, made 
 within the three weeks next preceding the time of meeting, 
 was not a comphance with the statute, as the first publica- 
 tion was intended to be full three weeks prior to the meet- 
 ing.' But where " sixty days' notice " was required to be 
 published of calls for instahnents of stock in a corporation, 
 one insertion sixty days prior to the day fixed was held suf- 
 ficient.* 
 
 § 1133. Mortgagee's Sales. — There are also sales made 
 in pursuance of published notice where the pubhcation is 
 made according to the terms of a contract between the par- 
 ties interested, as a mortgage with power of sale without 
 judicial foreclosure or deed of trust in the nature of a mort- 
 
 iTownsend v. Tallant, 33 Cal., 45; Corwin u. Merrett, 3 Barb., 341; 
 Havens v. Sherman, 42 Barb., 636; Gibson v. Roll, 30 111., 173. 
 2 Wells V. Child, 12 AUen, 330. 
 ^In re North Whitehall, 47 Pa. St., 156, 
 4 Andrews v. O. & M. R. R. Co., 14 Ind., 169^.
 
 MISCELLAIJEOUS PKOCEEDIXGS. 575 
 
 gage with power of sale. The time and place of sale, as 
 well as the time for which the notice shall be pubhshed, 
 being fully provided for in the instrument, it is only requi- 
 site that the provisions of the contract shall be complied 
 with, in order to render the sale valid and binding.^ 
 
 §1134:. Matters Noticed Elsewhere. — There are other 
 matters which may be brought to the notice of parties by 
 publication in a newspaper, by which their rights or liabili- 
 ties may be enlarged or restricted with reference to their 
 transactions with those giving the notice ; as a dissolution 
 of partnership, regulations by common carriers, restricting 
 their liabilities as such, and the like ; but these notices, when 
 published, must be satisfactorily brought home to the par- 
 ties to be affected, by other evidence than the mere fact of 
 publication. For this reason they are not treated here, but 
 are noticed elsewhere.- 
 
 1 Pratt V. Tinckom, 21 Minn., 143. See Jones on Mort., § 1827 et seq.; 
 § 1821 et seq. 
 - See ante, parts I and II.
 
 CHAPTEH XII. 
 
 PRACTICE AND PLEADING. 
 
 I. Original Process. 
 II. Notice of Trial. 
 
 III. Notice of Motions and Other Interlocutory Proceedings 
 rv. Notice of Appeal. 
 V. Notice of Taking Depositions. 
 VI. Notice to Produce Books and Papers. 
 Vn. Service. 
 vni. The Return. 
 IX. Pleading. 
 
 I. Original Process, 
 
 § 1135. General Nature of Modern Summons. 
 
 1136. Importance of Due Service. 
 
 1187. When Personal Notice Required. 
 
 1138. Rule Applies to AU Judicial or Quasi Judicial Proceedings. 
 
 1139. Assessment of Damages to Property. 
 
 1140. Decree in Chancery — Summary Proceedings. 
 
 1141. Judgment Against Sureties. 
 
 1142. Divorce and Alimony. 
 
 1143. Justice of Peace. 
 
 1144. Actions In Rem. 
 
 1145. Annulling Certificate of Purchase. 
 
 1146. Knowledge WiU Not Excuse Notice. 
 
 1147. Must be Written or Printed. 
 
 1148. Must Conform to Statute. 
 
 1149. Should State Time and Place. 
 
 1150. Where But One Cause of Action Described. 
 
 1151. Scire Facias. 
 
 1152. Should Contain the Name of Defendant. 
 
 1153. Omission of Name Held Immaterial, 
 
 1154. Venue. 
 
 1155. Immaterial Variations and Omissions. 
 
 1156. Requirements of Different States as to Certainty of Summons. 
 
 1157. The " Purpose " to be Stated. 
 
 1158. Infant Defendants. 
 
 1159. When Returnable. 
 
 1160. Substantial and Technical Defects, 
 
 1161. Jurisdiction.
 
 ORIGINAL PKOCESS. Oi i 
 
 § 1135. General Nature of Modern Summons. — Wluit- 
 ever be the wording or the technical name of the instrument 
 by which a person is advised of the pendency of a civil suit 
 against him; whether it be mandator}^ m its terms to the 
 officer charged with its service, bidding him to smiimon the 
 party to he and appea?', etc., or is couched in language merely 
 suitable for the conveyance of information to the defend- 
 ant, advising liim that unless he appear^ etc., judgment will 
 be taken against him, it is still, in effect, a notice, and nothing 
 more, though it may be styled a writ. It no longer serves 
 the purpose of the ancient original writ further than to 
 inform the defendant of the pendency of the action, and 
 afford him an opportunity to appear and defend. In some 
 of the states the original process by which the court obtains 
 jurisdiction of the defendant is no longer styled a writ of 
 summons, but is called simply a notice.^ And where this 
 change has been adopted, the notice is found to subserve all 
 the purposes for which a writ will be found necessary, when 
 it is not desired to place the defendant under personal 
 restraint. 
 
 § 1136. Importance of Due Service. — This process, be- 
 ing first in order, is also of primary importance in the 
 institution of a suit either at law or in equity ; for its due 
 service, actually or constructively, is necessary to give the 
 court jurisdiction either of the defendant, in personal actions, 
 or of the thing, in actions in rem.- 
 
 § 1137. When Personal Notice Required.— Where the 
 object of the action is to obtain a judgment against the de- 
 fendant upon which an execution may issue to be levied 
 generally of his goods and chattels, or of his property, per- 
 sonal, real and mixed, it is necessary at common law that 
 
 1 Code of Iowa (1873), § 2599, p. 441. 
 
 2 The Globe, 2 Blatch. Ct. Ct., 427; Pagett v. Curtis, 15 La. An., 451; 
 Pomeroy v. Betts, 31 Mo., 419; Kehler v. Jack. Manuf. Co., 55 Ga., 039. 
 But where the court has found that proper notice was given, the ques- 
 tion cannot be raised in another proceeding. Estate of Palomares, 63 
 Cal., 402. 
 
 37
 
 578 PKACTICE AND PLEADING. 
 
 there should be a pei^onal notice, citation, summons or sub- 
 poena, or that tlie defendant should voluntarily appear to 
 the action. In cases of this character, such notice or appear- 
 ance is indispensable to the jurisdiction of the court.^ 
 
 § 1138. Rule Applies to All Judicial or Quasi Judi- 
 cial Proceedings. — This is true of every proceeding of a 
 judicial nature, to which there are two or more parties, ex- 
 cept where there are statutory provisions authorizing proc- 
 ess other than personal. AU the parties are entitled to a 
 hearing before judgment can be legally pronounced against 
 them. Of this they could have no assurance, if they were 
 not notified of the pendency of the proceedings against 
 them. Without such notice, then, as is imparted by the 
 original process issuing out of a court or other judicial tri- 
 bunal, any judgment rendered against one or more of the 
 parties would not only be erroneous, but, in general, abso- 
 lutely void.' 
 
 §1139. Assessment of Damages to Property.^ — So, 
 where a commissioner of highways instituted proceedings 
 under the provisions of a statute of the state of iSI"ew York, 
 for the re-assessment of damages to the property of defend- 
 ant, by reason of the necessary improvement of a public 
 thoroughfare, it was held that the parties whose proprietory 
 rights were affected by the proceeding w^ere entitled to be 
 heard, and hence were entitled to due notice of such pro- 
 ceeding." 
 
 1 Gray v. Hawes, 8 Cal., 562; Cooper v. Smith, 25 Iowa, 2G9; Wilson tJ. 
 Johnson, 30 Tex., 499. 
 
 2 Judah V. Stephenson, 10 Iowa, 493; IMadden v. Fielding, 19 La. An., 
 505 ; MitcheU v. Gray, 18 Ind., 123: Klemm v. DeAves, 28 111., 817 ; Goudy 
 V. Hall, 30 111., 109; Penobscot R. R. Co. v. Weeks, 52 Me., 456; Brace 
 V. Cloutman, 45 N. H.,37; Oswald v. Grey, 29 Eng. L. &Eq., 85; Peters w. 
 Newkirk, 6 Cow., 103; Copeland v. Directors of Mining Co., 33 Mich., 2 
 Mitchell V. Runkle, 25 Tex. Supp., 132; Sunpson v. Knight, 12 Fla., 144 
 Falconer v. Montgomery, 4 Dall., 232; CroweU v. Davis, 12 Met., 293 
 Ballitt V. Musgrave, 3 Carr. & Kir., 31 ; Craig v. Hawkins, Hardin (Ky.), 
 46; Cobbv. Wood, 32 Me., 455; Curtis v. Sacramento, 64 Cal., 102. 
 
 ^^ People V. Tallman, 36 Barb., 222; Cox v. Mathews, 17 Ind., 367; The 
 R. R. Tax Case, 8 Saw., 288, A policeman against whom cliarges are
 
 ORIGINAL PROCESS. 579 
 
 § 1140. Decree in Chancery — Summary Proceedings. 
 
 So, also, has it been uniformly held that a decree in chan- 
 cery could not be rendered against a party defendant who 
 had not been cited or notified to appear.^ And whenever a 
 person's rights are to be affected by a summary proceeding 
 or motion in court, he must be notified, in order that he 
 may appear and protect his interests.- But there are cer- 
 tain circumstances where a preliminary injunction may be 
 obtained without notice of the application.'' 
 
 § 1141. Judgment Against Sureties. — So where it was 
 sought to obtain judgment against the sureties on a forth- 
 coming bond, it was held that, in the absence of notice to 
 such sureties, any judgment obtained against them would 
 be an absolute nullity, for the want of jurisdiction, legally 
 obtained, of the parties against whom the judgment was 
 rendered.^ 
 
 § 1 1 42. Divorce and Alimony. — It has also been held that, 
 in an action for divorce, or for alimony incident to a decree 
 of divorce, a personal judgment for such alimony could not 
 be had against a citizen of another state without first 
 obtaining jurisdiction of such non-resident party by the 
 service of process upon him personally, or according to a 
 mode recognized as the legal equivalent of such personal 
 service, within the territorial jurisdiction of the court ren- 
 dering the judgment. Constructive notice, by publication of 
 summons, will not be sufficient, even where the decree of 
 divorce itself may be rendered upon such substituted process.' . 
 
 § 1143. Justice of Peace.— Nothing need be said in 
 support of a rule so salutary. Every variation or modifica- 
 
 Ijreferred by any one except a commissioner is entitled to notice. 
 McDermott v. Board of Police, 25 Barb., 635. 
 
 1 Morris r. Bailey, 15 La. An., 2; Elee v. Wait, 28 HI., 70. 
 
 2Greorge v. Sliddough, 62 Mo., 549. 
 
 3 Eureka, etc., Co. v. Superior Court, etc., 5 West Coast Rep., 179. 
 
 < Roach V. Barnes, 33 Mo., 319. But sureties are not always entitled 
 to notice before judgment may be entered against them. Farmer v. 
 Stewart, 2 N. H., 97. 
 
 5 Beard v. Beard, 21 Ind., 321.
 
 580 PRACTICE AND PLEADING. 
 
 tion of its requirements needs justification upon tlie strongest 
 grounds of necessity. Its application must be alike to all 
 proceedings of a judicial character, whether before courts 
 of general or limited jurisdiction. It is equally necessary 
 to an impartial administration of justice in courts of record 
 and in the trial of causes before justices of the peace.^ 
 
 §1144. Actions in Rem. — The necessity of personal 
 notice to the defendant is not confined to cases where a 
 personal judgment is sought. Where the property of de- 
 fendant has been attached, except in those cases where the 
 statute provides for notice by publication, the defendant is 
 entitled to personal notice, not only of the pendency of the 
 suit, but of the attachment of his property. The object of 
 the notice is to enable him to appear and plead, as well to 
 the affidavit of attachment as to the merits of the claim or 
 demand, and judgment should not be given against him 
 without satisfactory proof of such notice.- 
 
 §1145. Annulling Certificate of Purchase. — So, in a 
 suit under a statute of the state of California for the pur- 
 pose of annulling a certificate of purchase of land sold by 
 the state upon a credit, and the purchaser had failed to 
 meet the deferred payments, though the object was not to 
 obtam a personal judgment against the delinquent pur- 
 chaser, still, as the statute had provided no substituted 
 service in an action of that sort, it was held that personal 
 process was necessary to give the defendant his day in 
 court.' 
 
 § 1146. Knowledge Will Not Excuse Notice. — The mere 
 fact, however, that the defendant has been personally noti- 
 fied of a suit brought against him, will not always be a 
 sufficient service of process upon which to predicate a judg- 
 ment. Mere cognizance of the existence of the action is 
 
 iCase V. Hannahs, 2 Kan., 490; Johnson v. Baker, 38 HI., 98; Mitchell 
 V. Eunkle, 25 Tex. Supp., 132; People v. Bacon, 18 Llich., 247; Alex- 
 ander V. Quigley's Ex'rs, 2 Duv. (Ky.), 399. 
 
 2 Simpson v. Knight, 12 Fla., 144. 
 
 3 People V. Herman, 45 Cal., 689.
 
 ORIGINAL PEOCESS. 581 
 
 not a notice, in the legal sense, by which a party may be 
 subjected to the jurisdiction of a court so as to give validity 
 to a judgment rendered against him.^ 
 
 § 1147. Must be Written or Printed. — Unless the formal 
 requisites of the original process are expre^^ly waived by 
 the defendant, such process is universally required to be 
 written or printed. Mere verbal notification has never been 
 held sufficient to require the appearance of the party sum- 
 moned to answer either civilly or criminally .- 
 
 § 1148. Must Conform to Statute. — As to what the 
 written or printed notice should contain, it may be stated 
 generally, as such matters are regulated by statute, that 
 whether the process be for actual, personal service, or for 
 constructive service by pubhcation, it must conform substan- 
 tially to the requirements of the statute by which it is 
 authorized.^ 
 
 § 1149. Should State Time and Place. — It is universally 
 requisite, however, that the original process should state the 
 time and place of trial with substantial correctness, and with 
 reasonable certainty. It was accordingly held that where 
 judgment was rendered upon an original notice, which did 
 not state the time and place when and where defendant was 
 required to appear and defend it, was not binding upon such 
 defendant, and could be successfully attacked in a collateral 
 proceeding.'' 
 
 § 1150. Where But One Cause of Action Described. — 
 It has also been held, where a summons was issued and 
 served upon a party requiring him to answer to fourteen 
 different suits, upon as many promissory notes, and the 
 process described with reasonable certainty one of such 
 notes, and mentioned the others as " thirteen similar notes," 
 that the process was good only as to the one note described, 
 
 1 Peabody v. Phelps, 9 Cal., 213. 
 
 21 Tidd's Prac., 109 et seq.; Whittaker's N. Y. Prac., 93. 
 
 3Karr v. Karr, 19 N. J. Eq., 427. 
 
 < Kitsmiller v. Kitchen, 24 Iowa, 163.
 
 582 PRACTICE AND PLEADING. 
 
 and that judgment on the thirteen others would be set aside 
 on a motion alleging the want of a legal summons.* 
 
 §1151. Scire Facias. — A judgment on a scire facias^ 
 served without the citation and copy of the petition re- 
 quired by statute, on the administrator of a deceased de- 
 fendant, who was not served with process in his life-time, 
 was held to be erroneous.^ 
 
 § 1152. Sliould Contain the Name of Defendant. — A 
 further essential requisite to a good and sufficient summons 
 is, that it should contain the name of the party served. Ac- 
 cordingly, it was held, where a summons against several 
 joint defendants did not contain the names of all those 
 served, it was fatally defective.^ 
 
 § 1153. Omission of Name Held Immaterial. — On the 
 other hand, it was held in another case, under a different 
 statute, that the omission to insert in a summons, served 
 upon one of several defendants, the name of the co-defend- 
 ants first served, except as the same was by the clerk in- 
 dorsed on the process, would not render such summons void, 
 nor even furnish grounds for a motion to set the same aside 
 at the instance of the defendant last served.* This was 
 under a statute authorizing the issuance of " a branch sum- 
 mons," to be served without the county in which the forum 
 was located, and within which service was had upon the 
 co-defendant first served. The clerk was required to in- 
 dorse the branch summons so as to show its connection with 
 the original, and, in doing so, in this instance included in 
 his indorsement the names of the co-defendants. 
 
 1 WUliair-son v. Wardlaw, 40 Ga., 703. 
 
 2Lyendecker v. Martin, 38 Tex., 287. 
 
 3 Bendy v. Boyce, 37 Tex., 443; Anderson v. Brown, 16 Tex., 554; Bat- 
 tle V. Eddy, 31 Tex., 368; Port^ood v. Wilburn, 33 Tex., 713. Mere 
 error in name, however, will not generally affect the service. If served 
 on the proper party, the summons will ordinarily be sufficient, and if a 
 name be omitted it may be supplied after service. See Part VII, Serv- 
 ice, § 1293 et seq. 
 
 * Lewis V. Grace, 44 Ala., 307.
 
 ORIGINAL PEOCESS. 583 
 
 § 1154. Teniie.— And though it is important that the 
 venue should be correctly stated in the process, to the end 
 that the party served may know before what tribunal he is 
 called to make his defense, still if the proper county is men- 
 tioned m the margin, the insertion of a different county in 
 the body of the summons would not render the same void. 
 Such a defect may be cured by amendment.^ 
 
 § 1155. Immaterial Variations and Omissions. — So 
 immaterial omissions and slight variations will not be re- 
 garded as of sufficient imjwrtance to affect the judgment. 
 As where the seal of the court, or a copy thereof, was 
 omitted from the copy with which the defendant was 
 served, or where the court, which was legally st3^1ed the 
 " court of common pleas," was carelessly and erroneously 
 designated in the process as the "common pleas court," 
 these trifling departures from literal accuracy were held to 
 be immaterial, for the manifest reason that the}^ could not 
 possibly mislead the defendant.- So where a notice of 
 mechanic's lien stated the amount of the account, described 
 the property to be charged, and the account, specifying the 
 materials, was attached to the notice and filed with the 
 clerk, it was held a substantial compliance, though the 
 account was not sworn to as required.' 
 
 § 1156. Requirements of Different States as to Cer- 
 tainty of Summons. — There is not the same degree of 
 particularity required by the statutes of the different states, 
 in the description of the action to which the defendant is 
 called upon to answer, or in stating in the process the cause 
 or causes of action. In Eliode Island the summons is 
 simply required to state that defendant is to answer " in an 
 
 action of , as by declaration to be filed in court will be 
 
 fully set forth." The statute was held to be suificiently 
 complied with where the blank in the summons was fiUed 
 by — " an action on the case for trover and conversion of 
 
 iRelfe V. Valentine, 45 Ala., 286. 
 2 Hughes V. Osborn, 42 Ind., 450. 
 3Hassett v. Bust, 64 Mo., 325.
 
 584 PBACTICE AND PLEADING. 
 
 certain personal property," without specifying particularly 
 the chattels alleged to have been converted.^ 
 
 § 1157. The "Purpose" to be Stated.— So where the 
 statute required all writs of summons in civil actions to 
 state the purpose for which the defendant was summoned, 
 it was held that it was not necessary to describe the nature 
 of the suit any further than to state when and where it 
 was to be answered, and the name of the plaintiff. The 
 construction placed upon the statutory requirement to " state 
 the purpose for which the party is summoned," was that it 
 was intended to give notice to the defendant that he was 
 not summoned to a ppear as a witness or for any other pur- 
 pose than to defend himself in a suit of the plaintiff who 
 was named in the summons. Therefore, it was held to be 
 a sufficient comjiliance with this provision of the statute 
 when the defendant was summoned to appear " to answer 
 an action at the suit of " the plaintiff — naming him.^ 
 
 § 1158. Infant Defendants. — Greater strictness is gen- 
 erally required in the observance of the rules of practice in 
 cases involving the rights of infant parties. So, where the 
 infant distributees under a will were made defendants in a 
 suit for distribution, but were not served with process, either 
 actually or constructively, they were held to be not bound 
 by the judgment, notwithstanding they were plaintiffs in 
 another suit, in which they appeared without next friend or 
 guardian, which suit was consolidated with the one in whicli 
 they had been made defendants.* 
 
 § 1159. When Returnable. — Another feature in which 
 a strict compliance with statutory requu'ements is necessary 
 to uphold the process, is in making it retm^nable at the 
 proper term of court. At common law, and under the stat- 
 utes of some of the states, the original process should be 
 made returnable at the term of com-t next succeeding the 
 date of service. Regarding the issuance of process as the 
 
 * Slocomb V. Powers, 10 R. I., 355. 
 
 2Eitter v. Offutt, 40 Md., 207. 
 
 3 Bush V. Bush, 2 Duvall (Ky.), 269.
 
 OEIGINAL PEOCESS. 585 
 
 commencement of the action, and following the rule that 
 every action is to stand for trial at the first term after it is 
 commenced, there could not be the intervention of a term 
 of court between the teste and return of the writ. Process 
 made returnable on a day beyond the next succeeding term, 
 except where the common law rule is abrogated by statute, 
 would not onl}^ be held irregular, but absolutely void, and 
 any judgment predicated upon such process would be a 
 nullity.^ 
 
 §1160. Substantial and Technical Defects. — It has 
 been asserted by some of the authorities that not all the 
 requisites to perfect process are indispensable to the support 
 of th.Q jurisdiction thereby sought to be acquired over the 
 person of the defendant. The omission of some things 
 regarded as necessary to the protection of a judgment 
 against a direct proceeding to set the same aside, have been 
 held not to justify a collateral attack upon a judgment once 
 obtained.'- Such defects are those which relate rather to the 
 regularity of the process by which jurisdiction is obtained, 
 than to the question whether any pi^ocess has been issued 
 and served. It is the difference between defective process 
 and no process. Where the process is merely defective, it 
 is held that it may be sufficient to give the court jurisdic- 
 tion of the person of the defendant, when it may try all 
 the issues between the parties, and may determine the ques- 
 tion of the sufficiency of the process upon which its juris- 
 diction depends, as one of those issues. Should the case go 
 to judgment, it will be presumed that the court has decided 
 the process to be sufficient, and its judgment can only be 
 affected by a direct proceeding for the purpose of setting 
 
 'Shirley v. Hagar, 3 Blackf., 225; Crocker v. Dunkin, 6 Blackf,, 535; 
 Carey ?J. Butler, 11 Ind., 391; TVUl v. Whitney, 15 id., 194; Rigsbee v. 
 Bowler, 17 id., 167; Atkinson v. Taylor, 2 Wilson, K. B., 117; Parsons 
 V. Loyd, 3 id., 341; Burk v. Barnard, 4 Johns., 809; Briggs v. Sneghan, 
 45 Ind., 14. 
 
 2 Parsley 17. Hays, 23 Iowa, 11; Westoby v. Day, 22 Eng. L. & Eq., 
 261. But see Pollard v. Wegener, 13 Wis., 569.
 
 586 PRACTICE AKD PLEADING. 
 
 the same aside, or by seeking the reversal thereof in a court 
 of appellate jurisdiction.^ 
 
 § llGl. Jurisdiction. — "Jurisdiction," it has been said, 
 " consists not in the declaration of right, but in the right 
 to declare it, and in declaring it rightly ; and therefore pre- 
 supposes that proper efforts have been made to bring those 
 parties into court who are to be affected by its exercise," ^ 
 Just what are proper efforts to bring those parties into 
 court who are to be affected by the exercise of its right to 
 declare, is beset with some difficulty, in view of the dis- 
 tinction between mere irregularities and fatal defects in the 
 process. Though process regarded as defective, and liable 
 to be quashed, has been declared sufficient to protect the 
 judgment from collateral attack,^ still it cannot be main- 
 tained that a mere attempt or pretense at the issuance and- 
 service of process would be sufficient to give the court even 
 the temporary jurisdiction necessary to pass upon the suffi- 
 ciency of the process. "Were the rule otherwise, there could 
 be no such thing as a void judgment, fair on its face. 
 There must be a point of departure from the legal require- 
 ments in this respect where the pretended process would 
 be held no process at all ; otherwise the more complete the 
 fraud in making a show of service of process, the better 
 would be the prospect of success. Many of the defects 
 which utterly vitiate the process, as well as those charac- 
 terized in some of the cases as mere irregularities, occur 
 with respect to the service and return of process, and will 
 be illustrated by cases cited in subsequent parts of this 
 chapter devoted to the return. From a careful consid^ra- 
 
 iSm. Lead, Cas., 697, 700; Borden v. State, 11 Ark., 519; Sheldon v. 
 Wright, 5 N. Y., 497; Wright v. Marsh, 2 G. Greene, 109; Ewing v. 
 Higby, 67 Ohio, 343 ; Paine v. Mooreland, 15 Ohio, 435 ; Moitow v. Weed, 
 4 Iowa, 77; Shawhan v. Laffen, 24 Iowa, 217; Myers v. Overton, 4 E. D. 
 Smith (N. Y.), 428. 
 
 2 F,.T. i-tnrfp. K'innin g, 4 0. B., 507; Kinning V, Buchanan, 8 id., 271; 1 
 Sm. Lead. Cas., 839. 
 
 * Morrow v. Weed, 4 Iowa, 77; Shawhan v. Laffen, supra, % 1160; 
 Fagg V. Clements, 16 Cal., 889.
 
 OEIGINAL PEOCESS. 587 
 
 tion of these cases, as well as those already cited, conflict- 
 ing as some of them will be found, we may safely deduce 
 the rule that where a departure from the requirements of 
 the law, in regard to the issuance or service of process, is in 
 any substantial matter affecting the rights of the defendant, 
 the process will be a nullity, and the judgment may be col- 
 laterally attacked. "What are matters of substance, and 
 what matters of mere form, can best be shown by further 
 reference to the authorities.^ 
 
 1 See post, VIII, and cases cited. Where a party defendant upon 
 whom process has been defectively served, or who has been served with 
 process irregularly issued, or even where he has been served with no 
 process at all, appears to the action, and answers, demurs generally, asks 
 or consents to a continuance, his appearance will amount to a complete 
 waiver of process. Briggs v. Sneghan, 45 Ind., 14; Peters v. St. Louis, 
 etc., R. R. Co., 59 Mo., 406; Reading v. Ford, 1 Bibb, 838; Ryan v. Diis- 
 coll, 83 m., 415; Biles v. Stanton, 69 111., 51; Holman v. Eiterman, 83 
 m., 92; Randall v. Falkner, 41 Cal., 242. But a special appeai'ance for 
 the purpose of objecting to u-regularities in, or failure of, process can- 
 not be construed into a waiver of the u-regulai'ities complained of. 
 MuUen v. Higgins, 13 Abb. Pr., N. S., 297; Jones v. Byrd, 74 lU , 115.
 
 588 PKAOTICE AND PLEADING. 
 
 II. !N"0TICE OF TkIAL. 
 
 § 1162. Required by Statute. 
 
 1163. Example from New York Code. 
 
 1164. English Rule. 
 
 1165. Should Not be Vague or Misleading. 
 
 1166. Should Specify the Particular Suit. 
 
 1167. May be Noticed for Trial by Either Party. 
 
 1168. Sufficiently Explicit as to Term. 
 
 1169. Party Notified May Rely on Term Designated. 
 
 1170. Served Before Issue Joined. 
 
 1171. Does Not Depend Upon Discretion of Court. 
 1173. Service Upon Party or Attorney. 
 
 1173. Effect of Continuance. 
 
 1174. Effect of Amendment. 
 
 1175. Notice Waived. 
 
 1176. Where Judgment Attacked for Want of Notice. 
 
 1177. Must be for Substantial Defects. 
 
 1178. Statement of Wrong Day. 
 
 1179. Failure to Place on Calendar. 
 
 1180. Wisconsin Code. 
 
 1181. Time Under English Rule. 
 
 § 1162. Reciiiired l)y Statute. — The notice treated of in 
 this place is, in general, the creature of statute law, and is 
 sometimes prescribed and regulated in its details by the 
 rules of court, for the reason that the statute does not pre- 
 scribe with sufficient definiteness its form and contents, nor 
 its manner and mode of service. In many of those states 
 where the code has been adopted, and the issues between 
 parties are made by pleadings filed in court, within certain 
 prescribed periods, notice of trial is not required to be served 
 upon the party or his attorney. Where the answer is filed 
 on or before a certain day of the return term, and the 
 plaintiff is required either to reply or demur on or before a 
 certain day after the filing of the answer, the court will 
 take notice when an issue, either of law or fact, is reached, 
 "When the pleadings, with the exception of the first, are 
 filed in term time, the parties are supposed to be fully ad- 
 vised of the progress of the written altercations they are
 
 NOTICE OF TKIAL. 089 
 
 conducting through their attorneys, and the trial " calendar " 
 or " docket " will notify them when the cause is set down 
 for hearing. 
 
 §1163. Example from New York Code.— The system 
 of practice which includes this notice is therefore pecuhar 
 to certain states of the Union,' and to Great Britain. As 
 an example of the provisions of the code of procedure in 
 this respect, we shaU incorporate a section which embraces 
 enough to show not only the object of such a notice, but 
 Avill give a general idea of its principal requisites : " At any 
 time after the joinder of issue, and at least fourteen daj's 
 before the commencement of the term, either party may 
 serve a notice of trial. The party serving the notice must 
 file with the clerk a note of issue, stating the title of the 
 action, the names of the attorneys, the time when the last 
 pleading was served, the nature of the issue, whether of fact 
 or law ; and, if an issue of fact, whether it is triable by a 
 jury, or by the court without a jury. The note of issue 
 must be filed at least eight days before the commencement 
 of the term; unless a different time is prescribed in the 
 general rules of practice. The clerk must thereupon enter 
 the cause upon the calendar, according to the date of the 
 issue. In the city and county of New York, when a party 
 has served a notice of trial, and filed a note of issue, for 
 a term at which the cause is not tried, it is not necessary 
 for him to serve a new note of issue for a succeeding term ; 
 and the action must remain on the calendar until it is dis- 
 posed of." - 
 
 § 1164. English Rule. — The English nile is that, previ- 
 ously to the sittings or assizes at which the cause is to be 
 tried, the plaintiff should give due notice of trial.^ The 
 manner and mode of giving such notice, as well as the 
 time between the service of the notice and the sittings, are 
 regulated, to a considerable extent, by the rules of the court 
 
 1 New York, Wisconsin, New Jersey, Minnesota, and some others. 
 2Tliroop's Code (N. Y.), § 977. 
 STidd'sPrac, 753.
 
 590 PRACTICE AND PLEADING. 
 
 where the cause is triable. These rules differ, in some minor 
 particulars, in the courts of queen's bench, exchequer and 
 common pleas, respectively, but generally receive about the 
 same Uberal construction in either of these tribunals. The 
 tendency of the decisions seems to be to render the notice 
 of trial subservient to the purpose for which it was designed, 
 though in doing so the court may tolerate a departure from 
 technical accuracy.' 
 
 § 1165. Should Not be Tague or Misleading. — In the 
 ]S"ew York code, the contents of the " note of issue," to be 
 filed with the clerk, are prescribed with sufficient definite- 
 ness, while the notice to be served upon the opposite party 
 or his attorney is, by the section quoted, simply required to 
 be served at least fourteen days before the commencement 
 of the term, and as to what it shall contain, is left to the 
 discretion of the party giving it. But enough is intended, 
 by its designation as a notice of trial, to indicate that it 
 should be sufficiently explicit to convey to the party notified 
 definite information of the fact that the cause is to be 
 entered upon the calendar for trial. The absence of any 
 statutory requirements as to the statements to be contained 
 in the notice, as well as the circumstances under which it is 
 given, would not seem to impose the duty of observing 
 technical accuracy in its statements ; but still, it should not 
 be so vague or general as to mislead the opposite party or 
 his attorney. 
 
 §1166. Should Specify the Particular Suit. — So, 
 where two actions, only one of which is noticed for trial, 
 are depending between the same parties, and the same at- 
 torneys are employed to prosecute and defend, the notice 
 should specify the particular action intended by the giver 
 of the notice, as the one to be tried. Otherwise the notice 
 may be considered too indefinite, and consequently insuffi- 
 cient to meet the requirements of the statute.^ So, also, it 
 has been held, where a plaintiff who notices a cause for 
 
 1 Tidd's Prac, 754 et seq., with cases cited in notes. 
 
 2 Lisher v. Parmelee, 1 Wend., 22.
 
 NOTICE OF TRIAL. 591 
 
 trial intends to move for an assessment of damages on de- 
 fault, that such intention should be expressed in the notice.^ 
 § 1167. May l)e Noticed for Trial by Either Party.— 
 
 As the case may be noticed for trial by either party, and 
 may be at issue on a set-off, counter-claim, or cross-demand, 
 by which the defendant asks affirmative relief, should the 
 defendant, in such a case, notice the cause for trial, it has 
 been thought that the notice should express the intention to 
 demand the relief prayed in his answer.- 
 
 §1168. Sufficiently Explicit as to Term.— Xot with- 
 standing the notice should be sufficiently explicit to direct 
 the party's attention to the term at which the cause would 
 be for trial, still it has been held, where the notice was with- 
 out date, and, after mentioning the court in which the cause 
 was pending, informed the party notified that such cause 
 would " be brought on for hearing at the next term of said 
 court," that such notice was not inoperative on account of 
 the absence of the date, from which it might have been 
 gathered what term was meant by " next term." ^ 
 
 § 1 169. Party Notified May Rely on Term Desij;nated. 
 But w^hen the term has been designated, the party notified 
 has a right to rely upon the statements contained in the 
 notice. And if he should not find the cause upon the cal- 
 endar for the term for which he has received notice of trial, 
 he is not bound to examine for each successive term there- 
 after, in order to learn \vhether the cause is in a condition 
 to be called up for trial.^ 
 
 § 1170. Served Before Issue Joined. — The notice should 
 probably be served, in every instance, as is provided in the 
 iS^ew York code of procedure,'' after issue joined, and not 
 hefore. But this has reference only to the issue to be tried. 
 So, where there were two counts in a declaration, to the 
 
 iVoorh. Code (1864), 459. 
 
 3 Brushaban v. Stigemann, 23 Mich., 199. 
 
 4 Culver V. Felt, 4 Rob. (N. Y.), 681. 
 * (Supra.
 
 592 PEACTicE A^ny pleading. 
 
 second of which there were several j??^.?, and to the fourth 
 plea a special rephcation upon which issue was not joined 
 when the notice of trial was served by plaintiff, the declara- 
 tion was amended by striking out such second count. It 
 was held that the notice of trial was effectual as to the first 
 count, and defendant declining to appear further, there was 
 a verdict and judgment for plaintiff.^ It has been held, 
 however, in that state, that the plaintiff, on serving a repli- 
 cation, may at the same time deliver a notice of trial ; but 
 the proceeding is subject to defeat or modification by the 
 subsequent delivery of a demurrer by defendant. And 
 should there be issues of fact joined on some of the pleas, 
 and plaintiff does not join in demurrer, but takes a verdict, 
 he holds the same dependent upon the event of the demur- 
 rer.- It has also been held that notice of hearing cannot 
 properly be served until after the return day in the writ.^ 
 
 § 1171. Does Not Depend Upon Discretion of Court. — 
 Where defendant has apj)eared he is entitled to notice of 
 trial. His right to such notice does not depend in any de- 
 gree upon the discretion of the court. "Whatever may be 
 the circumstances of the case, the court cannot dispense 
 with the service of such notice and render a judgment 
 against defendant which may not be set aside.'' 
 
 § 1172. Service Upon Party or Attorney. — But the 
 service may be either upon the party or his attorney, except 
 where the statute or the rules of court expressly provide 
 that a preference shaU be given to service upon one or the 
 other.^ The manner and mode of service is much the same 
 as that of serving other notices in the course of practice. 
 In one case, where the service was by leaving a copy of 
 the notice at the office of the plaintiff's attorney of record, 
 
 laiiller V. stocking, 23 Wend., 623. 
 2Beresford v. Geddes, Law Rep., 2 C. P., 285. 
 sjVIilesu. Goffinet, 16 Mich., 280. 
 
 * Tracy v. Steam Faucet Manuf. Co., 1 E. D. Smith (N. Y.), 349; Tidd's 
 Prac, 753. 
 6 Ibid.
 
 NOTICE OF TKIAL. 593 
 
 who was absent from the state, and also by personal service 
 upon the plaintiff, the sufficiency of the service was ques- 
 tioned, but was sustained by the court, upon the ground 
 that, as the absent attorney still kept an office Avithin the 
 state, and if he had withdrawn from the case and another 
 had not been retained the party might be personally served.' 
 
 § 1173. Effect of Continuance. — When from any cause 
 the case is not tried at the term for which the notice is 
 given, not only is it unnecessary, as provided by the jS'ew 
 York code,- to file a new note of issue, but under similar 
 code provisions it has been held that the party who first 
 noticed the case is not required to give a new notice of 
 trial.' 
 
 § 1174. Effect of Amendment. — So it has been held, 
 where a cause was regularly noticed for trial and placed 
 upon the calendar, that an amendment of the pleadings 
 would not necessitate a new notice.* 
 
 § 1175. Notice Waived. — An irregularity in a notice of 
 trial, or even a failure to give any notice at all, may only 
 be taken advantage of before trial, for the obvious reason 
 that by proceeding to trial without objection the party 
 waives notice.'^ 
 
 § 1176. Where Judgment Attacked for Want of No- 
 tice. — Where there is an entire absence of notice of trial, 
 or even where such notice is insufficient or irregular in any 
 material respect, the judgment obtained by default in such 
 cause may be set aside, by a direct proceeding for that pur- 
 pose.^ 
 
 § 1177. Must be for Substantial Defects. — But in pass- 
 ing upon the sufficiency of a notice of trial, the court will 
 not set aside the judgment for mere verbal inaccuracies 
 
 iHarwood v. Smethurst, 30 N. J. L., 230. 
 2 Supra. 
 
 sciaudet v. Prince, 2 Q. B., 406. 
 ^Stevens v. Cuny, 10 Minn., 316. 
 
 8 Commonwealth v. Intoxicating Liquors, 13 Allen, 561. 
 6 Jenks V. Pavne, 15 Johns., 399. 
 38
 
 594 niACTICE AND PLEADING. 
 
 which may or may not be prejudicial to the rights of the 
 party complaining of want of notice ; as an error in a name, 
 or the day of the week on which the term commences. 
 The matter to be determined is whether the party or his 
 attorney was misled by the defect, and in deciding this 
 question the court will not be restricted to the face of the 
 notice, but will inquire into aU the other circumstances.^ 
 
 § 1178. Statement of Wrong Day.— As where the day 
 on which the term commenced was given as "the third 
 Tuesday " instead of " the third Monday," and on the "Wednes- 
 day following the third Tuesday the party who had noticed 
 the cause for trial took an inquest ; a motion to set aside 
 the inquest was denied because the attorney upon whom 
 the notice was served had retained the same, and it did not 
 appear that he was in any wise misled by its inaccurate 
 statement of the day of the commencement of the term.^ 
 
 § 1179. Failure to Place on Calendar. — But where the 
 defendant had noticed the cause for trial and had failed to 
 place it upon the calendar pursuant to such notice, and the 
 plaintiff's attorney attended the court on the second day, 
 but finding no such cause on the calendar, and being as- 
 sured by the partner of defendant's attorney that there was 
 no intention to move in the case, gave it no further attention, 
 an order of dismissal taken by defendant was held irregular, 
 and was set aside because plaintiff's attorney was clearly 
 misled.^ 
 
 § 1180. Wisconsin Code. — The Wisconsin code differs 
 somewhat from that of Kew York with respect to notices 
 of trial. The latter has already been copied.* The former 
 pro\'ides that " at any time after issue joined in any civil 
 
 1 Wolfe V. Horton, 3 Caines, 86; Bander v. Covill, 4 Cow., GO; Down 
 V. Rice, 11 Wend.^ 178. 
 
 '•^N. Y. Cent. Ins. Co. v. Kelsey, 13 How. Pr., 535; Bander v. Covill, 4 
 Cow., 60; Anonymous, 1 Johns., 143; Jackson ex detn. Davis v. Bron- 
 6on, 4 Cow., 51. 
 
 3 Browning v. Paige, 7 How. Pr., 487. 
 
 * Ante, page 589.
 
 NOTICE OF TRIAL. 595 
 
 action, either part}" may bring the same on for trial at any 
 term of the court at which the same is triable, by giving 
 notice of trial at least ten days before such term." ' In 
 construing this section it was held that the language clearly 
 indicated that the party who would force the other to trial 
 must himself give the notice. The intention of the statute 
 was not merely to secure the placing of the cause upon the 
 calendar, but was intended to modify or repeal a former 
 statute providing that either party, in the absence of the 
 other, might call any case upon the calendar, up for trial. 
 And where the case was noticed for trial by the defendant, 
 plaintiff could not, under the provisions of the later statute, 
 call the case up and take judgment in the absence of the 
 defendant.- 
 
 § 1 1 81. Time Under English Rule. — In England, where 
 the rule for " town causes " was eight days' notice to those 
 who were resident in town, or within forty computed miles 
 thereof, and fourteen days to those Avho resided more than 
 forty miles distant, it was held that a party who, since the 
 institution of the suit, had removed to the distance of forty 
 miles, was entitled to the longer notice.^ But to entitle a 
 party who had removed from town after the commence- 
 ment of the suit, to fourteen days' notice of trial, it was 
 also held that he should give the opposite party notice of 
 such removal* And where defendant had constantly re- 
 sided in town from the time of the arrest, though his home 
 was more than forty miles from town, it was held that in 
 a town cause he was only entitled to eight days' notice of 
 trial.* 
 
 iLaws Wis., 1859, chap. 71, § 1 ; Stat. Wis. 1871, p. 1494, § 9. In cer- 
 tain actions specified, the defendant may notice the action for hearing 
 on trial, both upon questions of law and fact, regardless of whether 
 issue has been joined upon the facts or not. Id., p. 1495, § 10. 
 
 - Buckley v. Lewis, 20 Wis., 490. 
 
 a Spencer v. Hall, 1 East, 688. 
 
 * Rochfort V. Robertson, 12 East, 427. 
 
 5 Lloyd V. Hooper, 7 East, 624.
 
 596 PKACTICE AND PLEADING. 
 
 in. Notice of Motions and Othek Inteklocutort Pko- 
 
 CEEDINGS. 
 
 § 1183. Motions. 
 
 1183. Notice by Entry in Book. 
 
 1184. When Required, 
 
 1185. Presence of Counsel Will Not Waive. 
 
 1186. Parties Charged with Notice of Motion. 
 
 1187. Motion in the Natm-e of Summary Proceeding. 
 
 1188. Motion to Set Aside Sheriff's Sale. 
 
 1189. Filed in Term Time. 
 
 1190. Examples Under Different Statutes. 
 
 1191. Motion to Dismiss Appeal. 
 1193. Sufficiency of Notice. 
 
 1193. Substantial Accuracy. 
 
 1194. Against Constable. 
 
 1195. Designation of Court. 
 
 1196. Date of Filmg. 
 
 1197. Circumstances Affecting Sufficiency. 
 
 1198. Notice Generally in Writing. 
 
 1199. Service of Notice. 
 
 1300. Upon the Party Affected. 
 
 1301. Time of Notice. 
 
 1303. Motion for New Trial. 
 1803. Waiver by Appearance. 
 
 1304. Notice of Reference. 
 
 1305. Notice of Reinstatement. 
 
 1306. Rule to Show Cause. 
 
 1307. Examination of Accounts. 
 
 § 1182. Motions. — The motions that are made in the 
 progress of a trial, or used to institute proceedings in court, 
 are too numerous and diverse in character to render it either 
 practicable or useful, for the purposes of this work, to 
 attempt an enumeration of them, in order to state when and 
 under what circumstances a notice of such motion should be 
 given to the opposite party, or might be dispensed with. 
 Neither is it necessary to set out in detail the provisions of 
 the various statutes upon this subject. It will be sufficient 
 to give such general rules as may be extracted from the 
 judicial construction given to statutes bearing upon the sub-
 
 NOTICE OF PKOCEEDINGS. 597 
 
 ject, and to endeavor to properly set forth the methods 
 favored by the courts for imparting notice of such motions. 
 
 § 1183. Notice by Entry in Book. — The practice of 
 serving the opposite party with notice of motions is not at 
 all uniform. In some of the states the only notice received 
 of the filing of an interlocutory motion, by the party to be 
 affected thereby, is by its filing in open court, or by an entry 
 in a book, variously designated as " Motion Docket," " Law 
 Docket," or " Law Calendar," kept for that purpose, in court 
 during term time, and in the office of the clerk of such 
 court during vacation. This book is at all times open to 
 insj)ection, and when a motion is entered there, the attorney 
 for the opposite party is presumed to be fully notified of 
 the pendency of such motion. Even the keeping of such 
 book is not always prescribed by statute, but is in some in- 
 stances left to the discretion of the court, to be laid down 
 as one of its rules or entirely omitted, as may be deemed 
 most expedient. We shall not attempt to enter minutely 
 into a consideration of such notices of motions as are given 
 in this manner, but shall confine our attention to such as are 
 given by the mover or his attorney to the party to be af- 
 fected, or the attorney of such party, by means of regular 
 service of such notice in writing. 
 
 § 1184:. When Required. — And first, as to when notice 
 of a motion should be given. In general, when the motion 
 extends to and affects the interest of the party against 
 whom the motion is made beyond his process, such party or 
 his attorney must be served with notice ; as, where the mo- 
 tion is by defendant, to have an execution against him 
 entered satisfied. Though the motion merely affected the 
 process, the party being supposed to be present in court with 
 his process, it was held such motion might have been made 
 without notice.^ 
 
 § 1185. Presence of Counsel Will Not Waive.— How- 
 ever, it is not to be inferred that the mere presence of the 
 
 1 Haley v. Williams, 8 Sm. & M., 487.
 
 598 PKACTICE AND PLEADING. 
 
 party or liis attorney in court Avhen the motion is made will 
 always be sufficient to dispense with a notice of such mo- 
 tion. On the contrary, it has been held that the certificate 
 of a judge that counsel of the adverse party was in court 
 when a motion was made, but without stating that such 
 counsel had notice or knowledge of the motion, was not 
 sufficient to show notice to him,^ 
 
 § 1186. Parties Charged with Notice of Motion. — Else- 
 where it has been held that when a party is once in court, 
 he must, at his peril, take notice of all orders and all plead- 
 ings ^Z<?fi? hy order of the court? But the distinction between 
 motions or pleadings filed by order of the court, and those 
 filed by the party at his own instance, is quite obvious. 
 
 § 1187. Motion in the Nature of Summary Proceed- 
 ing. — Where the motion is in the nature of a summary 
 proceeding against some one who has not already been 
 brought in by process, notice of such motion should always 
 be given. As where it is for the removal of a jailer or other 
 ministerial officer for alleged malfeasance or misfeasance, 
 such motion should not be sustained where the officer has 
 not been duly notified of its pendency against him.^ "Where 
 the motion was for judgment against a sheriif for making 
 a false return, it was held that to allow judgment to go ac- 
 cording to such motion, without giving the sheriff such 
 notice as would enable him to appear and make his defense, 
 would be equivalent to the prosecution of a civil suit against 
 a defendant upon whom original process had never been 
 served. He would not have his day in court, and hence 
 such judgment would be absolutely void.^ 
 
 § 1188. Motion to Set Aside Sheriff's Sale. — So, also, 
 should notice be given of a motion to set aside a sheriff's 
 
 iShotwell V. RoweU, 30 Ga., 557. 
 
 2 Williams v. MUler, 1 Wash, Terr., 105. See Meredith v. Santa Clara^ 
 etc., Min. Ass'n, 60 Cal., 617. 
 3Gorham v. Luckett, 6 B. Monr., 146. 
 « Jenkins v. State, 33 JMiss., 383.
 
 NOTICE OF PROCEEDINGS. 599 
 
 sale,^ or to set aside an order of court made at a prior temi 
 of court ; - in either of which cases the notice should be given 
 to all parties interested. But a motion made to set aside a 
 verdict, rendered at the same term at which the motion was 
 made, was held not to require any formal notice, because 
 being made at the same term at which the trial was had, it 
 thereby became a part of the trial.^ Nor is notice necessary 
 of a motion to set aside a default entered by a justice of the 
 peace, even in states where notice of motion is generally 
 required.* 
 
 § 1189. Filed in Term Time. — It has also been held 
 that motions filed in term time do not require the service of 
 notice on the opposite party, when such motion has refer- 
 ence to a proceeding before the court at the term at which 
 the motion was made.^ 
 
 § 1190. Examples Under Different Statntes. — In gen- 
 eral, the codes require notice to be given of an intended 
 motion for a new trial.^ Also of a motion for alimony in- 
 cident to a decree of divorce, which is in the nature of a 
 summary proceeding, and the notice ansAvers the same pur- 
 pose as the original process in the litigation of any claim or 
 demand, and consequent!}' should be served the fuU time 
 prescribed by statute for the service of such notices ; other- 
 wise they should not be heard.'' But under a statute of thd 
 state of Georgia, it was held that where the object of the 
 motion Avas to establish copies of office papers, notice was 
 not indispensable.^ 
 
 § 1191. Motion to Dismiss Appeal.— Where a motion 
 was made to dismiss an appeal, it was held that as the par- 
 
 i Osborn v. Cloud, 21 Iowa, 238. 
 2Keeney v. Lyon, 21 Iowa, 277. 
 3 Hansen v. Fish, 27 Wis., 535. 
 * Stivers v. Thompson, 15 Iowa, 1. 
 5 Wagner u. Tice, 36 Iowa, 599. 
 
 SKilUp V. Empu-e Mill Co., 2 Nev., 84; Coveny v. Hale, 49 Cal., 552; 
 Markward v. Doriat, 21 Ohio St., 637. 
 7 WUde V. Wilde, 2 Nev., 306. 
 8 Saunders v. Smith, 3 Ga., 121.
 
 600 PEACTICE A^T» PLEADLN'G. 
 
 ties were supposed to be in court after continuance for col- 
 lateral motions, they were not entitled to any other notice 
 than the entry of such motion on the law docket, according 
 to the practice of the court. ^ 
 
 § 1192. Sufficiency of Notice. — Xext, as to what is suf- 
 ficient notice of a motion. Where formal notice is required 
 at all, beyond the entry of the motion itself in the docket 
 or calendar, the almost universal requirement is that it shall 
 be reduced to writing, and regularly served upon the party 
 or his attorney. And such notice should contain a state- 
 ment sufficiently specific and certain to advise the party so 
 served of the natm^e of the motion to be made and of the 
 particular matter in controversy to be aflected by such 
 motion. And where the motion is to be directed to a mat- 
 ter affecting the interests of the party notified, and he 
 would have the right to explain or deny by affidavit the 
 matter constituting the groimds alleged for the motion, 
 such ground should be stated with reasonable certainty in 
 the notice.- 
 
 § 1193. Substantial Accuracy. — As in other matters of 
 practice, so in this, is the notice prescribed one which de- 
 pends for its sufficiency more upon a substantial subserv- 
 ance of the objects and purposes for which it was designed 
 than upon any technical precision of its statements. So, 
 even where the motion noticed was in the nature of a sum- 
 mary proceeding under the statute, for the pm-pose of charg- 
 ing the party notified with a debt, it was held sufficiently 
 definite if it described with reasonable certainty the debt 
 with reference to which the motion was to be made.* 
 
 § 119-1. Against Constable. — So, where the motion was 
 against a constable, charging him with neglect of duty, and 
 was in the natur-e of a pleading, substantial certainty in 
 the notice was sufficient. The judgment with reference to 
 
 1 Papin V. Buckingham, 33 Mo. , 454. 
 
 2Brower r. Brooks, 1 Barb., 423; Freeborn v. Glazier, 10 CaL, 337. 
 sColgin r. State Bank, 11 Ala.. 222. See Barbaries v. Gregory, 64 Cal., 
 2S0.
 
 NOTICE OF rUOCEEDINGS. 601 
 
 wbicli the neglect was alleged, being described as against 
 "P. and others," while it appeared in evidence that it was 
 against "P. & L.," the error was held immaterial.^ But 
 where the motion noticed was against a constable for neg- 
 lect of duty in not paying over money collected on claims 
 placed in his hands, the notice was held fatally defective 
 for not averring that he had collected any money on such 
 claims.'- 
 
 § 1195. Designation of Court. — Where the notice desig- 
 nates the court in which the motion is to be made, the place 
 of holding such court, being a matter of which every one 
 is supposed to take notice, need not be stated in the notice 
 in order to render the same sufficient.* 
 
 § 1196. Date of Filing.— But where a motion is to be 
 made for judgment, the notice should give the correct date 
 when the motion will be made, for the same reason that the 
 original process is required to be specific in this particular. 
 It was accordingly held, where notice was given that a 
 motion for judgment against a sheriif would be made on 
 the fouHli of the month, and such motion was filed on the 
 third and ordered to he over, and was taken up subsequent 
 to the fourth and judgment rendered thereon, that such 
 judgment was void.** But where the notice was given of a 
 motion to be made on the twenty-fifth of the month, and 
 the court adjourned over that day, it was held that the 
 motion might be heard on a day subsequent to the twenty- 
 fifth without a new notice.^ 
 
 § 1197. Circumstances Affecting Sufficiency. — The suf- 
 ficiency of the notice often depends upon collateral cir- 
 cumstances. As where the motion was for judgment on a 
 bond, given to suspend a sale of property levied on to 
 
 1 Hix V. Cornelison, 7 Coldw. (Tenn.), 299. 
 
 2 Barrett v. Smith, 4 W. Va., 709. 
 
 3 Brown u. State, 8 Heisk. (Teiin.), 871. 
 * Foster v. Wade, 4 Met. (Ky.), 252. 
 
 5 Piatt V. Robinson, 10 Wis., 128.
 
 602 PRACTICE AND PLEADING. 
 
 satisfy an execution, tlie suflBciency of the notice was de- 
 termined by considering it in connection witli tlie bond.^ 
 
 § 1198. Notice Generally in Writing. — The rule seems 
 almost universal that the notice should be written, except 
 where there is an express waiver, or such conduct by the 
 party as will estop him from denying the receipt of notice. 
 It Avas accordingly held that an informal verbal notice of a 
 motion for a new trial, given out of court, while in conver- 
 sation with opposing counsel, would not be sufficient.^ 
 
 § 1199. Service of Notice. — Another important matter 
 for consideration, in connection with this branch of the sub- 
 ject, is service of such notices ; which necessarily includes 
 ujpon whom and hy lohom the service of notice should be 
 made, as well as the time and manner of making such serv- 
 ice. The rules applicable to the service of other notices 
 will be found generally applicable to service of notice of 
 a motion, and these rules we shall endeavor to illustrate 
 more fully elsewhere.^ It may be proper to state here, how- 
 ever, that the notice of a motion should always be served 
 upon the party to be aifected thereby, or upon his attorney 
 of record, if he have one.* When the motion is one aris- 
 ing in the course of the trial of a cause, a decided prefer- 
 ence seems to be given to service hy the attorney of the 
 party giving the notice, and upon the attorney of the oppo- 
 site party, not only as a matter of general convenience, 
 but as a positive rule of practice, laid down by some of the 
 courts.^ 
 
 § 1200. Upon the Party Affected. — In the case of 
 Walker -y. Scott,*' it was decided that the judgment, which 
 
 1 Smith V. Wells' Adm'rs, 4 Bush (Ky.), 93. 
 
 2Kiinp V. Empu-e Mill Co., 3 Nev., 34; Pearson v. Lovejoy, 53 Barb. 
 (N. Y.), 407; Butler v. Mitchell, 17 Wis., 52; Bear Eiver and Auburn, 
 etc., Co. V. Boles, 24 Cal., 854. 
 
 3 See post, VII, Service. 
 
 4 Walker v. Scott, 29 Ga., 392. 
 
 6 Harding v. Stafford, Say; Rep., 133; Halsey v. Carter, 6 Rob. (N. Y,), 
 535. 
 ^ Supra, § 1199.
 
 NOTICE OF PKOCEEDINGS. GU3 
 
 sliould have been against the principal and liis surety, being 
 by mistake entered against the principal alone, might, on 
 motion, be amended by adding the name of the surety, and 
 it would not be necessary to serve notice of such motion on 
 the principal. This holding was obviously for the reason 
 that the principal was not the party interested in the motion. 
 
 § 1201. Time of Notice. — The length of time for which 
 the notice must be given of an intended motion, before the 
 same will be considered by the court, varies according to 
 the character of the motion, as well as the difference in the 
 practice of the different courts ; but where no fixed rule is 
 prescribed by statute or rule of court, it wiU be sufficient if 
 the notice is served a reasonable time before the court takes 
 action in the matter.^ And even where the time is lixed by 
 rule, it is frequently subject to the will of the court, in the 
 exercise of a sound discretion, to shorten the time in partic- 
 ular instances, before the service of the notice.^ 
 
 § 1202. Motion for New Trial.— It has been held that 
 moving for a new trial will continue the jurisdiction of the 
 court over the cause beyond the term, when due notice of 
 the intention to so move has been given, and such notice is 
 followed up by a statement or affidavit of what the motion 
 will contain, made in due time ; but if the notice and subse- 
 quent statement are not made within the statutory time, 
 the com't loses jm'isdiction of the cause at the end of the 
 term, and thereafter cannot set aside a judgment, however 
 erroneous it may be.' 
 
 iBruenv. Bruen, 43 111., 408; Coveny v. Hale, 49 Cal., 552; Damb- 
 mann v. White, 48 Cal., 439; Crowther v. Rowlandson, 27 Cal., 376; 
 8 Price, 503 ; Douglas v. Eay, 4 Durnf . & East, 552. 
 
 2 Rogers v. McElhone, 12 Abb. Pr., 392. See Gray v. Nunan, 63 Cal., 
 220; Patrick v. Morse, 64 Cal., 462; Emeric v. Alvarado, 64 Cal., 529. 
 
 3 State V. First National Bank, 4 Nev., 358; Caney i?. Silverthorn, 9 
 Cal., 67; Calderwood v. Brooks, 28 Cal., 151. See People t?. Center, 61 
 Cal., 191; Wittenbrock v. BeUmer, 62 Cal., 558. K the notice does not 
 conform to the statute in respect to whether the motion should be made 
 upon affidavits, it will not suffice. Hill v. Beatty, 61 Cal., 292; Farrell 
 V. Jones, 63 Cal., 194.
 
 C04 PEACTICE AND PLEADING. 
 
 § 1203. Waiyer by Appearance. — Irregularities in the 
 notice, however, which might furnish sufficient grounds for 
 overruling the motion, or even for setting aside the order or 
 judgment based upon such motion, where the same had been 
 sustained, may all be waived b}'^ an appearance for the pur- 
 pose of contesting the motion when the same comes up for 
 hearing.^ 
 
 § 1 204. Notice of Reference. — One of the proceedings 
 where notice becomes necessary is when a cause is by the 
 court referred to a master, or to a special referee appointed 
 for that purpose. If the order of reference is made in the 
 absence of either party or his attorney, such absent party 
 or attorney would be entitled to notice thereof, in some 
 form. And when the reference is made, the parties or their 
 attorneys should be duly notified of the hearing. This 
 notice must be given in a reasonable time so as to enable 
 the one notified to be in attendance at the time without 
 using extraordinary diligence. So that, in one instance, 
 three days' notice, where that time was barely sufficient, 
 barring all delays, to allow the attorney of the opposite 
 party to attend the hearing, was held insufficient.^ But it 
 has been held that where a cause is unnecessarily referred, 
 all the facts necessary to a decree being in possession of the 
 court, there is no necessity for notice to the opposite party 
 of such reference.* 
 
 §1205. Notice of Reinstatement. — Where a cause has 
 been finally disposed of by confirmation of the master's re- 
 port, if either party desires to reinstate the case, for the 
 purpose of instituting further proceedings in relation thereto, 
 it must be upon due notice to the opposite party. And 
 where such a case was reinstated at a term next succeeding 
 the one at which the report was confirmed, without notice 
 to the opposite party, it was held that all subsequent pro- 
 
 1 Brown v. State, 8 Heisk. (Teim.), 871. 
 
 2 Strang v. AHen, 44 HI., 428. 
 
 3 Michigan -Insurance Co. v. Whittimore, 13 Mich., 427; Kellogg v. 
 Putnam, 11 Mich., 344.
 
 KOTICE OF rKOCEEDINGS. G05 
 
 ceedings and orders affecting the interests of the party not 
 notified would not only be irregular, but absolutely void.^ 
 
 § 1206. Rule to Show Cause. — Where a rule to show 
 cause why a petition should not be dismissed had been 
 continued indefinitely, and it was finally fixed for a time 
 certain, it was held that the party against whom the rule was 
 granted would be entitled to reasonable notice of the fixing 
 thereof.^ Upon the same principle, if the continuance was 
 at the instance of the party subject to the rule, and the fix- 
 ing of the rule was on his application or with his knowledge, 
 the opposite party should have notice. But where a fore- 
 closure suit was revived, by scire facias, against the heirs of 
 a deceased mortgagor, under a statute requiring the filing 
 of the response and the service of a copy on the attorneys 
 of the plaintiff, it Avas held that the notice was not void by 
 reason of its f aihng to fix a time for showing cause ; because 
 the practice in such cases was a matter of statutory regula- 
 tion, and the fixing of the time by the notice was not re- 
 quired by statute.^ 
 
 § 1207. Examination of Accounts.— An accounting 
 party may be cross-examined on his accounts, after the same 
 have been submitted. When this is done, he is generally 
 entitled to notice of such cross-examination, and the notice 
 should specify the points upon which the examination is to 
 proceed.* 
 
 1 Mulvey v. Carpenter, 78 lU., 580. 
 
 2Hennen v. New Orleans & C. R. R. Co., 20 La. An., 544. 
 
 SDurbin v. Waldo, 15 Wis., 3$2. 
 
 ^McArthurr. Dudgeon, 15 Eq. Cas., 103.
 
 606 PKACTicE Aj^d pleading. 
 
 TV. iN'oTicE OF Appeal, 
 
 § 1208. iTot Always Eequired. 
 
 1209. Written, and Served Upon Attorney. 
 
 1210. In Criminal Cases. 
 
 1211. Justices of the Peace. 
 
 1212. When Notice Serves as an Assignment of Errors. 
 
 1213. Grounds of Appeal. 
 
 1214. Assent to Judgment. 
 
 1215. Must be on Same Day. 
 
 1216. Must be Given in Time. 
 
 1217. Personal Service Not Required. 
 
 1218. Notice to be Given to Co-parties. 
 
 1219. Does Not Depend Upon Conflict of Interest. 
 
 1220. Waived by Appearance. 
 
 § 1208. Not Ahvays Required. — The rules governing the 
 notice of appeal possess very few features of a peculiar char- 
 acter, to distinguish them from those applicable to notices of 
 other court proceedings. Under the code practice of some of 
 the states of the Union, there is practically no such thing as 
 a notice of appeals, except where they are taken from judg- 
 ments of justices of the peace and other inferior courts. 
 The proceedings to perfect the appeal take place in open 
 court, and the appellee is required to take notice of such 
 proceedings, to the same extent as he would of the rendition 
 of the judgment. But when the appeal is perfected during 
 vacation, there may be certain acts, as signing of the bill of 
 exceptions, and the like, of which the appellee should have 
 notice. 
 
 §1209. Written, and Served Upon Attorney.— This, 
 like most of the notices required in practice, should be writ- 
 ten ; • and, in civil actions where the opposite party appears 
 
 iMasterson v. Herndon, 10 Wall., 416; LaiTabee v. Morrison, 15 Minn., 
 196. In this case it was held that an omission of the signature to the 
 notice might be taken advantage of after admission of service. Tiffin v. 
 Millington, 3 Mo., 418, where it is decided that such notice cannot be 
 properly served by reading the same to the opposite party, but the writ- 
 ing must be delivered to him.
 
 NOTICE OF APPEAL 607 
 
 by attorney, may in every instance be served upon the 
 attorney, and may be signed by the attorney of appellant.^ 
 In some of the states, in cases where an attorney has been 
 employed, the service of the notice is required to be made 
 upon him.^ 
 
 §1210. In Criminal Cases. — There is perhaps no very 
 good reason for a contrary rule in criminal cases, and where 
 the appeal is taken by the defendant, the notice could be 
 served upon the state's attorney. Where not so served, it 
 was held that the appeal should be dismissed.^ But it has 
 been decided, when the appeal was taken by the state, that 
 notice of appeal served upon defendant's counsel was not in 
 compliance with the statute, and because the notice was 
 not served upon the defendant in person, the appeal was 
 dismissed.* Though, when the defendant cannot be found, 
 the notice may be effectuall}^ served b}^ posting it in the 
 office of the clerk of the court.'^ However, it has been held 
 that in case of an appeal from an order changing the place 
 of trial, the notice sliould be served upon the clerk of the 
 court in which such order is made.'' 
 
 § 1211. Justices of the Peace.— Under a statute of a 
 state, where such notice was exacted in ever}^ case of an 
 appeal from a judgment of a justice of the peace,^ and 
 appeals were held to be properly dismissed for the slightest 
 variation from statutory requirements in the matter of de- 
 scribing the case, the authority of the person or officer mak- 
 ing the service,^ of the time of service, or any other essential 
 
 1 Larrabee v. Morrison, supra. 
 
 2 Abrahams v. Stokes, 39 Cal., 150; Tripp tJ, De Bow, 5 How. (N. Y.) 
 Pr., 114. One notice of appeal from parts of two judgments, and from 
 a special order after judgment, will not suffice. People v. Center, 61 
 Cal., 191 ; Wittenbrock v. Ballmer, 6.3 Cal., 558. 
 
 3 People V. Fennel, etc. (Utah), 6 West Coast Rep., 837. 
 
 *State V. Brandon, 6 Kan., 243; State v. Baird, 9 Kan., 60. 
 
 5 Tbid. 
 
 « Haas V. Weinhagen, 30 Wis., 326. 
 
 ' Masterson v. ElUngton, 10 Mo., 712; McCabe v. Lecompt, 15 Mo., 78. 
 
 s Tiflan V. Millington, 3 Mo., 418.
 
 608 PliACTICE AXD PLEADI^'G. 
 
 particular,' it was held that such notice might be executed 
 by an agent in the name of his principal, and if it were 
 doubtful whether he was properly authorized, parol evidence 
 was competent to establish the fact.- And where the notice 
 was signed by the person who appeared for the appellant, it 
 was held immaterial that he did not describe himself as at- 
 torney for the appellant,^ and that a want of notice might 
 be waived by the appellee's appearance and moving to dis- 
 miss on account of an inforraahty in the bond.'* 
 
 § 1212. When Notice Serves as an Assignment of 
 Errors. — In the state of New York, the notice of appeal 
 from an inferior com't seems to serve the purpose in the ap- 
 pellate court of an assignment of errors or bill of excep- 
 tions. On appeal, or error, the appellant or plaintiff in 
 error is confined to the ground of appeal assigned in the 
 notice, or the error therein complained of, with the same 
 strictness as parties to suits in courts of general jurisdiction 
 are restricted to the allegations in their written pleadings.^ 
 And such notice is required to point out clearly the grounds 
 of appeal. It was accordingly held, in an appeal from the 
 judgment of the court of common pleas, that it was not 
 sufficient for the notice to state that the judgment was 
 against the law and evidence.^ 
 
 § 1213. Grromuls of Appeal.— So, in case of an appeal 
 from the judgment of a justice of the peace, u2)on the law, 
 where the grounds of appeal assigned were that the evi- 
 dence " was incompetent, did not support the judgment, 
 that on it the plaintiff was not entitled to recover, and that 
 the judgment was contrary to law," the notice was held in- 
 
 1 Hempstead v. Darby, 2 Mo., 25 ; Cocliran v. Bird, id., 141 ; Hayton v. 
 Hope, 3 Mo., 53. 
 
 2 Runkle v. Hagan, 3 Mo., 234. 
 
 3 Eutledge v. Superior Court (Cal.), 6 West Coast Rep., 565. 
 
 4 Rector v. St. Louis Cir. Ct., 1 Mo., 607. 
 
 5 Belong V. Brainard, 1 Thomp. «& C. (N. Y.), 1 ; Avery v. Woodbeck, 
 5 Lans. (N. Y.), 498; S. C, 62 Barb., 557. See Code of Procedure, N. 
 Y., § 353. 
 
 6 Begley v. Chose, 4 Daly (N. Y.), 157.
 
 NOTICE OF APrEAL. 609 
 
 suiBcient to sustain the appeal, because i.: did not point out 
 specifically the errors in the judgment appealed from.^ But 
 where one good ground of appeal is assigned in the notice, 
 it seems the appeal will not be dismissed, whether it be an 
 appeal upon the law or the facts; as the provisions of the 
 code - appear to apply to both alike.' 
 
 § 1214. Assent to Judgment. — Another requisite of the 
 notice under the New York practice is that it shall contain 
 an assent that, " if the judgment be aflirmed, judgment 
 absolute may be rendered against the appellant ; " but where 
 this is omitted by mistake, it may be supplied by amend- 
 ment, even after the expiration of the time for appeal, nwic 
 jyro tunc} 
 
 § 1215. On Same Bay.— Under the code of civil pro- 
 cedure of the state of California, the filing of the notice of 
 appeal, the undertaking and the service of notice must be 
 effected on the same day. The notice may be served per- 
 sonally, or in any of the other modes provided by statute 
 for the service of similar papers, and when the appeal fails 
 for the want of timely notice, a new appeal may be taken.'^ 
 
 § 1216. Must be Given in Time. — So, also, where the 
 practice under the code of another state "^ was to give ten 
 days' notice of appeals from the judgments of justices' 
 courts, it was held that a failure to give the notice precisely 
 within the time would not be such a serious default as to 
 preclude the party from the right to have his case reheard." 
 
 § 1217. Personal Service Not Required. — The neces- 
 sity for a relaxation of the strict rule requiring personal 
 
 1 Belong V. Brainard, 1 Thomp. & C. (N. Y.), 1. 
 
 2 See Voor. Code (1864), § 371 ; also §§ 353, 354, note. 
 3Younghaus v. Fingar, 63 Barb., 299; S. C, 47 N. Y., 99; Bixby v. 
 
 Warden, 46 Hott. Pr., 239. 
 
 *Mott V. Lansing, 5 Lans., 516. 
 
 sColumbetu. Pacheco, 46 Cal., 650. 
 
 6 Code Prac. North Carolina, § 535. 
 
 ■^ Marsh v. Cohen, 68 N. C, 283. It was held in California that an 
 appeal would be dismissed if notice were given prior to final judgment. 
 People V. Center, 6 West Coast Rep., 150. 
 39
 
 GIO PKACTICE AND PLEADING. 
 
 service of notice is perhaps more apparent in the notice of 
 appeal than in any other. AVere it not for tlie fact that 
 some other mode than personal delivery of a written notice 
 to the appellee is provided by the statutes of the different 
 states, the courts would, in cases where personal service was 
 impossible, be inclined to look favorably upon the substitu- 
 tion of such other modes as were prescribed in analogous 
 cases. Otherwise a party who had succeeded in obtaining 
 an unjust judgment, might, by avoiding personal service of 
 notice, entirely defeat the right of appeal. But Avhen the 
 service is by any statutory method, the return should show 
 the state of facts by which it was authorized.' 
 
 § 1218. Notice to be Given to Co-parties. — It is not 
 always sufficient to give notice of appeal to the opposite 
 party. The interests of a co-plaintiff or co-defendant may 
 be adverse to those of the party who complains of error in 
 the judgment; in w^iich event it is incumbent upon the 
 party appealing to give notice of such appeal to such co- 
 plaintiff or co-defendant.^ 
 
 § 12 lU. Does Not Depend Upon Conflict of Interest. — 
 This rule of practice is of more general application than 
 that requiring notice of appeal to the opposite party, and 
 does not depend upon the existence of a conflict of interests 
 between co-parties. In the supreme court of the United 
 States, it was formerly required, when one or more of the 
 vanquished parties desired to appeal or sue out a writ of 
 error, that a summons should be served upon those who 
 were willing to abide the judgment and have a severance j 
 but latterly there has been adopted, as a substitute for such 
 summons and severance, the service of a written notice upon 
 such parties. And the mere allegation of the appellant, in 
 his petition, that his co-parties failed to appear or refused 
 to join, will not be sufficient. The record should show due 
 service of notice upon the parties, or that they appeared 
 
 J Cunningham v. Warnekey, 61 Cal., 507; Wittenbrock f . Bellmer, 62 
 Cal., 558; Steele u. Merced County, 62 Cal., 6. 
 2HiscoGk V. Phelps, 2 Lans. (N. Y.), 106; Reed v. Allison, 61 Cal., 461.
 
 NOTICE OF APPEAL. 611 
 
 and refused to join in the appeal, and that the court granted 
 an appeal to the party who prayed for it, as to his own 
 interest.' 
 
 § 1220. Waived by Appearance. — Where, however, one 
 of several co-plaintiffs or co-defendants appeals, and the 
 others appear and refuse to join, this renders notice to them 
 unnecessary, under the rule that a voluntary appearance of 
 a party entitled to notice amounts to a waiver of such no- 
 tice.^ According to the same rule, the voluntary appear- 
 ance of the appellee is regarded as a waiver of the notice 
 of appeal, where such notice is required.^ The indorsement 
 of an acknowledgment of " due service " will obviate inquiry 
 into the manner of service.* 
 
 JMasterson v. Henderson, 10 Wall., 416. See, also, as to statutory- 
 provision on the same subject, in the state of Indiana, 2 G. & H., 270, 
 §551. If any question can be said to be "settled" by numerous de- 
 cisions, the construction of this statute, requiring notice fi'om an appel- 
 lant to his co-pai'ties, may be considered at rest in that state. The appeal 
 has been uniformly dismissed where notice was neglected. Knar v, 
 Conway, 37 Ind., 257; Pittsburgh & C. R. R. Co. v. Elliott, 38Ind., 153; 
 id., 103; id., 226; id., 266; id., 589; id., 427; 39 Ind., 244; id., 393; id., 
 474; 40 Ind., 142; id., 195; id., 341; 41 Ind., 143; id., 277; 42 Ind., 386; 
 id., 399; id., 477; id., 497; 43 Ind., 1; id., 472; id., 380; id., 381; id., 29. 
 
 2 Rich V. Starbuck, 45 Ind., 310. 
 
 3 But though consent may waive error or irregularity in giving the 
 notice, where it is necessary to the jurisdiction of the appellate court, 
 such jurisdiction cannot be conferred by waiver of notice. Oliver v. 
 Harvey, 5 Oreg., 360. 
 
 4 People V. Grigsby, 62 Cal., 482.
 
 g22 PKACTICE A.KD PLEADING. 
 
 Y. Notice of Taking Depositions. 
 
 § 1231. When Required. 
 
 1222. Generally in Writing. 
 
 1223. Wliat to Contain. 
 
 1224. Deemed Sufficient. 
 
 1225. Clerical Errors. 
 
 1226. Name of Officer. 
 
 1227. Witnesses Need Not All be Named. 
 
 1228. Conditional Notice Insufficient. 
 
 1229. Must be Signed. 
 
 1230. Time of Taking. 
 
 1231. IMistake in Date of Taking. 
 
 1232. General Requisites. 
 
 1233. Time of Service. 
 
 1234. Time Decided by Com-t. 
 
 1235. Computation of Time and Distance. 
 
 1236. Absence of Statute or Rule. 
 
 1237. Time Not Always Governed by Distance. 
 
 1238. Time Not Fixed by Special Circumstances. 
 
 1239. Except When Unusually Short. 
 
 1240. Statutory Time May be Shortened. 
 
 1241. Objections to Time — When Taken. 
 
 1242. Party Must Show Himself Entitled to Time. 
 
 1243. Service of Notice. 
 
 1244. Insufficient Service. 
 
 1245. Upon Several Co-parties. 
 
 1246. Strict Personal Service Not Required. 
 
 1247. Proof of Service. 
 
 1248. Upon Attorneys in Partnership. 
 
 1249. When Depositions to be Used in Two Cases. 
 1350. Postponement by Consent. 
 
 1251. Effect of Acknowledgment of Service. 
 
 1252. Alteration of Notice. 
 
 1253. Objections Waived. 
 
 1254. Waiver by Presence. 
 
 1255. May be Present Without Waiver, 
 
 1356. Effect of Adjournment Without Consent. 
 
 § 1221. When Required.— When, for any purpose, one 
 of the parties to a suit desires to take the testimony of a 
 witness in writing, to be used upon the trial, in lieu of his 
 oral testimony, whether it be to perpetuate such testimony
 
 NOTICE OF TAKING DEPOSITIONS. 613 
 
 against the possibilities of the death or absence of such wit- 
 ness, or to obtain evidence where the witness is beyond the 
 reach of a siibjjmna testificandum issuing out of the court 
 where the suit is pending, it is necessary to serve the oppo- 
 site party or his attorney with due and timely notice of the 
 taking of such deposition ; otherwise it may be suppressed 
 on motion, or, in any event, will not be permitted to be 
 offered in evidence, unless such notice has been waived by 
 the party against whom the deposition is offered.' And it 
 will be no answer to a motion to suppress a deposition for 
 the want of notice, that the witness has since deceased, and 
 unless the deposition is admitted his testimony will be 
 utterly lost.^ 
 
 § 1222. Generally in Writing. — As a general rule, the 
 notice is required, either by statute or rule of court, to be 
 in wi'iting ; but in the absence of such statute or rule, verbal 
 notice will be sufficient, especially where notice is not de- 
 nied.^ And where a party verbally agreed with the opposite 
 party to the suit upon the time and place of taking deposi- 
 tions, and a deposition was, in pursuance of such agreement, 
 taken by one of the parties in the absence of the other, the 
 party failing to attend was not permitted to repudiate the 
 agreement, and object to the deposition upon the ground 
 that he had not been notified of the taking thereof.* Where, 
 however, the statute required the notice to be in writing, it 
 was held, though the court might order a deposition to be 
 taken during the trial, and upon such notice as to time as 
 seemed reasonable, that, nevertheless, the written notice 
 prescribed by statute could not be dispensed ^vith.* 
 
 § 1223. What to Contain. — As to what the notice shall 
 contain, no precise rule can be laid down which wiU be 
 
 1 Ellis V. Jaszynsky, 5 Cal., 444; Gamett v. Yoe, 17 Ala., 74; Foster v. 
 Smith, 2 Cold. (Tenn.), 474; Briggs v. Green, 33 Vt., 565. 
 2PeiTy V. Siter, 37 Mo., 273. 
 3 Milton V. Rowland, 11 Ala., 732. 
 <Ormsby v. Town of Granby, 48 Vt., 44. 
 SDunning v. Foster, 42 N. H., 165; Cater v. M'Daniel, 21 N. H., 231.
 
 614 PRACTICE AND PLEADING. 
 
 found universall}^ applicable. The matter being regulated 
 by statute, in some of the states the notice is required to 
 contain a much fuller statement than in others. But there 
 is probably no exception to the rule requiring the notice to 
 indicate with reasonable certainty the time and place of 
 taking the depositions, and also the particular actions in 
 which the same are intended to be used.^ 
 
 § 1224. Deemed Sufficient. — Where, however, the no- 
 tice was to take the deposition on a given day, at an hour 
 mentioned, " at the house of W P. (the witness), to be read 
 in evidence in a case now pending in the superior court of 
 law for the said county, wherein I am plaintiff and you are 
 defendant," though the county in Avhich said witness resided, 
 and the suit was pending, was not mentioned, there being 
 no evidence that there was any other " W. P.," or any other 
 suit between the parties than the one on trial, the notice 
 was held sufficient.^ 
 
 § 1225. Clerical Errors. — So where there is a clerical 
 error in writing the name of the place where the depositions 
 are to be taken, if in the opinion of the court such mistake 
 is not misleading, the deposition should be received.^ Espe- 
 cially if there be other descriptive terms in the notice, 
 less hkely to be mistaken.^ So also where the case was 
 wrongly entitled, but not so as to mislead the opposite 
 party's attorney, who knew the case intended by the notice, 
 and knew the witnesses to be examined, and signified his 
 intention to be present at the examination, the notice was 
 held sufficient.^ 
 
 § 1226. Name of Officer. — In general, it is unnecessary 
 to mention the name of the officer before whom the deposi- 
 tion will be taken, except where the statute interposes this 
 requirement ; ^ but where the name of such officer is required, 
 
 1 Kingsbury v. Smith, 13 N. H., 109. 
 
 2 Owens V. Kinsey, 6 Jones, Law (N. C), 38. 
 
 3 Gibson v. Gibson, 20 Pa. St., 9. 
 
 * Pursell V. Long, 7 Jones, Law (N. C), 103. • ' 
 
 SMathew v. Dare, 20 Md., 248. 
 
 s Patterson v. Hubbard, 30 lU., 301.
 
 NOTICE OF TAKING DEPOSITIONS. 615 
 
 or is given merely through an abundance of caution, a mis- 
 take in writing the name, as where it was rendered " Stormer " 
 for " Stermer," it not appearing that there were two justices 
 of those names in tlie county, the notice was held sufficient.^ 
 So where the Christian name of the commissioner was 
 omitted in a notice of a rule for an extraterritorial com- 
 mission, the depositions taken under such commission were 
 held admissible, as there did not appear to be another com- 
 missioner of the same name in the place where the deposi- 
 tions were taken.- And where the name of the commissioner 
 was erroneously substituted for that of the witness, the 
 mistake was held immaterial, inasmuch as in all the other 
 papers the names were correctly inserted, so that the oppo- 
 site party could not be misled.^ 
 
 §1227. Witnesses Need Not All be Named. — Where 
 the notice stated that the depositions of several witnesses — ■ 
 naming them — and others^ were to be taken, and the wit- 
 nesses named did not depose, but the evidence of others was 
 taken at the time and place, this was held no good ground 
 for excluding such depositions.^ In fact, the names of the 
 witnesses are not generally required to be inserted in the 
 notice.^ But in a case arising under a statute requiring the 
 names of the witnesses to be given, a notice declaring an 
 intention to take the depositions of such person or persons 
 as were on a certain day, mentioned in the notice, acting- 
 tellers or cashiers of a certain designated bank, this notice 
 was held not a sufficient identification of the witnesses to 
 be examined.^ 
 
 § 1228. Conditional Notice Insufficient. — Notice that a 
 deposition in chancery proceedings will be taken condi- 
 tionally has been held insufficient to authorize the receipt 
 
 1 County of Green v. Bledsoe, 12 Bl., 267. 
 
 2Kellum V. Smith, 39 Pa. St., 241. 
 
 3 Eastman v. Bennett, 6 Wis., 232. 
 
 ♦ McDugald V. Smith, 11 Ired. (N. C), 576. 
 
 sHeaton v. Findlay, 12 Pa. St., 304; Mumma v. McKee, 10 Iowa, 107. 
 
 6 Pilmer v. Branch of State Bank, 16 Iowa, 321.
 
 616 PKACTICE AKD PLEADING. 
 
 of such deposition in evidence. The intention to take the 
 deposition should be expressed in absolute terms.^ 
 
 § 1229. Must be Signed. — Another feature of the notice, 
 which Avould only be neglected or omitted through careless- 
 ness or negligence, is the signature of the party or attorney 
 by whom it is giv^en. Of course, all that is requisite, where 
 the notice comes directly from the party, is that it shall be 
 signed with his usual signature.- When, however, the notice 
 is given by the attorney, that fact should appear from the 
 signature; but it is of slight importance what additions are 
 made to the name of the ]3erson sending the notice, or what 
 is omitted therefrom which might with propriety be added, 
 so long as the notice is signed, and the party notified under- 
 stands, from the signature, from whom or in whose interest 
 the notice is given.* 
 
 § 1230. Time of Taking. — The notice should state the 
 time of taking the depositions, with reasonable certainty, 
 both as to the day and hour. It is the general practice, 
 however, to fix the time between certain hours of the day, 
 as 8 o'clock in the forenoon and 5 o'' clock in the afternoon^ 
 etc. This latitude as to hours seems necessary, in order 
 that neither party may be taken entirely by sm-prlse, and 
 forestalled of his right to appear and examine any witnesses 
 produced by the other; but as to the day of taking the dep- 
 osition, less latitude is allowable or necessary. In general, 
 the taking should be commenced on a day mentioned in the 
 notice, though it may be continued through several days 
 until finished."* And where the notice was that the deposi- 
 tions would be taken on the 15th, and if not finished on the 
 15th, then on the 16th, and so on to the 18th of the month, 
 it was held that one taken pursuant to such notice on the 
 18th was properly admitted against the objections of the 
 
 1 Crittenden v. Woodruff, 11 Ark., 83. 
 
 2 Bohn V. Devlin, 28 Mo., 319. 
 
 3 Clement v. Brooks, 13 N. H., 92. 
 
 4 Phillips V. Bowen, 2 Pa. St., 20.
 
 NOTICE OF TAKING DEPOSITIONS. ' 617 
 
 opposite party.^ But where the notice was to take the dep- 
 osition on the 20th and 21st, one talven on the 21st was re- 
 jected.- And where the notice in another case stated that 
 the deposition would be taken on the 4th, 5th and 6th days 
 of the month, it was held insufficient because of its indefi- 
 nite statement of the time of taking.* 
 
 § 1231. Mistake in Date of Taking. — Clerical mistakes 
 in stating the day fixed for taking the deposition will be 
 governed by the same liberal rule applied to other casual 
 errors. So where the date fixed by the notice was " Monday 
 the 26th," etc., and the deposition noticed u^as taken on the 
 26th, it was held properly admissible, though the 26th day 
 of the month did not fall on Monday.'* 
 
 § 1232. General Requisites. — In general, a notice of 
 the contemplated taking of depositions, which contains a 
 clear statement of the day and hour of taking, the name of 
 the city, town or \nllage, and the house, office or room, des- 
 ignated by number or other certain description, where they 
 are to be taken, together with the names of the parties be- 
 tween whom the suit is pending, wUl be found sufficient to 
 entitle such depositions to be read in evidence.^ 
 
 § 1233. Time of Seryice. — An important matter to be 
 considered, in determiMng whether a notice of this kind is 
 sufficient, is whether it was served a sufficient time before 
 the day appointed for the taking of depositions. This is, 
 in many of the states, settled definitely by statute ; and 
 where a certain number of days are so prescribed, the depo- 
 sition will not be admissible against the opposite party's 
 objections, if the notice has been given for a shorter time,^ 
 
 §1234. Time Decided by Court.— But all statutes reg- 
 ulating the taking of depositions are not so definite or spe- 
 
 1 Thomas v. Davis, 7 B. Mon., 237. 
 
 2 Jordan v. Hazard, 10 Ala., 231. 
 ^Humphries v. McCraw, 9 Ark., 91. 
 <Rand v. Dodge, 17 N. H., 343. 
 
 ^Bundy V. Hyde, 50 N. H., 116; Alexander v. Alexander, 5 Pa. St., 
 277. 
 'Travis v. Brown, 43 Pa. St., 9; Congdon v. Anderson, 30 HI., 95.
 
 618 PKACTICE AND PLEADING. 
 
 cific. By the employment of general and rather indefinite 
 terms, they throw upon the com*ts the responsibility of 
 deciding, as a question of law, what is a sufficient time for 
 a notice of this kind. As where the party proposing to 
 take the deposition is required to give notice in a reasonable 
 time, to enable the party notified to appear and procure the 
 attendance of counsel,^ the courts are compelled to deter- 
 mine what is a reasonable time, and in reaching a conclu- 
 sion will be governed by the circumstauccs of each particular 
 case.- Even less definite, if possible, is the term " due no- 
 tice ; " and when the statute is not more specific in prescrib- 
 ing the time for which notice is to be given, the determination 
 is left entirely to the discretion of the court or the presid- 
 ing judge thereof.'' 
 
 § 1235. Computation of Time and Distance. — And even 
 where the time is prescribed by statute, it must necessarily 
 be subject to variation, according to the distance of the 
 part^^'s residence from the place of taking the deposition.^ 
 This casts upon the court the duty of deciding between 
 various routes of travel, by which the distance shall be 
 reckoned. Accordingly, it was held in one case where the 
 statute prescribed three days' notice, with an additional day 
 for every twenty miles of travel between the place of serv- 
 ice of the notice and the place of taking, that though by 
 river, which was the most expeditious mode of travel be- 
 tween the two points, the distance was so great that the 
 notice would be for too short a time, yet, as by the usual 
 land route the time was sufficient to allow one day addi- 
 tional to each twenty miles, the notice was held sufficient.^ 
 Judicial construction has even been found necessary to de- 
 termine what was meant by " ten days' notice." In one 
 
 iKimpton v. Glover, 41 Vt., 283; Stephens v. Thompson, 28 Vt., 77; 
 Phelps V. Hunt, 40 Conn., 97. 
 2 Atwood V. Fi-icot, 17 Cal., 37. 
 * Harris v. Brown, 63 Me. , 51. 
 < Porter v. Pillsbury, 36 Me., 278. 
 ^Lindaur v. Mutual Safety Insurance Co., 13 Ark., 461.
 
 NOTICE OF TAKING DEPOSITIONS. 619 
 
 case, it was held to mean notice received, instead of notice 
 sent, ten days prior to the taking.^ In another, it was held 
 that notice on the 5th of the month, of Avhat was to trans- 
 pire on the 15th, was a sufficient compliance with the rule 
 for ten days' notice ; the time being computed by exclud- 
 ing either the first or the last day, which is the common 
 method.^ But where six days were required for thirty 
 miles, notice served on the 21st, for taking on the 26th, was 
 held insufficient.^ Under a rule for taking depositions on 
 twenty days' notice, it was xery justly held that such rule 
 could not apply to cases where, from the distance between 
 the place of trial and the place of taking, it would be 
 physically impossible to travel to and fro between the points 
 within that time/ In the same case, it was held that forty- 
 five days was sufficient time between San Francisco, Cali- 
 fornia, and the state of ISTew Hampshire. 
 
 § 1236. Absence of Statute or Rule. — Where there is 
 no statute or fixed rule allowing so many days for so many 
 miles, the court will inquire more particularly as to the time 
 necessary to travel the distance, by the customary routes 
 and the usual modes of travel, than as to the nmnber of 
 miles composing the distance. Accordingly, it was decided 
 that ten days were sufficient for a notice to take depositions, 
 at a distance of fifteen hundred miles from the court, when 
 it was shown that the entire distance could be traveled in 
 six days.^ So, where the usual mode of travel was by rail- 
 road, the court took judicial notice of that fact, and thirty- 
 six hours being sufficient for the journey, eight days were 
 held amply sufficient for the notice.^ For the same reasons, 
 it was held, in the same state, that nine days' notice of the 
 taking of depositions in the city of New York would suffice 
 
 iGooday u Corlies, 1 Strob. (S. C), 199. 
 
 2 Arnold v. Nye, 23 Mich., 286. 
 
 3 Richardson v. Burlington & M. R. R. R. Co., 8 Iowa, 260 
 ^Gerrishv. Pike, 36 N. H., 510. 
 
 5 Carlisle v. Tuttle, 30 Ala., 613. 
 6 Hipes V. Cocliran, 13 Ind., 175.
 
 620 PRACTICE AXD PLEADING. 
 
 to entitle them to be read in evidence on a trial in the state 
 of Indiana.^ 
 § 1237. Time Not Always Governed by Distance. — 
 
 On the other hand, the mere fact that the distance is short 
 will not ahvaj^s abbreviate the time required for notice, so 
 that the time and distance will bear the same relation to 
 each other as when the distance is longer. In fact, the dis- 
 tance between the two points is only to be considered with 
 reference to its bearings upon the question of prime impor- 
 tance, whether the notice is given in time to enable the 
 party notified to be present and procure the attendance of 
 his counsel. For, however short the distance may be, if the 
 notice is not given in time enough to afford the opposite 
 party an opportunity to attend the taking of the deposition, 
 it will be held insufficient.- 
 
 § 1238. Time Not Fixed by Special Circumstances. — 
 It is not intended to convey the idea that every case is to 
 furnish its own rule, and be governed by the particular cir- 
 cumstances affecting the conduct of the parties. The time 
 wiU not be lengthened or shortened to suit the mere con- 
 venience of the parties, nor will the interposition of unfore- 
 seen obstacles, by which the party notified is prevented 
 from attending the takiug, be considered as entitling him 
 to further time, or as deciding what length of time was 
 necessary in the particular case ; and when a certain day and 
 hour are mentioned in the notice, which as a rule would 
 prove sufficient, the opposite party cannot claim any addi- 
 tional time, because the peculiar exigencies of his situation 
 prevented his attendance.'' 
 
 §1239. Except Wlien Unusually Short. — Yet, when 
 the time is very short, it usually requires an entire absence 
 of impediments to render it sufficient. As, where the no- 
 tice was served during the afternoon of Saturday, by leav- 
 ing it in writing at the residence of the plaintiff, during his 
 
 I Manning v. Gasharie, 27 Ind., 399. 
 2Fantv. mUer, 17 Gratt. (Va.), 187. 
 3 Morrill v. Moulton, 40 Vt., 242.
 
 NOTICE OF TAKING DEPOSITIONS. C21 
 
 absence, with a member of his family, informing him that 
 the deposition would be taken on the following Monday at 
 the hour of 2 o'clock in the afternoon, and the plaintiff re- 
 turned home on Saturday evening and received the notice, 
 but could not attend without his attorne}", who was engaged 
 elsewhere, the deposition was suppressed on account of in- 
 sufficient notice.^ In another case, however, where the 
 notice was served at 8 o'clock in the evening, of the taking 
 of depositions at 8 o'clock on the morning of the next day, 
 the parties both residing in the same city where the deposi- 
 tions were to be taken, and there appearing no special rea- 
 son why they could not attend on the short notice given, it 
 was held sufficient, though the court was in session at the 
 time.- 
 
 § 1240. Statutory Time May Ibe Shortened. — Under 
 the California statute the service of a copy of an order of 
 court, to appear and show cause why a commission should 
 not issue, is sufficient notice, and if the time fixed by the 
 order for the party to appear is less than that prescribed by 
 statute for a notice, it is equivalent to an order shortening 
 the time, which seems to be within the scope of the powers 
 of the court,' 
 
 § 1241. Objections to Time — When Taken.— It is 
 sometimes maintained that any objections to the deposition, 
 on account of the shortness of the time, should be taken be- 
 fore the trial.* In any event they should be interposed be- 
 fore the deposition in question has been read in e\ddence. 
 "Where, however, the objections are raised by the attorney of 
 the party at the taking of the deposition — he appearing 
 for that purpose only, and refusing to cross-examine wit- 
 
 1 Masters v. 'Warren, 27 Conn., 293. 
 
 2McGinnis v. "Wasliington Hall Association, 12 Gratt., 603. 
 
 SDambmann v. White, 48 Cal., 439. But an order abbreviating the 
 statutory period must prescribe the time of notice. Howell v. Howell, 
 5 West Coast Rep., 286. 
 
 * Cornelius v. Partain, 39 Ala., 473.
 
 622 PKACTICE AND PLEADING. 
 
 nesses, there is no doubt but that the objections are timely, 
 and if well taken, the deposition will be rejected.^ 
 § 1 242. Party Must Show Himself Entitled to Time.— 
 
 Before a motion to sup])ress a deposition on the ground of 
 insufficient time can be sustained, the party objecting must 
 show affirmatively that he was fairly entitled to the time of 
 which he claims to have been wrongfully deprived.^ Where 
 there is an agreement between parties, or their counsel, to 
 take depositions on shorter notice than that prescribed by 
 statute, those taken in pursuance of such arrangement may 
 be read in evidence as though they were taken upon notice 
 for the statutory time. But whatever the agreement or 
 understanding between the parties may be, in order to be 
 effective, it must be faithfully carried out. It was accord- 
 ingly held, where an agreement was entered into between 
 counsel to take depositions on one day's notice, and there 
 was a failure to give the notice for the time agreed upon to 
 the proper party, that the testimony taken on behalf of one 
 of the parties was properly ruled out on the trial.^ 
 
 § 1243. Service of Notice. — It is important to know in 
 every instance that the notice was addressed to the proper 
 party, and was properly served. This is one of those no- 
 tices which may with peculiar propriety be served upon the 
 attorney of record of the opposite part}^.'* But when so 
 served, it should be a sufficient time before the taking to 
 give the attorney an opportunity to communicate with his 
 client.^ It has even been held that the notice might be 
 served upon the attorney, after information received that 
 he had retired from the case, and it would be sufficient to 
 charge the opposite party with notice of the taking of the 
 deposition ; ** but this cannot be regarded as justifying the 
 
 1 Beasley v. Downey, 10 Ired., 284. 
 
 2 Adams v. Peck, 4 Iowa, 551. 
 
 3 Bohr V. Steamboat Baton Rouge, 7 Sm. & M., 715. 
 
 4 Bailey v. Wright, 24 Ark., 73; Hunt v. Crane, 33 Miss., 669. 
 5 Hunt V. Crane, 33 Miss., 669. 
 
 «Herrin v. Libbey, 36 Me., 350.
 
 NOTICE OF TAKING DEPOSITIONS. 623 
 
 service of notice upon one, merely because of liis antecedent 
 engagement as attorney in the case, where he has not only 
 retired, but had the fact of his retirement properly entered 
 upon the records of the court. The only instance in which 
 it would be proper to serve such a notice upon an attorney, 
 after the cessation of his active connection with the suit, 
 would be where he still remained the attorney of record, 
 awaiting the substitution of another in his stead. It is not 
 essential at all times that the attorney of record should be 
 served. As where the notice of retainer and the answer 
 were filed by one attorney, and the trial was conducted 
 throughout by another, who had never been formally sub- 
 stituted as attorney of record, the notice was held properly 
 served upon the latter.^ 
 
 §1244. Insufficient Service. — Where the notice was 
 served upon one, neither an attorney of record in the case, 
 nor an adverse party, the deposition was held inadmissible.^ 
 Service upon the attorney is regarded as sufficient, only 
 when there is no statute or rule of court requiring personal 
 service upon the party. It was accordingly held, where the 
 rules provided for service upon the attorney, except where 
 the statute or " these rules " directed otherwise, and there 
 was an old rule requiring the notice to be served upon the 
 opposite party, that the notice served upon the attorney was 
 insufficient.^ 
 
 § 1245. Upon Several Co-parties. — As to the manner 
 of serving several co-parties, interested adversely to the 
 party giving notice, the authorities are not in perfect accord, 
 it being held that service upon one of such parties will be 
 sufficient notice to all,* while, on the other hand, it has been 
 decided that a deposition cannot be offered in evidence 
 against one of two joint defendants who has not been noti- 
 
 iKing V. Ritchie, 18 Wis., 554. 
 
 2 Brown v. Ford, 52 Me., 479. 
 
 3 Fleming v. Beck, 48 Pa. St., 309. 
 
 4Spaulding v. Ludlow, etc., Mill, 36 Vt., 150; Ellis v. Lull, 45 N. H., 
 419.
 
 624 PKACTICE AND PLEADING. 
 
 fied, merely because his co-defendant has been duly served 
 ■with notice of the taking.' In the case of Spanlding v. 
 Ludlow, etc., Mill,- the rule is declared with the quahfication 
 that good faith should be used in selecting the one to be 
 served, so that the interests of all may be protected. The 
 case of Ellis v. Lull '■' is decided under a statute expressly 
 providing that service shall " be upon the opposite party, or 
 one of them.'''' It may be held, where the adverse parties 
 sustain toward each other relations of a peculiarly intimate 
 character, as that of husband and wife, partnership, etc., 
 that service upon one is equivalent to service upon both or 
 all ; but it is difficult to understand why the mere fact that 
 several persons have been joined as parties defendant in the 
 same suit should establish such a close connection between 
 them that they are supposed to communicate to each other 
 every fact in relation to the controversy coming to their 
 knowledge. The depositions to be taken may be offered as 
 evidence of facts of very little or no interest whatever, to 
 the party notified, while the evidence thus produced would 
 be fatal to the defense of the party who was left in ignorance 
 of taking them. But when there has been a failure to notify 
 one of several joint plaintiffs or defendants, it seems quite 
 clear that he alone can urge such failure in support of an 
 objection to the deposition when offered in evidence.^ 
 
 §1246. Strict Personal Service Not Required. — Gen- 
 erally, notices of this kind do not require strict personal 
 'service, either upon the party or his attorney. Even where 
 the statute has not prescribed the mode of service otherwise 
 than by personal delivery, it is sometimes held, on the au- 
 thority of analogous cases, that it may be properly served 
 by leaving it with some one at the place of business or resi- 
 dence of the party or his attorney.^ - But where the statute 
 
 1 McConneU v. Stettinius, 7 lU., 707. 
 -Supra, § 1245. 
 ^ Supra, % 1245. 
 
 ^ Glenn v. Glenn, 17 Iowa, 498 ; infra, % 1249. 
 
 5 Goodloe V. Bartlett, 5 McLean, 186; Prather v. Pritchard, 26 Ind., 65; 
 Merrill v. Dawson, 1 Hemp., 563.
 
 NOTICE OF TAKING DEPOSITIONS. 025 
 
 required that notice should be " served on the adverse party 
 or his attorney, as either may be nearest," etc., it was hekl 
 not to be a sufficient compliance to leave such notice at the 
 usual place of abode of either, with any one other than 
 the party or his attorney.^ 
 
 §1247. Proof of Service. — The best evidence, and 
 that, in fact, which is generally prescribed, either by statute 
 or rule of court, of the service of notice, is the notice itself, 
 or a properly authenticated copy thereof, attached to and 
 inclosed with the deposition,- and the deposition must show 
 upon its face that it was taken at the time and place men- 
 tioned in the notice.^ Parol proof, however, of the service 
 of notice has been held sufficient.^ 
 
 § 1248. Upon Attorneys in Partnership. — When the 
 notice is addressed to attorneys-at-law by their firm name, 
 they appearing by the record to be attorneys in the case, it 
 is not necessary that the return on the notice, where it is 
 served by the sheriff, should contain the statement that 
 they are such attorneys, or that they were served in that 
 capacity. And when the notice appears to have been de- 
 livered to a person bearing the same name as one of the 
 partners, it will be sufficient. The court will take judicial 
 notice that they are the attorneys of record, and it will be 
 presumed that they were notified of the intention to take 
 depositions in the capacity in which they filed the declara- 
 tion. It will also be presumed that, in making the service, 
 the officer did his duty, and consequently that the person 
 served as a member of such firm was one of the partners.^ 
 
 § 1249. When Depositions to he Used in Two Cases.— 
 Where notice was given of the intention to use the deposi- 
 tion to be taken, in two separate actions, pending at the 
 same time in the same court, it was held sufficient to author- 
 
 iCarrington v. Stimson, 1 Curtis, Ct. Ct., 437. 
 
 2 Carlton v. Patterson, 29 N. H., 580. 
 
 3 Young V. Mackall, 4 Md., 362. 
 ♦Pickard v. Polhimus, 3 Mich., 185. 
 5 Reese v. Beck, 24 Ala., 051. 
 
 40
 
 G26 PRACTICE AXD PLEADING. 
 
 ize the reading of the deposition in both suits ; ^ but where 
 there are different parties to the suits, though both are con- 
 cerning the same subject-matter, the deposition will not be 
 received in evidence against a party who has not been noti- 
 fied, and had an opportunity to be present and cross-examine 
 the witnesses." Where, however, the testimony is taken under 
 a notice entitled in two actions, between the same parties, 
 it will be presumed, in the absence of any showing to the 
 contrary, that tliey were upon the same matter, and that no 
 substantial rights have been affected by giving one notice 
 of taking depositions for both cases.' 
 
 § 1 250. Postponement by Consent. — As important as is 
 the observance of the day and hour indicated by the notice, 
 the deposition may be taken on a subsequent day, or be- 
 tween other hours, when both parties appear, either in per- 
 son or by attorney, at the time indicated, and consent to a 
 • postponement; but in order that the deposition may be 
 admissible in evidence against objections from the opposite 
 ]jarty, the certificate of the officer before whom it was 
 taken, that the examination was postponed by consent, is 
 necessary.^ 
 
 § 1251. Effect of Acknowledgment of Service. — Even 
 where, by statute or rule of court, a certain time is fixed 
 for the notice, such time may be abbreviated by consent of 
 the parties or their counsel, by a written acknowledgment 
 of due service indorsed upon the notice or interrogatories, 
 or written upon a separate paper, which indicates with cer- 
 tainty the suit in which the deposition is to be used.^ So, 
 where the notice was sent by mail, addressed to the attorney 
 of the opposite party, and in due time was returned bearing 
 an admission of notice indorsed thereon, which was acted 
 
 1 Scott V. Bullion Mining Co., 2 Nev., 81. 
 2 Rutherford v. Geddes, 4 Wall., 220. 
 3Laithe v. McDonald, 7 Kan., 254. 
 * Lewin v. Dille, 17 Mo., 64. 
 
 ^CheiTjv. Baker, 17 Md., 75; Scott v. Scott, id., 78; Atwood v. Fricot, 
 17 Cal., 37; Moore v. Gammel, 13 Tex., 120.
 
 NOTICE OF TAKING DEPOSITIONS. 627 
 
 upon under the belief that it was signed by authority of the 
 attorney, it was held that a motion to suppress the deposi- 
 tion for the want of notice, it appearing that the attorney 
 was absent on receipt of the notice, and the same was 
 acknowledged by his son and law partner, was properly 
 overruled b}'' the trial court.' 
 
 § 1252. Alteration of Notice. — The deposition may be 
 open to objection on account of alterations made in the 
 notice after service ; but where an alteration appears on the 
 face of the notice attached to the deposition, it will not be 
 presumed to have been made after service.^ 
 
 § 1253. Objections Waived. — All objections, however, 
 to the notice for insufficiency of statement, defective service, 
 or even the entire absence of notice, may be waived by the 
 party entitled thereto, by appearance in person or by 
 attorney, at the taking of the deposition, and cross-examina- 
 tion of the witnesses, without raising the objection then and 
 there.^ In any event, the objection that no notice was 
 served, cannot be raised for the first time in the appellate 
 court/ So, the fifing of cross-interrogatories, without ob- 
 jection, has been held to be a waiver of objections to the 
 notice, on account of irregularities, whether relating to its 
 contents or manner of service.* 
 
 § 1254. Waiver by Presence. — The mere presence of 
 the party or his attorney, at the taking of the deposition, 
 seems in some instances to have been taken as a sufficient 
 Avaiver of the objection that notice was entirely wanting." 
 
 1 Brown v. Clement, 68 111., 192. 
 
 2 Davis V. Davis, 48 Vt., 502. 
 
 3 Aicardi v. Strang, 38 Ala., 326; County of Greene v. Bledsoe, 12 111., 
 267; McCormack v. Irwin, 35 Pa. St., Ill; Nevan v. Roup, 8 Iowa, 
 207; Jones v. Love, 9 Cal., 68; Doe v. Brown, 8 Blackf., 443; Caldwell 
 V. McVicar, 9 Ai-k., 418. 
 
 *DiU V. Camp, 22 Ala., 249. 
 
 5 Aicardi v. Strang, 38 Ala., 326. 
 
 6 Milton y. Eowland, 11 Ala., 732; State v. Bassett, 33 N. J. L., 26; 
 Crooker v. Appleton, 25 Me., 131; Pres't, etc., of Connersville v. Wood- 
 leigh, 7 Blackf., 102.
 
 628 PRACTICE AND PLEADING. 
 
 Where tlie appearance of the party, against whom the 
 deposition is to be used, is certified to by the officer in such 
 a manner as to leave no doubt that he was present, acqui- 
 escing in the taking of the same, this would probably be re- 
 garded as sufficient evidence of a waiver; but where his 
 presence is noticed in the certificate, in connection with the 
 further fact that he refuses to recognize the validity of the 
 examination, by word or deed, such appearance can hardly 
 be construed into a waiver of objections to antecedent 
 irregularities. 
 
 § 1255. May he Present Without Waiver. — Even where 
 the attorney appearing for the party entitled to notice cross- 
 examines the witnesses produced by his adversary, this of 
 itself will not amount to a waiver of the objection that notice 
 was not given a sufficient time before taking the deposition, 
 when the attorney appearing does so under protest and 
 with an express reservation of the right of his client to ob- 
 ject to the deposition at the trial, for the want of notice. The 
 time given is not intended alone, for going and coming be- 
 tween the residence of the party notified and the place of 
 caption, but for consultation and preparation. The party 
 is not obliged to forbear attending the examination. It is 
 impossible for him to say whether the deposition will be ad- 
 mitted or not, against his objection. It may turn out, during 
 the taking of the deposition, that notwithstanding the short- 
 ness of the notice, it is sufficient to enable him to cross- 
 examine intelligently, so that he may not desire to object. 
 But having reserved his rights, by a formal objection to the 
 taking of the deposition, he forfeits none of them by 
 remaining during the examination, and even cross-examining 
 the witnesses.^ 
 
 § 1256. Effect of Adjournment Without Consent.— It 
 was held in a case where the party notified was present with 
 his attorney at the hour named in the notice, and waited 
 until he was informed by the officer that the hour had ex- 
 
 iHunt V. Lowell, etc., Co., 1 AUen, 343.
 
 NOTICE OF TAKING DEPOSITIONS. 629 
 
 pired, when he discharged his attorney and retired, the 
 sender of the notice having telegraphed for an adjournment 
 to a later hour, and, arriving after the adjournment, notified 
 the opposite party of the hour to which the taking was ad- 
 journed, that such party failing and refusing to appear in 
 recognition of the validity of the second notice, might ob- 
 ject to the admission of the deposition at the trial, and 
 such objection would be sustained.^ 
 
 1 Hennessey v. Stewart, 31 Vt., 486.
 
 630 PEACTICE AJSTD PLEADING. 
 
 YI. Notice to Produce Books and Papers. 
 
 § 1257. General Remarks. 
 
 1258. Necessary to the Admission of Secondary Evidence. 
 
 1259. Demand Before Suit Not Sufficient. 
 
 1260. Necessary When Pajier Recorded. 
 
 1261. Rule Same in Criminal Prosecution. 
 
 1262. Exceptions. 
 
 1263. In Action of Trover — Unnecessary. 
 
 1264. Assumpsit — Unnecessary. 
 
 1265. Debt on Bond — Unnecessary 
 
 1266. Action of Covenant — Unnecessary. 
 
 1267. Against Constable for Failing to Make Return— Unnecessary. 
 
 1268. Papers Filed, or Mentioned in Pleadings. 
 
 1269. Papers in Court. 
 
 1270. Paper Must be Traced to Opposite Party. 
 
 1271. Proof of Possession from Ckcumstances. 
 
 1272. Papers Under Control of Adversary. 
 
 1273. Privity Must be Clearly Established. 
 
 1274. Paper Passed Out of Party's Possession. 
 
 1275. May Impeach Copy. 
 
 1276. Not by Introduction of Original. 
 
 1277. Secondary Evidence, Even When Possession Disproved. 
 
 1278. Must be Proved When Pi-oduced. 
 
 1279. Need Not be Offered When Produced. 
 
 1280. Inference Drawn from Failure to Produce. 
 
 1281. Notice to Produce Notice — Unnecessary. 
 
 1282. Contents of Notice. 
 
 1283. Should Not be Too General. 
 
 1284. Generally in Writing. 
 
 1285. Renewal Unnecessary in Case of Continuance. 
 
 1286. Time of Notice. 
 
 1287. Served at Trial, Too Late. 
 
 1288. Party Not Requu-ed to Incur Expense. 
 
 1289. Original Not in Existence. 
 
 1290. Opposite Attorney in Possession of Paper. 
 
 1291. One of Several Joint Parties. 
 
 1292. Personal Service Not Indispensable. 
 
 §1257. General Remarks. — When a fact to be estab- 
 lished on the trial is evidenced by a written or printed docu- 
 ment, whether it be a book, memorandum of agreement, 
 promissory note or specialty, the rule requiring the best at-
 
 NOTICE TO PRODUCE BOOKS AND PAPERS. 631 
 
 tainable evidence of the matter in issue is applied, and the 
 original of the writing must be offered if obtainable. It is 
 in general only when the original is beyond the reach of the 
 party offering the evidence, that a copy, or parol testimony 
 of its contents, may be substituted for the highest grade of 
 evidence.' It is not alone the loss or destruction of the' docu- 
 ment that will place it beyond the reach of tlie party de- 
 siring to offer it. The opposite party may have it in his 
 possession, in which event a notice to him to produce the 
 instrument at the trial will have the effect to bring: it to 
 light, or, failing in this, will entitle the party calling for the 
 document to introduce secondar}'- evidence of its contents.^ 
 § 1258. Necessary to the Admission of Secondary Evi- 
 dence. — Generally, secondary evidence of the contents of 
 books and papers in the hands of the opposite party cannot 
 be given, without reasonable notice to produce the originals. 
 As where, in an action on account, defendant offered in evi- 
 dence a receipt, which plaintiff testified was originally at- 
 tached to a letter, a sworn copy of which he offered in 
 evidence without a previous notice to produce the original, 
 it was held error to receive such secondary evidence.^ So 
 Avhere suit was brought upon an agreement, the written 
 memorandum of which was in the hands of the other party, 
 a copy of such agreement was held incompetent to prove its 
 contents without a previous notice to produce the origi- 
 nal.* So, also, in case of a lost letter written by the oppo- 
 
 1 United States v. Winchester, 2 McLean, 135; Potier v. Barclay, 15 
 Ala., 439; Anderson Bridge Co. v. Applegate, 13 Ind., 339; Williams v. 
 Benton, 12 La. An., 91 ; Farmers' & Merchants' Bank v. Lonergan, 21 Mo., 
 46; Grimes r. Fall, 15 Cal., 63; Commonwealth v. Emery, 2 Gray, 80; 
 Foster v. Newbrough, 58 N. Y., 481 ; Garland v. Cunningham, 37 Pa. St., 
 228; Mai-low v. Marlow, 77 111., 633. 
 
 2Bronson v. Kensey, 3 McLean, 180; Auger, Steel, etc., Co. t'. Whit- 
 tier, 117 Mass., 451; Anon., 1 Nott &, McCord, 604; McKillip v. Mcll- 
 henny, 4 Watts, 317; Gates v. Winter. 3 T. R., 306; United States r. 
 Winchester, 2 McLean, 135; Harris r. Wliitcomb, 4 Gray, 433; Ander- 
 son V. Applegate, 13 Ind., 339; Marlow v. Mai-low, 77 111., 633. 
 
 SMilUken v. Barr, 7 Pa. St., 23; Fosters. Newbrough, 58 N. Y., 481. 
 
 < Garland v. Cunningham, 37 Pa. St., 228.
 
 632 PEACTICE AND PLEADING. 
 
 site party, it was lield incumbent upon the party seeking to 
 prove its contents, to give notice to the writer to produce 
 his letter book, supposing the letter to be a duplicate orig- 
 inal.^ 
 
 §1259. Demand Before Suit Not Siifflcient.— A de- 
 mand made before suit, upon the party in possession of the 
 document, which the party making demand wishes to offer 
 in evidence, will not be treated as equivalent to a notice to 
 produce, even where the refusal to furnish it is the immediate 
 cause of the suit, except where the action is for the conver- 
 sion of an instrument of some value and the pleadings 
 allege that it is in the possession of the defendant.^ 
 
 §1260. Necessary When Paper Recorded. — Neither 
 will the mere fact that the paper has been recorded excuse 
 notice to produce, so as to admit secondary evidence of its 
 contents, in the first instance, where the record has been 
 destroyed.^ However, the general rule as to notice to pro- 
 duce would not apply to recorded instruments, where, upon 
 proper preliminary proof that the party had made due 
 search and inquiry, and was unable to produce the original, 
 he is permitted to use a certified copy instead.* 
 
 § 1261. Rule Same in Criminal Prosecution. — But the 
 rule is applicable to criminal prosecutions, substantially the 
 same as to civil cases; though a different view of the law 
 seems to have obtained with the court in the decision of 
 one case.^ There it was held that notice to produce was not 
 necessary, in order to introduce a copy of the original paper, 
 when such original was in the hands of the accused, and 
 would be offered by the state against him ; the reason as- 
 signed for this holding was that there was no jpoioer in the 
 court to comjpel the accused to produce a j;aj?6/' which might 
 he evidence against himself. The best considered cases, how- 
 
 1 Dennis v. Barber, 6 Serg. & R., 430. 
 
 -'Mullerv. Hoyt, 14 Tex., 49; Lathrop v. Mitchell, 47 Ga., 610. 
 
 aMui-chison v. McLeod, 2 Jones (N. C.) L., 339. 
 
 4 Bowman v. Wettig, 39 111., 416. 
 
 estate V. Gurnee, 14 Kan., 111.
 
 NOTICE TO PRODUCE LOOKS AND PAPERS. 633 
 
 ever, do not rest the rule upon the power of the court to 
 enforce obedience to the notice. The mere service of a 
 notice by the opposite party does not ordinarily render a 
 litigant subject to the compulsory process of the court, as 
 though he had disobeyed a subpoena. The notice required 
 is not provided as a means of compelling the production of 
 books and papers in cases of either civil or criminal cogni- 
 zance.^ Its purpose seems to be to enable the party notified, 
 at his option, to produce the best evidence of the matter in 
 dispute, or to submit to having it decided against him upon 
 evidence secondary in its character, and which ma}^ be dis- 
 colored to his prejudice. The application of this rule to 
 criminal cases is advantageous, rather than otherwise, to the 
 accused. It was accordingly held, where defendant was 
 accused of forging a draft, and he was not notified to pro- 
 duce the same, that secondary evidence of its contents was 
 inadraissible.- 
 
 § 1262. Exceptions. — Where, however, the prosecution 
 is for the theft of the instrument, or for otherwise obtaining 
 unlawful possession thereof, notice to produce is not neces- 
 sary in order to pave the way for the introduction of sec- 
 ondary evidence, offered to prove the identity or value of 
 the stolen instrument, or for any other purpose material 
 to the issue.^ But the reason for the exception in such cases 
 is not that the court forbears to compel the accused to pro- 
 duce documentary evidence against himself, but is because the 
 nature of the prosecution informs the defendant sufiiciently 
 that the facts which can be best proved by the production 
 of the paper in question will be offered in evidence against 
 him.* So far from being decided on the 'ground of exemp- 
 
 1 JVIilliken v. Ban-, 7 Pa. St., 23; Greeiileaf on Ev., § 560; 2 Tidd'sPr., 
 802. 
 
 2 The Queen v. Elsworthy, 1 Cr. Cas., 103 ; Le Maxchand's Case, 1 Leach 
 Cr. Cas., 336, note a; Layer's Case, id.; Rex v. Haworth, 4 Carr. & 
 Payne, 234; Commonwealths. Goldstein, 114 Mass., 272. 
 
 3Com. V. Essinger, 1 Binney (Pa.), 273; McGinnis r. State, 24 Ind., 
 500. See, also, Pendleton v. Com., 4 Leigh (Va.), 694; Aickles' Case, 1 
 Leach Cr. Cas., 330. 
 
 * See cases cited supixj.
 
 634 PEACTICE AND PLEADING. 
 
 tion from self-criminating testimony, those cases are so de- 
 cided in pursuance of a principle common to cases of both 
 civil and criminal cognizance. That where, from the nat- 
 ure of the action or prosecution, the defendant is apprised 
 of plaintiff's intention to charge him with the possession of 
 a certain writing, or where the declaration or indictment 
 gives him notice to be jjreparcd to produce a particular in- 
 strument, if necessary to contradict plaintiff's evidence, no 
 further notice to produce need be given before secondary 
 evidence may be received.' 
 
 § 1263. In Action of Trover — Unnecessary. — Where 
 the action was trover for a bond, alleged to be in the posses- 
 sion of defendant, plaintiff was allowed to give parol evidence 
 of its contents to prove a general description, without giv- 
 ing notice to produce the original, for the reason that suffi- 
 cient notice was given by the nature of the action.- 
 
 § 1264. Assumpsit — Unnecessary. — So, also, in as- 
 sumjpsit against the proprietor of a stage-coach, in whose 
 possession certain promissory notes were alleged to have 
 been last seen, upon his implied promise to carry such notes, 
 secondary evidence, descriptive of the notes, was admitted 
 in the absence of any notice to produce.^ 
 
 § 1265. Debt on Bond — Unnecessary. — And where in an 
 action of debt on a bond given by defendants, one of whom 
 was a collector, to a former treasurer, conditioned that such 
 collector " should well and truly collect all the taxes as- 
 sessed," etc., and pay the same over to the treasurer, it was 
 denied at the trial that the warrant for the collection of 
 
 iHoweU V. Huyck, 2 Abb. App. Dec. (N. Y.), 423; People v. Holbrook, 
 13 Johns., 90; 2 Phil, on Ev., 539 (Cow, & H, & Ed. notes); State v. May- 
 berry, 48 Me., 218; Nealley v. Greenough, 25 N. H,, 325. 
 
 -'Howe V. Hall, 14 East, 274; Scott v. Jones, 4 Taunt., 865; Hays v. 
 Eiddle, 1 Sandf., 248; McClean v. Hertzog, 6 Serg. & R., 154; Rose v. 
 Lewis, 10 Mich., 483; Ross v. Bruce, 1 Day, 100, 
 
 3 Jolley V. Taylor, 1 Camp,, 143. And where the same form of action 
 was Ijrought to recover the amount of an attorney's bill, it was held 
 that an unsigned copy might be read in evidence to prove the contents 
 of tlie original delivered to defendant. Colling v. Ti-eweek, 6 B. & C, 
 394. Tliis seems extending the doctrine of the text a great way.
 
 NOTICE TO PRODUCE BOOKS Ai^D PAPERS. 635 
 
 taxes referred to the tax list, and also that the list was 
 signed by the assessor, as required by law. The court held 
 that, as the papers were in the hands of the defendant, and 
 these were proper matters of defense, the defendant must 
 have understood from the issues raised by the pleadings 
 that they would come in question, so no notice was necessary.^ 
 
 § 1266. Action of Covenant — Unnecessary. — So in an 
 action of covenant, where the pleadings allege the posses- 
 sion of promissory notes or other papers essential to be used 
 on the trial, notice to produce them is unnecessary.- 
 
 § 1267. Against Constable for Failing to Make Re- 
 turn — Unnecessary. — It has also been held that in a pro- 
 ceeding before a justice of the peace, against a constable 
 for faihng to return an execution, parol evidence of the 
 contents of the execution should be admitted without pre- 
 vious notice to the constable to produce the original.* 
 
 §1268. Papers B'iled, or Mentioned in Pleadings. — 
 Where defendant in ejectment filed in the case a copy of a 
 title bond, it was presumed that the original was in his pos- 
 session, and in court, and on his failing to produce it, the 
 court decided that plaintiff might read the copy in evidence 
 without notice to produce the original.* But where the bill 
 of particulars contained an item, " draft on J. A.," this was 
 held not sufficient to dispense with notice to produce such 
 draft, and permit defendant to offer secondary evidence of 
 its contents, when the plea did not apprise plaintiff that he 
 was charged Avith its possession.'^ But when, from the nat- 
 ure of the action, the defendant has notice that he is charged 
 with the possession of the document, notice will be unnec- 
 essary.^ 
 
 iKellar v. Savage, 20 Me., 199. See Fii-st National Bank v. Priest, 50 
 ni., 321, and compai-e with Weaver v. Crocker, 49 lU., 4G1. 
 
 2 Hardin v. Kretsinger, 17 Johns., 293; Hammond v. Hopping, 13 
 Wend., 505; Dana v. Conant, 30 Vt., 246. 
 
 3 Hart V. Robinet, 5 Mo., 11. 
 
 * Griffin v. Sheffield, 38 IVIiss., 359. 
 
 5 Dean v. Border, 15 Tex., 298. 
 
 <- Howell V. Huyck, 2 Abb. App. Dec. (N. Y.), 423.
 
 636 PKACTICE AND PLEADING. 
 
 § 1269. Papers in Court. — So it was held, where the 
 papers to be offered in evidence were in court, that the 
 party having them in possession might be requu-ed to deliver 
 them to the opposite party on demand, without any previous 
 notice to produce, and if not delivered, secondary evidence 
 would be admissible.^ The object of this notice is not, as 
 has been supposed in some instances, to enable the party 
 notified to prepare counter evidence with which to rebut 
 that which is produced in response to the notice, for neither 
 party is required to inform his adversary of the evidence by 
 which he proposes to prove his case. I^otice is required for 
 the purpose of giving the party notified sufficient time to 
 produce the paper if he will.^ 
 
 § 1270. Paper Must he Traced to Opposite Party.— 
 After the notice has been duly served and the original docu- 
 ment is not forthcoming, before secondary evidence can be 
 offered it becomes necessary to trace the original into the 
 hands of the opposite party or under his control ; but sHght 
 evidence of such possession or control will generally be 
 sufficient.^^ As where the document called for was a written 
 contract, and there Avas evidence tending to prove that it 
 was delivered by plaintiff's broker to his clerk, to be sent, in 
 the regular course of business, to defendant's broker, and 
 the clerk could not say positively that he had sent it, but 
 testified that if it came to his hands he had sent it to de- 
 fendant's broker, this was held sufficient evidence of the 
 defendant's possession of the writing to warrant the intro- 
 duction of secondary evidence of its contents, in the absence 
 of the original, after due notice to produce.* 
 
 § 1271. Proof of Possession from Circumstances. — So 
 Avhere the defendant desired to prove the contents of a 
 deed, shown to have been in possession of plaintiff's father 
 
 iBoatright v. Porter, 33 Ga., 130; Danar. Boyd, 2 J. J. Marsh., 587; 3 
 Tidd's Prac, 804, 
 2 See posf, §1286. 
 
 3 1 Wharton on Ev., § 154, and cases cited in note 6. 
 4Robb V. Starkey, 2 Carr. & Kir., 143.
 
 NOTICE TO PKODFCE BOOKS AND PAPEKS. G37 
 
 during his life-time, and, since the death of the father, plaint- 
 iff had always had free access to the papers left by the 
 deceased ; after a notice duly served upon the plaintiff to 
 produce the deed, and failure either to produce the same or 
 satisfactorily account for its absence, secondary evidence of 
 its contents was admitted.' 
 
 § 1272. Papers Under Control of Adversary. — It is not 
 absolutely necessary to trace the paper to the possession of 
 the opposite party in order to give full effect to a notice to 
 produce the same. It is sufficient to show such privity be- 
 tween the opposite party to the suit and the one shown to 
 have possession of the document. As where the action was 
 against the owner of a vessel, and the writing is traced to 
 the possession of the captain ; - or where the person in pos- 
 session had a pecuniary interest in, though he was not a 
 party to the suit;-' or where the action was against joint 
 owners, and the proof was that a bill had been rendered to 
 one of them, and last seen in his possession ; ■• in either of 
 these, or similar cases, secondary evidence would be admis- 
 sible upon a failure to produce the original at the trial, after 
 notice. The rule wiU apply in the same manner where the 
 paper called for is in the possession of the opposite attor- 
 ney ; and he may be required, in civil cases, to answer under 
 oath, whether he has the paper in court.* And though an 
 attorney may not be compelled to surrender a paper in- 
 trusted to him by his client in confidence, still he may be 
 required to testify as to its existence, in order to lay a 
 foundation for secondary evidence by proving the sufficiency 
 of the notice.'' And even where it is in the hands of a 
 third person, who is outside the jurisdiction of the court, 
 this circumstance alone will not be sufficient either to ex- 
 
 1 Jackson v. Woolsey, 11 Johns., 44G. 
 2Baldney v. Ritchie, 1 Stark., 338., 
 3 Norton v. Hey wood, 20 Me., 359. 
 <Eang V. Lowry, 20 Barb., 533. 
 
 5 Morgan v. Jones, 24 Ga., 155. 
 
 6 Brandt v. Klein, 17 Johns., 335; Morgan v. Jones, 24 Ga., 155.
 
 638 PRACTICE AND PLEADING. 
 
 cuse notice or to exclude secondary evidence after notice to 
 
 produce, which is reasonable under all the circumstances.^ 
 
 § 1273. Privity Must be Clearly Established.— Where 
 
 the books or papers are in the hands of any one other than 
 the opposite party himself, the privity between the two 
 must be clearly made out before a notice to produce will 
 warrant the introduction of evidence of an inferior degree. 
 As, where a mortgagee of a vessel is sued jointly with sev- 
 eral of the owners, for supplies, notice to him to produce 
 books and papers in the possession of the ship's husband 
 will not authorize secondary evidence of their contents.^ 
 So, in an action of trespass for false imprisonment, where 
 the paper was shown to be in the hands of the person under 
 Avhom defendant justified, it was held that there was not 
 such privity between him and defendant that notice to the 
 latter to produce the paper would let in secondary evidence 
 of its contents." And where the paper is in the possession 
 of one who occupies the position of a stakeholder between 
 the part}^ notified and another, notice to produce will not 
 be available.* 
 
 § 1274. Paper Passed Out of Party's Possession. — The 
 party notified may give e\'idence that the document has 
 lawfuU}^ passed out of his possession, and it will then de- 
 volve upon the court to determine whether secondary evi- 
 dence is admissible.'' 
 
 § 1275. May Impeach Copy. — The party notified, who 
 fails or refuses to produce the original, is not thereby pre- 
 cluded from disputing the correctness of the copy." In the 
 case cited, where this was so held, Cajsipbell, C. J., in ren- 
 dering the opinion of the court, said: "The refusal of a 
 
 1 Shepard v. Giddings, 22 Conn., 282. 
 2Birbeck v. Tucker, 2 Hall (N. Y. City), 121. 
 3 Evans v. Sweet, Ey. & M., 83. 
 4Pan-y v. May, 1 Mood. & Rob., 279. 
 
 5 Harvey v. Mitchell, 2 Mood. & Rob., 366; Best v. Osbom, 1 Carr. & 
 P., 632. 
 6 Moulton V. Mason, 21 Mich., 364.
 
 NOTICE TO PEODUCE BOOKS AXD PAPEES. 639 
 
 party, after reasonable notice, to produce a document in his 
 possession, which the adverse party is entitled to introduce 
 in evidence, * * * cloes not dispense with such proof 
 as is attainable, and does not allow the tenor of the instru- 
 ment to be made out by anything less than satisfactory evi- 
 dence of all that is essential. There is no rule which pre- 
 vents the contradiction of such secondary evidence, or whicli 
 will allow a document to be conclusively proved by anj'thing 
 that a party may see fit to affirm to be a copy. Dispensing 
 with primary evidence only changes the degree of evidence 
 required, but in no way allows a case to be made out with- 
 out proof, or prevents counter proof." ^ 
 
 § 1276. ^^ot \)j Iiitroductiou of Original. — But though 
 the party served with notice is at liberty to controvert the 
 secondary evidence offered in substitution for the original 
 writing which he withholds, he will not be permitted to in- 
 troduce the original in furtherance of that object. Having 
 refused to furnish the document when called for, he cannot 
 afterwards offer it in his own behalf.- 
 
 § 1277. Secondary Evidence, Even When Possession 
 Disproved. — Although the party may show that he was not 
 in possession of the paper, when served, as a reason why 
 his failure to produce it should not open the way for evi- 
 dence of an inferior degree, yet so intolerant are the courts, 
 of duplicity, that it has been held where he did not deny 
 possession of the writing when served with notice, nor dis- 
 close its whereabouts when known to him, that secondary 
 evidence would be admitted, though on the trial he denied 
 possession of the paper.-^ 
 
 § 1278. Mnst be Proved When Prodnced.— Where the 
 original paper is produced in response to the notice, it would 
 seem that this was a sufficient admission by the party pro- 
 
 1 But it -will not be necessary to call subscribing witnesses to prove tlie 
 execution of an instrument, the contents of which are proved by second- 
 ary evidence. Cook v. Transwell, 3 Moore, R., 513. 
 
 2 Doon V. Donalier, 113 Mass., 151. 
 
 3 Sinclair v. Stevenson, 1 Carr. & P., 583.
 
 GiO PKACTICE AND PLEADING. 
 
 ducing it, of its identity with the instrument called for ; but 
 should its execution or genuineness be disputed by the party 
 from whose possession it is thus taken, it should be proved 
 as any other piece of documentary evidence,^ except where 
 it is an instrument under which the party holding it claims 
 a beneficial estate.^ "Were the rule otherwise, one who hap- 
 pened to be in possession of a spurious document, which, in 
 the hands of another, might be used to his prejudice in a 
 legal proceeding, instead of enjoying any degree of secu- 
 rity from the possession of the dangerous instrument, would 
 be more seriously embarrassed than if the writing were in 
 the hands of his adversar}^ Should he receive notice to 
 produce it, a failure to comply would open the way for a 
 copy or parol evidence of its contents, which he would have 
 no means of successfully controverting. Should he produce 
 the instrument and be ruled to silence as to its genuineness, 
 his case would be equally desperate. 
 
 § 1279. Need Not Ibe OfiFered When Produced.— The no^ 
 tice to produce may be merely a tentative proceeding on 
 the part of the party giving it, and when the paper is pro- 
 duced its recitals may be found so at variance with what 
 was anticipated that he may not desire to offer it in evi- 
 dence. This he cannot be forced to do, but neither can he, 
 at his option, refuse to offer the original, and substitute 
 secondary evidence therefor. As, when the original pro- 
 duced by defendant on notice, on inspection proved to be 
 at variance with a copy in the hands of plaintiff, which he 
 offered in evidence instead of the original, wpon the ground 
 that what purported. to be the original instrument was spu- 
 rious, it was held properly refused, as a paper was in court 
 which was at least prima facie the original.* In this case 
 the court reserved its decision as to how far plaintiff would 
 have been permitted to show a variance of the defendant's 
 paper from the genuine, after it was once introduced ; but 
 
 1 Rhodes v. Selin, 4 Wash. C. Ct., 715. 
 
 2 Pearce v. Hooper, 3 Taunt., 60; Burnetts. Lynch, 5 Barn. & Cres., 38. 
 
 sStitt V. Huidekopers, 17 WaU., 384.
 
 NOTICE TO PRODUCE BOOKS AND PAPERS. 611 
 
 it would certainly seem that if he was compelled to call 
 upon the defendant to furnish the instrument, without a 
 previous opportunity to examine it, he should not be con- 
 clusively bound by any paper the defendant might be pleased 
 to produce. To decline offering the paper would be to 
 abandon the point depending for proof upon such evidence. 
 To hold him precluded from disputing the genuineness of 
 the document when offered would be virtually to place tlio 
 party calling for the writing entirely in tlie power of the 
 party producing it. 
 
 § 1^280. Inference Drawn from Failure to Produce.— 
 We have seen that the failure to produce an original instru- 
 ment on the trial does not dispense with proof, but merely 
 admits evidence of an inferior degree.^ However, when a 
 paper having an important bearing upon the matter in issue 
 is traced to the possession of one of the parties, who, when 
 challenged by his adversary to produce it, declines to do so, 
 the jury are at liberty to infer from his refusal that the instru- 
 ment would be damaging to his case.'- At least, when books 
 and papers are satisfactorily shown to be in the possession 
 of a party to an action, which he fails or refuses, upon due 
 notice from the opposite party, to produce at the trial, and 
 the secondary evidence offered in lieu thereof is vague or 
 uncertain, every presumption sliould be against the party 
 who might have rendered it clear by producing the best 
 e\'idence.^ As in the case of Eastman v. Amoskeag, etc., 
 Co.,* the paper called for by the notice was a receipt., 
 and not being produced, a copy was offered in evidence, 
 which was sworn to by a witness, who did not pretend to 
 have compared it with the original, nor could he recollect 
 
 1 Ante, § 1275. 
 
 2KeUar v. Savage, 20 Me., 199; Clifton v. United States, 4 How., 242. 
 
 3 Eastman v. Amoskeag Manuf. Co., 44 N. H., 143; Foye v. Leighton, 
 24 id., 29; Cross v. Bell, 34 N. H., 82; Bassett v. Salisbury Co., 28 id., 
 438; Life & Fire Ins. Co. v. Mechanics' Ins. Co., 7 Wend., 31; Bright v. 
 Young, 15 Ala., 112. 
 
 ^ Supra. 
 41
 
 G42 PRACTICE AND PLEADING. 
 
 the contents of the original, without refreshing his memory 
 from the copy, yet aided by the prcsmnption stated above, 
 this was held competent to go to the jury to prove the con- 
 tents of the instrument withheld, 
 
 § 1281. Notice to Produce Notice — Unnecessary. — The 
 weight of authority in the United States is decidedly in 
 favor of the doctrine that the contents of a notice, whether 
 it be a notice to produce or for any other purpose, may be 
 proved by secondary evidence, without a notice to produce 
 the original. As, for example, a notice of demand and non- 
 payment, or non-acceptance of commercial paper.*. The 
 ground for these decisions is that to hold otherwise would 
 necessitate, for every notice sent, a new one to show the 
 contents of the former, and so on ad infinitum? It has 
 also been held, in strict harmony with the other cases cited, 
 that the contents of a notice by a surety to the holder of 
 commercial paj^er, to sue the principal maker, may be proven 
 by parol, without a notice to the holder to produce the orig- 
 inal notice served upon him.^ But in a more recent case, 
 the court decided that in order to prove the contents of a 
 written notice to sue, b}'' the indorser to the holder, there 
 should be a notice to produce.* 
 
 ^ 12S2. Contents of Notice. — The notice should contain 
 a plain and concise statement of what is called for. The 
 case should be properly entitled; but where the suit is 
 brought in the name of one party to the use of anotlier, 
 and the notice is given by the attorney of one party and 
 served upon the attorney of the other, describing the suit 
 as between the nominal plaintiff and the defendant, this 
 will be regarded as sufficiently certain.'^ If the notice is 
 
 'Central Bank r. Allen, 16 Me., 41; Eagle Bank v. Chapin, 3 Pick., 
 180; Leavitt v. Simes, 3 N. H., 14. 
 
 2 Morrow v. Commonwealth, 48 Pa. St., 305; Eisenbart v. Slaymaker, 
 14 S. &E., 153. 
 
 3 Christy v. Home, 24 Mo., 242. 
 
 *Latlu-op V. Mitchell, 47 Ga., 610. See, also, 3 Tidd's Pr., 805; cases 
 cited, note c. 
 sSimington v. Kent, 8 Ala., 691.
 
 NOTICE TO PKODUCE BOOKS AND PAPERS. 643 
 
 sufficiently certain to avoid misleading the opposite party, 
 it will be held good though it be inartificially drawn.^ As 
 where the descriptive part of the notice was in these words : 
 "An agreement bearing date the 12th of December, 1855, 
 made between the plaintiff and the defendant, whereby the 
 defendant agreed to let, and the plaintiff to take, the house 
 and premises No. 2," etc. (describing them), it was held 
 sufficient.^ So where the papers designated were — ''AH 
 and every letters written by the said plaintiff to the said 
 defendant, relating to the matters in dispute in this action," 
 the description was held sufficiently certain, because it men- 
 tioned the writer and the person to whom written.' And 
 even where a particular paper was desired, which was 
 among certain accounts, and the notice called for " all ac- 
 counts relating to the matters in question in this cause," it 
 was held sufficient, because enough was expressed, under 
 the peculiar circumstances of the case, to leave no doubt 
 that the particular instrument would be called for.* 
 
 §1283. Should Not l)e Too General.— But the notice 
 should not be so general as to leave any room for a reason- 
 able doubt as to what books or papers are required ; or to 
 necessitate the production of an unreasonable number of 
 documents in the possession of the party notified; or to 
 place his private correspondence at the disposal of the party 
 giving the notice, so as to enable him to inspect that portion 
 which is utterly irrelevant, in order to determine what will 
 answer his purpose. ^ It was accordingly held that a notice 
 calling for " all papers and documents touching or concern- 
 ing the bill of exchange mentioned in the declaration, and 
 the debt sought to be recovered," was too general,* 
 
 § 1284. Generally in Writing. — In general, the notice is 
 required to be in writing ; but even where this rule was ex- 
 
 1 Justice V. Elstob, 1 Fost. & F., 256. 
 
 2 Graham v. Oldis, 1 Fost. & F., 263. 
 
 3 Jacob V. Lee, 2 Mood. & Rob., 33. 
 
 ♦Rogers v. Custance, 2 Mood. & Rob., 179; Morris v, Hauser, id., 392. 
 5 France v. Lucy, Ry, & M., 341.
 
 64:4 PKACTICE AND PLEADINO. 
 
 pressly recognized as in force, it was held not to apply 
 when the notice was given in the presence and hearing of 
 the court.^ 
 
 § 1285. Renewal Unnecessary in Case of Continu- 
 ance. — The notice being to produce documentary evidence 
 at the trial, it will hold good though the case should not 
 be called at the next succeeding term, or should be contin- 
 ued or passed until the following year.^ So where the party 
 was notified to produce an instrument to be offered in evi- 
 dence at the trial before a justice of the peace, and faihng 
 to produce it, secondary evidence was offered, it was held 
 that the same notice would be available for the trial on ap- 
 peal, and if the instrument was not produced there, evidence 
 of an inferior degree would be admitted.^ 
 
 § 1286. Time of Notice. — A reasonable time must elapse 
 between the service of the notice and the trial, to allow the 
 party to procure the writing. What is reasonable time 
 must necessarily depend upon the circumstances of each 
 case. As where the service was at noon of the day preced- 
 ing the trial, it was regarded as reasonable in point of time, 
 and where the situation of the party was such as to have 
 enabled him to attend the trial with the document, without 
 serious inconvenience.^ And when the notice was to pro- 
 duce the book of accounts of the party, in consideration of 
 the fact that his counting-house was very near, it was held 
 sufficient if served on the evening preceding the trial."' So 
 where it was proved that at half -past six on the evening pre- 
 ceding the trial, plaintiff's attorney caused notice to produce 
 a letter previously written to defendant, to be served on 
 defendant at his residence by leaving it with his wife, and 
 that he caused a similar notice to be served at the office of 
 defendant's attorney a few minutes later in the evening, 
 
 1 Kerr v. McGuii-e, 28 N. Y., 446. 
 
 2Reab v. Moor, 19 Johns., 337, 
 
 *< Reab v. Moor, supra. 
 
 ^Regina v. Hankins, 2 Carr. & Kir., 822. 
 
 sShreve v. Dulany, 1 Cranch C. Ct., 499.
 
 NOTICE TO PEODUCE BOOKS AND PAPERS. 645 
 
 this was held not too late.^ So, also, a notice given to the 
 attorney several days before the trial, was held served 
 within a reasonable time, although the party himself re- 
 sided outside of the state.^ It was also held, where the 
 notice was served on the day preceding the trial, and it ap- 
 peared that the paper was in the hands of a party residing 
 at a distance of eighty miles from the place of trial, that 
 the com-t would not take judicial notice of the fact that he 
 could not have procured it, and in the absence of any show- 
 ing of his inability to do so, secondary evidence of its con- 
 tents was admissible.* 
 
 § 1287. Served at Trial Too Late.— The notice will be 
 regarded as too late when served at the time of trial, except 
 where it can be shown that the books or papers are in court, 
 or are of easy access/ So, where it was to produce a letter 
 in reference to the note upon which suit was brought, and 
 the service was at a quarter before 9 o'clock on the evening 
 before trial, it was held too late.^ So, also, where the no- 
 tice was served at half-past 8 on one evening, and the trial 
 was set for the hour of 10 on the following morning, it was 
 held not served in time to require the production of the 
 paper, nor to warrant secondary evidence when the original 
 was not produced.^ 
 
 § 1288. Pa,rty Not Required to Incur Expense. — 
 "Where the notice was given on Saturday, to produce cer- 
 tain deeds, plaintiff's attorney went to town and procured 
 them, and on the evening of the following Monday was 
 served with another notice to produce an additional deed, 
 which he said would be there in time for the trial, if de- 
 fendant would bear the expense of sending for it. This, 
 however, defendant did not do, but at the trial, on the fol- 
 
 iMeyrick v. Woods, Carr, & ]\Iarsh., 452. 
 
 2 Jefford V. Ringgold, 6 Ala., 544. 
 
 3Cady V. Hough, 20 111., 43. 
 
 < Atwell V. MiUer, 6 Md., 10; Barton v. Kane, 17 Wis., 37. 
 
 5 Holt V. Miers, 9 Carr. & P., 191. 
 
 6 Lawrence v. Clark, 14 Mees. & Wels., 250.
 
 64:6 PBACTioE Jlsd pleading. 
 
 lowing Thursday, offered parol testimony of the contents of 
 the deed, which the court refused to admit, and it was held, 
 on appeal, that such refusal was proper, as it was unreason- 
 able for plaintiff to repeat his journey to town at his own 
 expense.^ 
 
 § 1289. Original Not in Existence. — Objections on ac- 
 count of lateness of service will not be sustained when the 
 party or his attorney admits that the original is not in ex- 
 istence. In such case secondary evidence may be given 
 without notice.- 
 
 § 1290. Opposite Attorney in Possession of Papers. — 
 The notice to produce may be served upon the attorney of 
 the party in possession of the instrument as effectively as if 
 served upon the party himself.^ And service upon the 
 attorney or agent is as good in actions of a penal nature as 
 in any other.* A subsequent change of attorneys will not 
 invalidate the notice, provided it was served upon the 
 attorney for the time being,^ 
 
 §1291. One of Several Joint Parties. — Either one of 
 two or more joint plaintiffs or defendants may be served 
 with notice of this kind with like effect as though it were 
 served upon each of them, provided they have possession or 
 control of the desired document, and an admission by either 
 that the instrument is destroyed wiU dispense with notice 
 entirely, and warrant proof of the contents of the instru- 
 ment destroyed by the next best evidence at the command 
 of the party." 
 
 § 1292. Personal Service Not Indispensable. — It is not 
 essential in all cases to show personal service of the notice 
 to produce. It has been held well served when left at the 
 usual place of abode of the party intended to be affected 
 
 1 Doe V. Spitty, 3 Barn. & Adol., 182. 
 
 2 Foster v. Pointer, 9 Carr. & P., 718. 
 
 3Simington v. Kent, 8 Ala., 691 ; Jefford v. Einggold, 6 Ala., 544. 
 
 4 Gates V. Winter, 3 T. R., 806. 
 
 5 Doe V. Martin, 1 M. & Rob., 243. 
 
 6Marlow v. Marlow, 77 lU., 638; King v. Lowry, 20 Barb., 533.
 
 NOTICE TO PEODUCE BOOKS AND PAPEKS. 647 
 
 thereby, with some person of competent age, or where it 
 was left at the oflSce of the attorney.^ But in case of serv- 
 ice otherwise than personal, when, through no fault of the 
 party required to produce, the notice fails to reach him in 
 time, reasonable indulgence should be extended to him to 
 enable him to produce the original, in order to correct any 
 errors or false statements by which he might be prejudiced, 
 in the copy, or the parol testimony. 
 
 iMeyrick v. Woods, Can-. & Marsh., 452.
 
 648 PEACnOE AKD PLEADING. 
 
 VII. Sekyice. 
 
 § 1293. Importance of Proper Service. 
 
 1294. Division of Subject. 
 
 1295. By Whom Served. 
 
 1296. Not by Party ia Interest. 
 
 1297. By Unofficial Person. 
 
 1298. When the Officer a Party. 
 
 1299. Notice of Motions, etc. 
 
 1300. To Take Depositions. 
 
 1301. Upon Whom Served. 
 
 1303. Original Process Served on Agent. 
 
 1303. Service Upon Corporations. 
 
 1304. Statute for Benefit of Residents. 
 
 1305. Eeasonableness of Rule. 
 
 1306. Service Upon Foreign Corporations — Federal Judiciary Act. 
 
 1307. United States Circuit Courts Have Limited Jm'isdiction. 
 
 1308. How Jurisdiction Obtained in Federal Courts. 
 
 1309. How Corporations Served. 
 
 1310. Service Upon Ticket Agent. 
 
 1311. Where the Statute Directory and Permissive. 
 
 1312. Service on Municipal Corporation. 
 
 1313. Upon City Clerk, Insufficient. 
 • 1314. Service Upon Partners. 
 
 1315. Principal Defendant, 
 
 1316. Service Upon Minors. 
 
 1317. Upon Convicts. 
 
 1318. Service Upon Party by Wrong Name. 
 
 1319. Variance Between Name in Process and Other Papers. 
 
 1320. Several Defendants in Different Counties. 
 
 1321. Service Upon Attorney. 
 
 1322. Same in Suit Before Justice of Peace. 
 
 1323. Should Not be Upon Attorney Whose Connection with Case 
 
 Has Ceased. 
 
 1324. "Due "Notice. 
 
 1325. Application for Injunction. 
 
 1326. Construction of " Reasonable " Notica. 
 
 1327. Time Fixed by Statute. 
 
 1328. Admission of Notice. 
 
 1329. Time of Notice of Motion for New Trial 
 
 1330. Time Computed from Date of Service. 
 
 1331. How Time Computed. 
 
 1332. Summons Must be for Full Time. 
 
 1333. Reference to Other Parts of Chapter.
 
 SEKVICK. 64:9 
 
 § 1334, Manner and Mode of Service. 
 
 1335. Personal Service. 
 
 1336. Leaving it at Place of Abode, Not Sufficient. 
 
 1337. Personal Upon Attorney. 
 
 1338. Strict Eequirenient as to Sunxmons. 
 
 1339. Different Modes of Personal Service. 
 
 1340. By Reading Original, or Delivering Writing. 
 
 1341. Written, Slust be by Delivery. 
 
 1342. Rule Deduced from Foregoing. 
 
 1343. Service at Place of Abode. 
 
 1344. General Remai'ks. 
 
 1345. Leaving at Residence or Place of Business Only Prescribed by 
 
 Statute. 
 
 1346. In What Cases Officer May Elect Mode. 
 
 1347. Leaving at Place of Residence. 
 
 1348. Family of Which Party is a Member. 
 
 1349. Must be at Present Place of Abode. 
 
 1350. Necessity for Strict Construction. 
 
 1351. Actions Against Property. 
 
 1353. Personal Service in Foreign State. 
 
 1353. Proof of Foreign Service. 
 
 1354. Acknowledgment of Service. 
 
 1355. Service by Mail. 
 
 1356. Chancery Proceedings in United States Court. 
 
 1357. On Board Foreign Vessel. 
 
 1358. Non-resident Temporarily Within Jurisdiction — WTien May be 
 
 Effectually Served, and When Exempt. 
 
 1359. Sunday or Legal Holiday. 
 
 1360. Reference to Other Chapters. 
 
 § 1293. Importance of Proper Service. — l^o step taken 
 in any proceeding which has for its object the giving of 
 notice of anything done or to be done in the past, present 
 or future, in the course of practice in the courts, is of 
 greater, or perhaps equal, importance to that of serving no- 
 tice upon the party to be affected by the proceeding. The 
 importance of careful attention to this matter arises from 
 the fact that it is an act for the performance of which nu- 
 merous way s are provided, and consequently the possibiUties 
 of error are multiplied. Another reason for extraordinary 
 care in serving notice of any proceeding by which the in- 
 terests of the party served may be affected, is that mistakes 
 or omissions of duty in this respect are more likely to prove
 
 650 PKACTICE AKD PLEADING. 
 
 fatal to the validity of the proceeding. There can be no 
 amendment of the service after any portion of the time has 
 elapsed for which the party should have had notice. When 
 the method of obtaining ser\'ice is in its natm'e constructive, 
 as where the notice may be served by leaving it at the place 
 of business or residence of the party interested, the rules 
 governing the service are still more strictly enforced, and 
 fatal mistakes are more likely to occur.^ 
 
 § 1 2 94. Division of Subject. — In considering this branch 
 of our subject, it may be more conveniently treated, and 
 the substance of the authorities cited, by way of illustration, 
 more perspicuously arranged, by considering in regular 
 order: 1. By loliom the notice sJiould he served. 2. U^on 
 whom served. 3. The time of service. 4. The mamier and 
 m^ode of service. 
 
 § 1295. By Whom Served. — The general practice, when 
 formal notice is required of any impending proceeding in 
 court, is to have the notice served by the executive oflBcer 
 of the court ; but this is not always essential. Matters of 
 this kind being to a considerable extent within the control 
 of the different courts, when they are not regulated by stat- 
 ute, renders it impossible to lay down a rule apphcable to 
 all forms of notice, and which would be acceptable in all 
 the different tribunals where such notices are required. But 
 where the notice to be served partakes of the nature of the 
 original process ; or when the proceeding to be noticed is 
 intended to result in a judgment or decree upon which ^«^ 
 process may issue, it is the safer and better practice to have 
 the notice served by an officer. When the original ]3rocess 
 is directed to a marshal, sheriff or constable, it should be 
 served by such officer or his deputies, unless there be some 
 statutory provision, by which some one else may be substi- 
 tuted.2 
 
 § 1296. Not by Party in Interest. — We know of no 
 exceptions to the rule that original process can never be 
 
 1 Infra. 
 
 2Schwabacker v. ReiUy, 3 DiU., 137,
 
 SERVICE. G51 
 
 served by a party to the suit upon his adversary ; ^ though 
 the rule is not generally so strict with reference to some 
 other notices, which are regarded as less important. 
 
 § 1297. By Unofficial Person. — Where an order of the 
 board of health of a village, for the discontinuance of an 
 offensive employment, was required to be brought to the 
 knowledge of the person subject to such order by a formal 
 notice, it was held sufficiently served, though not by an 
 officer; but was only held so because its receipt by the per- 
 son affected was proved.- So, also, has it been held, under 
 a peculiar statute, that original process might be served by 
 an unofficial person, instead of a sheriff, and such service 
 could be authenticated by the affidavit of the person by 
 whom it was served, though not by his mere certificate.^ 
 Service of notice of a mechanic's lien may be made by a 
 constable or any competent witness.'* 
 
 § 1298. When the Officer a Party. — Service of original 
 process is not onlv permitted to be made, in some instances, 
 by those who are not clothed v/ith any official character 
 whatever, but w^hen the only available officer is a party to 
 the proceeding to be noticed, it becomes absolutely neces- 
 sary that some one else should be selected. When the sub- 
 stitute for a sheriff is selected by the court, he is generally 
 styled an elisor, and is clothed with all necessary authority 
 to discharge his duty in the premises. 
 
 § 1299. Notice of Motions, etc. — Notices of interlocu- 
 tory motions, notice of trial, notice to take depositions, and 
 the like, it is generally understood, may be served by an 
 unofficial person with the same effect as by an officer of the 
 court, provided sufficient care be taken to properly authenti- 
 cate such service. 
 
 § 1300. To Take Depositions. — Where one of the par- 
 ties to a suit desires to take depositions, to be used at the 
 
 iSnydacker v. Brosse, 51 HI., 357. 
 2 Winthrop v. Farrar, 11 Allen, 398. 
 8 Coffee V. Gates, 28 Ark., 43. 
 4 Hassett v. Rust, 64 Mo., 335.
 
 652 PKACTICE AND PLEADING. 
 
 trial, the service of notice upon the opposite party is occa- 
 sionally questioned, because it is claimed to have been served 
 by an improper person. In the state of Vermont it was 
 held that such a notice might be served by the sheriff of the 
 county in which the suit was pending, upon the opposite 
 part}^ in another county.' And under the provisions of a 
 statute of the same state, it was held that notice of the 
 taking of depositions to be used in a trial before a justice of 
 the peace should be given personally and orally hy the jus- 
 tice himself.^ It has also been held elsewhere, when depo- 
 sitions were taken under a foreign commission, and the 
 interrogatories were not filed in time to give the opposite 
 party an opportunity to file cross-interrogatories, thereby 
 rendering notice essential, that such notice would properly 
 come from the commissioner before whom the depositions 
 were taken, and not from the attorney.^ 
 
 § 1301. Upon Whom Served. — In determining upon 
 ivhom service should be made, the courts have had to meet 
 questions somewhat difficult of solution. Considerations of 
 the character of parties to judicial proceedings, the relations 
 subsisting between those interested, and the manner in 
 which they are represented in the contests, aU tend to 
 modif}^, in a greater or less degree, the simple rule that 
 " notice should be served upon the party adversely inter- 
 ested in the proceeding." In matters of practice, it is often 
 not only extremely inconvenient to serve the party, but it is 
 sometimes impossible; and, except with respect to the 
 original process, is more effective, and best subserves the 
 interests of all parties, by being served upon a representa,tive. 
 And even a summons, citation, or original notice may be, 
 under some circumstances, served upon an agent, with a 
 stronger probability of conveying information to the prin- 
 cipal, than would arise from constructive service upon the 
 principal himself, by means of publication in a newspaper, 
 
 1 Parker v. Header, 33 Vt., 300. 
 
 2 See Redfield, J., in Fitts v. Whitney, 32 Vt., 5£9. 
 
 3 Parker v. Sedwick, 5 Md., 281.
 
 SERVICE. 653 
 
 or posting -written or printed notices upon court-house doors, 
 at school-houses and cross-roads. 
 
 § 1302. Original Process Served on Agent. — Original 
 process ma}^, under certain circumstances, be legally served 
 upon the agent of the party to be affected by the proceed- 
 ing, as where such party is a corporation, foreign to the 
 jurisdiction of the court from which the summons issues, 
 but doing business, and having its interests represented by an 
 agent or manager within such jurisdiction.^ However, the 
 power of obtaining jurisdiction by this kind of service arises 
 from the non-residence of the corporation notified, rather 
 than from its corporate character; for service upon the 
 official representative of a domestic corporation, though 
 equally valid, is not regarded as service upon an agent, but 
 upon the corporation itself. It is a resident of the state or 
 territory where it was incorporated, in the sense that it has 
 all the local habitation it can have, there and nowhere 
 else. It can only be reached personally, by serving those 
 who exercise its powers, and perform its functions; and 
 when its officers and directors act beyond the limits of the 
 state by whose authority they were created a body corpo- 
 rate, they become merely agents of the corporation.- "When 
 they are exercising their official authority in the state where 
 they were incorporated, they are, for the purpose of service 
 of process, the corporation itself; therefore, service upon 
 them is personal service.' 
 
 § 1303. Service Vpon Corporations. — In most, if not 
 aU, the states, jurisdiction of foreign corporations doing 
 business within their limits is secured b}^ statutory provis- 
 ions, requiring as a condition precedent to their being per-' 
 mitted to transact such business in the state, that they 
 designate some person as authorized to represent them, and 
 upon whom service may be had of all process issuing against 
 
 1 Lafayette Insvirance Co. v. French, 18 How., 404; Weymouth v. 
 Washington G. & A. K. R. Co., 1 MacArthur, 19. 
 -Bank of Augusta tJ. Earle, 13 Pet., 588. 
 3 Bank of Augusta v. Earle, supra.
 
 654 rRAcncE a^sd pleading. 
 
 the corporation.^ It is siiflBcient, however, to render service 
 upon such agent binding, if the statute siraph" declares that 
 service may be had upon resident agents of foreign corpora- 
 tions doing business in the state.^ By engaging in business 
 within the limits of a state, where such a statute is in force, 
 the corporation will be regarded as thereby voluntarih'^ sub- 
 mitting to the territorial jurisdiction of its courts, subject 
 only to the right of removal to a federal court.^ 
 
 § 1304:. statute for Benefit of Residents. — But juris- 
 diction cannot in everv instance be obtained in this manner, 
 even under such statutory provisions.^ The statute is in- 
 tended for the benefit and protection of the citizens of the 
 state where it is enacted. Therefore, in a case where the 
 cause of action arose out of the state where the suit was 
 pending, and between citizens of another state and a for- 
 eign corporation, and process was served by leaving a copy 
 of the writ with its " agent and attorney " within the state, 
 it was held that the court thereby obtained no jurisdiction 
 of the defendant.' 
 
 § 1305. Beasonableness of Rule. — There can be no 
 doubt of the justice of the very temperate pro\'isions inter- 
 posed by the legislative bodies of the states for the protec- 
 tion of their own citizens. To require a non-resident corpo- 
 ration to submit to the local jurisdiction of the courts, 
 where it undertakes to transact business, is simjoly to place 
 it as near as may be on an equal footing with domestic cor- 
 porations and resident individuals who may be its rivals for 
 public patronage. It would be eminently unjust to compel 
 the states to grant to non-residents the same privileges, im- 
 munities and rights as are enjoyed by their own citizens, and 
 then deprive the latter of the same power of enforcing con- 
 tracts against the foreigners as they might exercise against 
 
 1 Gantt's Dig., § 3561, as amended ; Laws of Ark. (1875), p. 190. 
 
 2 Lafayette Insurance Co. v. French, supra, § 1303. 
 
 3 Ihid. 
 
 * See Gen. St., Vt., ch. 87, §5et seq. 
 
 5 Sawyer v. North American Life Ins. Co., 46 Vt., 697.
 
 SEEVICE. 655 
 
 resident persons and corporate bodies. But by the opera- 
 tion of the act of congress regulating the practice in federal 
 courts, known as the Judiciary Act, this unjust discrimina- 
 tion is effected.^ 
 
 § 1306. Sei'Tice Upon Foreign Corporations — Federal 
 Judiciary Act. — This act provides that no civil suit shall be 
 brought in the circuit court of the United States, against 
 any person, in any other district than that whereof he is 
 an inhabitant, or in which he shall be found at the time of 
 serving the process.' The effect of this provision is to de- 
 prive the circuit courts of all original jurisdiction over cor- 
 porations foreign to the state composing, in whole or in 
 part, the district where the cause of action arises. The 
 corporation having no legal existence beyond the boundaries 
 of the sovereignty by which it was created, cannot migrate. 
 Consequently, it could neither be an " inhabitant " of the 
 district, nor could it be found in such district at the time of 
 serving process, though its officers might be passing through 
 or fomid within such district ; for the officers are not the 
 corporation.^ 
 
 § 1307. United States Circuit Courts Have Limited 
 Jurisdiction. — This question is ably discussed, and the cases 
 thoroughly reviewed by Judge Dillon, in a recent case 
 decided in the circuit court for the eastern district of Arkan- 
 sas.* There the action was by a citizen of Arkansas upon a 
 fire policy issued by defendant, a corporation created under 
 the laws of the state of Illinois, upon plaintiff's property 
 
 1 Originally enacted in 1789, and re-enacted without change by the act 
 of March 3, 1875, § 1. 
 
 2 Supra. 
 
 3 Bank of Augusta v. Earle, supra; Pomeroy v. N. Y. & N. H. R. R. 
 Co., 4 Blatchf., 120; Day v. Newark India Rubber Co., 1 Blatclif., 628; 
 Southern & Atlantic Tel. Co. v. New Orleans, etc., R. R. Co., 2 Cent. L. 
 J., 88. 
 
 * Stillwell V. Empire Fire Insurance Co., 4 Cent. L. J,, 463. See, also, 
 Cunninghams. Southern Ex. Co., 67 N. C, 425. But see "Williams v. 
 Empire Ins. Co. , 6 Reporter, 673 ; Ex parte SchoUenberger, 6 Reporter, 
 5 ; R. R. Co. V. Harris, 12 Wall., 65 ; Railway Co. v. Whitton, 13 Wall., 284.
 
 GoO TKACTICE AND PLEADING. 
 
 located in the state of Arkansas. It is provided by statute 
 in the latter state, that " no insurance company not of this 
 state, nor its agents, shall do business in this state, until it 
 has jBled with the auditor of this state a written stipulation, 
 duly authenticated by the company, agreeing that legal 
 process affecting the company, served on the auditor or the 
 agent specified by the said company, to receive service of 
 process for the company, shall have the same effect as if 
 served personally on the company within the state." ' It 
 was admitted that the process was served as required by the 
 statute; but the court held, upon the authority of the cases 
 already cited, that jurisdiction could not be obtained iti the 
 circuit court by such service, though the justice of the 
 statutory provision was fully recognized. The restrictive 
 provision of the judiciary act was recognized as a defect in 
 the jurisdiction of the circuit courts, but one which had 
 existed since the oro-anization of such courts. 
 
 § 1308. How Jurisdiction OMained in Federal Courts. 
 There is no doubt that jurisdiction may be obtained of non- 
 resident corporations by this kind of service of process issu- 
 ing out of state courts. The statutes are enacted for the 
 express purpose of enabling them to obtain service upon 
 corporations doing business within such states, and eminent 
 federal judges have not hesitated to notice without disap- 
 proval the indirect means frequently emjjloyed for bringing 
 such corporations into the federal courts, by instituting the 
 suits in the courts of the state, and then remo\ang them to 
 the circuit court of the United States." 
 
 § 1309. How Corporations Served. — Upon what partic- 
 ular officer of a corporation, or upon what class of officers, 
 process or other form of notice may be served in proceed- 
 ings against the corporation, is generally regulated by stat- 
 ute in the different states, and by act of congress in such 
 cases as arise in the federal courts. They include directors, 
 
 iQantt's Dig., § 3561; Laws 1875, p. 190. 
 
 2 See Still well v. Empire Insurance Co., supra; Atlantic Tel. Co. v. 
 New Orleans, etc., R. R. Co., supra. § 1306.
 
 SERVICE. C5T 
 
 presidents, secretaries, treasurers, managing agents, and a 
 multiplicity of other oflBcial representatives too numerous 
 and too diverse in their titles to admit of enumeration. The 
 managing agent is recognized by the courts, both federal 
 and state, as a proper person to serve in such cases.' Thougli 
 process was held not well served where the return showed 
 service on the " business manager," as this was an officer 
 unknown to the law.- 
 
 §1310. Service Tpon Ticket Agent.— Where the pro- 
 ceeding was against a railroad corporation, the process was 
 •ield to be properly served upon any one left in charge of 
 the depot, such person being a ticket agent or other subor- 
 dinate officer, when the company had designated no one 
 else to accept service of process issued against it.^ But 
 summons was held not well served upon a mere book-keeper 
 of a corporation.* 
 
 §1311. Where the Statute Directory and Permis- 
 sive. — It has also been held, where the language of the stat- 
 ute was that service may be had on a director of a railroad 
 corporation, that such language was permissive and direct- 
 ory, and not restrictive or mandatory, and hence service on 
 a station agent was sufficient.^ 
 
 §1312. Service on Municipal Corporation. — In suits 
 against public or municipal corporations, except where 
 otherwise provided by statute, process should be served 
 upon the principal officer or representative of the executive 
 branch of the government, at the time of service. And it 
 would seem that he might be served with such process, or 
 mth notice of any proceeding pending against the corpora- 
 tion, substantially as though the action or proceeding 
 were pending against him in his individual capacity. As 
 
 1 New England Car Spring Co. v. Union Rubber Co., 4 Blatch., 1 ; Scor- 
 pion S. M. Co. V. Marsano, 10 Nev., 370. 
 
 2 lUd. 
 
 »M., K. & T. Railway Company v. Crowe, 9 Kan., 496. 
 < Chambers v. King Wrought Iron, etc., Co., 16 Kan,, 270. 
 estate v. Hannibal & St. Jo. R. R. Co., 51 Mo., 532. 
 42
 
 (558 PRACTICE AND PLEADING. 
 
 where a suit was instituted by attachment against a school 
 district, under a statute providing that all writs against 
 such corporations should be served upon the clerk ; and the 
 attachment law required that a copy of the writ and a list 
 of the property should be delivered to the party or left at his 
 usual place of abode, an attested copy of the writ, etc., be- 
 ing left during the absence of the clerk, at his usual place 
 of abode, with his wife, it was held that the service was 
 sufficient.^ 
 
 § 1313. Upon City Clerk, Insufficient. — But a summons 
 or other notice served upon the clerk ®f a city would be in- 
 effectual to authorize a judicial proceeding against the city, 
 unless such officer was legally designated for that purpose. 
 The proper officer to serve in such cases is the mayor of the 
 city.' 
 
 § 1314. Service Upon Partners. — Where there are two 
 or more parties interested as partners adversely to the 
 motion or other proceeding to be noticed, except where the 
 proceeding is in its nature a judicial investigation, service 
 upon one of such partners would be sufficient to bind both 
 or all.^ 
 
 § 1315. Principal Defendant. — Where there are several 
 parties defendant in a suit, and the statute, or rules of prac- 
 tice, require service, under certain circumstances, to be had 
 upon the principal defendant, it becomes an important sub- 
 ject of inquiry as to who is such principal defendant. In 
 deciding this matter in a case where the party served was a 
 corporation, and the custodian of certain stock belonging 
 to another defendant, who was not served, it was held that 
 the principal defendant must be one such as are known in 
 the chancery books as " active parties ; " and that in this case 
 that was the owner of the stock, and not the corporation.* 
 
 1 Dow V. School Dist., 46 Vt., 108. 
 2 Nichols V. Boston, 98 Mass., 39. 
 
 sPerrine v. MiUer, 4 Thomp. & C. (N. Y.), 36; Miller v. Perrine, 1 Hun 
 (N. Y.), 630. 
 ^Coleman's Appeal, 75 Pa. St., 441.
 
 SEKVICB. 659 
 
 §1316. Service Upon Minors. — Service may be had 
 upon minors, the same as upon adult parties, except where 
 the statute lays down a different rule of practice. But a 
 minor will not be bound by a Avritten acknowledgment of 
 service, whether such writing is executed by himself or his 
 guardian, or both.^ 
 
 §1317. Upon Convicts. — So may process be served upon 
 a convict confined in the penitentiary, with the same effect 
 as such service would have upon another.^ 
 
 § 1318. Service Upon Party by Wrong Name. — The 
 object of serving the original process or other form of no- 
 tice upon tha party, being to advise him of the pendency of 
 the action or jjroceeding, it is more important that the proper 
 party be served than that he be served by the proper name. 
 As a rule, therefore, the service of process upon the proper 
 party, but by a wrong name, will sustain a judgment entered 
 against such party pursuant to the process served.* 
 
 § 1319. Tariance Between Name in Process and Other 
 Papers. — It has been. held, however, that a judgment 
 against a party in his right name, Avhich name varies from 
 that appearing in all other stages of the proceedings, though 
 process be personally served, would be of no avail against a 
 defendant not appearing to the action.^ It is difficult to see 
 in what essential particular the case supposed differs from 
 any other in which there is a misnomer of a defendant who 
 is in fact served. The authority of this case might weU be 
 doubted, had it been decided according to the doctrine laid 
 down in the dictum. 
 
 § 1320. Several Defendants in Different Counties. — 
 When an action is against several defendants, some of whom 
 live within the county where the suit is instituted, and some 
 of them are residents of another county, in the same state, 
 
 1 Kansas City & C. E. E. Co. v. CampbeU, 62 Mo., 585. 
 2 Davis V. Duffle, 1 Abb. App. Dec, 486. 
 
 3 Welsh V. Kirkpatrick, 30 Cal., 203; Pany v. Woodson, 33 Mo., 347; 
 Morgan v. Woods, 33 Ind., 23. 
 * Moulton V. de ma Carty, 6 Eob. (N. Y.), 470.
 
 660 PKACTICE AND PLEADING. 
 
 the order in which such defendants shall be served is some- 
 times prescribed by statute so that one or more of those 
 resident within the jm^isdiction of the court shall be first 
 served. Where this provision is in force, it should be fol- 
 lowed in order to give the court jurisdiction.* 
 
 § 1321. Service Upon Attorney. — Where the matter to 
 be noticed is anything in the nature of an interlocutory mo- 
 tion or proceeding arising in the course of a suit, either at 
 law or in equity, including notices necessary in taking testi- 
 mony, notices of appeal, etc., the notice should be served 
 upon the attorney where one is employed.^ And even where 
 the attorney of record had retired from the case, but no 
 one had been substituted, as required by the statute regulat- 
 ing the practice of the court, a notice served upon the re- 
 tiring attorney, whose name still appeared upon the record, 
 was held well served.'* 
 
 § 1322. Same in Suit Before Justice of Peace. — So, 
 where notice of appeal from a justice's court was served 
 upon the attorney of appellee, though attorneys were not 
 necessary, and the statute required notice of such appeals to 
 be served upon " the party," omitting the words " or his at- 
 torney," used in the statutes governing appeals from other 
 courts, it was held that the omission was evidently without 
 special design, and service upon an attorney in such case 
 was sufficient.'* 
 
 § 1323. Should Not be Upon Attorney Whose Connec- 
 tion with Case Has Ceased. — A distinction is to be made 
 between cases where the attorney upon whom notice is 
 served has simply retired from the case, and where his con- 
 nection with it has ceased by reason of its having reached 
 judgment, and the execution has been directed. In the latter 
 
 1 Qark v. Lichtenberg, 33 Mich., 307. 
 
 2 Bailey v. Wright, 24 Ark., 78; Rivers v. Walker, 1 Dal., 85; Nashr. 
 GHkeson, 5 S. & R., 853 ; Newlin v. Newlin, 8 S. & R., 41 ; Hutcheson v. 
 Johnson, 1 Bin., 59. 
 
 3 Grant v. White, 6 Cal., 55; Herrin v. Libbey, 36 Me., 350. 
 
 4 Welton V. Garibardi, 6 Cal,, 345.
 
 SERVICE. 661 
 
 case, a notice upon the attorney to stay proceedings at law 
 would not be binding upon the party, because the relation 
 of attorney and client between them has ceased with refer- 
 ence to that case.^ 
 
 § 1 824. Due Notice. — When by the terms of the statute, 
 or the rules laid down by the court for the regulation of 
 practice therein, any proceeding is authorized only upon due 
 notice to the opposite party, the term " due " is generally 
 understood to have reference to the length of time which 
 should elapse between the service of the notice and the hear- 
 ing of the motion or other proceeding. This indefinite word 
 is employed where it is impracticable or inexpedient to 
 undertake to fix the time for any given number of days. It 
 necessarily leaves to the court a very large discretion in the 
 matter of time ; for not only is the word indefinite in its 
 general signification, but it is used in reference to so many 
 different and totally dissimilar proceedings, that it has been 
 found impossible for the courts to give it a rational con- 
 struction, applicable alike to all cases. The nearest approach 
 to a fixed rule would be, that due notice of any judicial 
 proceeding is notice for such time as the circumstances of 
 each particular case and the situation of the parties may, 
 in the discretion of the court, require. This, however, is no 
 rule at all, but merely a relegation of the whole question to 
 the discretion of the court wherein the matter is pending.^ 
 
 § 1325. Application for Injunction. — In the case of an 
 application for injunction to restrain defendant from the 
 prosecution of a suit in ejectment, where due notice was re- 
 quired, and the notice being served on the day next pre- 
 ceding that upon which the case was set for hearing, the 
 court, in view of all the circumstances, finding that there was 
 no laches on the part of the party making the application, 
 held such notice sufficient.^ 
 
 J Kamm v. Stark, 1 Sawyer, 547. 
 
 2 Lawrence v. Bowman, 1 McAllister, C. Ct,, 419; Allen v. Hill, 16 
 Cal., 113. 
 
 3 Lawrence v. Bowman, supra.
 
 662 PEACTICE AND PLEADING. 
 
 §1326. Construction of Reasonable Notice. — Cases 
 sometimes arise where notice is required, without a time 
 being fixed, or intimated beyond the provision that it shall 
 be ''reasonable" notice. In order to meet the requirements 
 of the statute, notwithstanding the vagueness of its provis- 
 ions, the courts resort to other statutes to learn what time 
 is thereby fixed in analogous cases. 
 
 § 1327. Time Fixed by Statute. — Where, however, the 
 time within which notice is to be served is' fixed by statute, 
 a failure to comply will be fatal. As where an appeal was 
 taken and the notice was not served in time, the appeal was 
 dismissed^ notwithstanding the respondent had made the 
 following written acceptance of service : " Due service of a 
 copy of the within notice is hereby accepted to have been 
 made this 20th day of February, 1863." And the judg- 
 ment Avas affirmed on appeal, the court holding that the 
 acceptance only admitted service on a certain date, which 
 by the record appeared to be too late.^ 
 
 § 1328. Admission of Notice. — But an unqualified ad- 
 mission of " due " service of notice of appeal, without men- 
 tioning any date, amounts to a waiver of all objections to 
 the time within which the notice was served.^ 
 
 § 1329. Time of Notice of Motion for New Trial.— It 
 is nearly, if not quite, the universal rule to have a time fixed 
 by statute or rule of court, within which notice must be 
 given of an intention to move for a new trial. This notice 
 may be by an entry on a book kept for that purpose, or by 
 service on the opposite party, but must be served within the 
 prescribed time, or it will be considered that the party has 
 waived his right to have such motion entertained.'' In the 
 case of Carpentier v. Thurston,* the matter of ti7)ie became 
 
 iTowdy V. Ellis, 23 Cal., 650. 
 
 2Struverv, Ocean Insurance Ck)., 9 Abb. Pr., 23; Talman v. Barnes, 
 12 Wend., 227. 
 
 3Caney v. Silverthorne, 9 Cal., 67; Ellsassar tJ. Hunter, 26 Cal., 379; 
 State V. First National Bank, 4 Nev., 358. 
 
 4 30 Cal., 123.
 
 SERVICE. G63 
 
 important in considering whether the notice of motion for 
 a new trial was served in compliance with the statute. The 
 time fixed, in trials by the court, was " ten days after re- 
 ceiving written notice of the rendering of the decision of 
 the judge." The cause having been previously decided, 
 the judge, on tlie 11th of Marcli, and during vacation, de- 
 livered to plaintiff written findings and a draft of judgment 
 in his favor. On the same day, plaintiff gave defendant 
 the following written notice : After stating the venue and 
 the title of the cause — " Please take notice that the find- 
 ings in the above entitled cause have this day been signed 
 by the judge of said court, and his decision herein ren- 
 dered in favor of plaintiff, March 11, 1865." The findings 
 and draft of judgment Avere delivered to the clerk of the 
 court, and were by him filed and the judgment entered 
 March 13, and on the same day, notice of defendant's in- 
 tention to move for a new trial was served upon plaintiff. 
 Construing the written notice from plaintiff most strongly 
 against its author, the appellate court held that, as the de- 
 cision was not rendered on the 11th, as stated in such notice, 
 consequently it was not a notice of the rendition of judg- 
 ment, but simply of the signing findings, and that there 
 was no notice of the rendering of the decision until the 
 13th, which allowed defendant until the 23d to give notice 
 of his intended motion. 
 
 § 1330. Time Computed from Date of Service. — It 
 will be observed that the time is computed from the service^ 
 and not from the date of the notice, in order to ascertain 
 whether it is due, reasonable, or given within the prescribed 
 time. So where ten days' notice of a sale was required by 
 contract, and the notice was dated on the 15th, and served 
 on the ITth, that the sale would take place on " ten days 
 after date," the service was held insufficient.' 
 
 §1331. How Time Computed. — In calculating the time 
 of service of a notice of hearing, either the day on which 
 
 1 Chase v. Hogan, 6 Bosw. (N. Y.), 431.
 
 664 PBAOTICE AND PLEADING. 
 
 the notice is served, or the day on which the hearing is to 
 be had, is excluded from the computation.^ 
 
 § 1332. Summons Must be for Full Time. — The service 
 of original process, in a suit at law, is never left to conject- 
 ure, in point of time ; and where there is any difference in 
 the strictness with which the law is enforced in this partic- 
 ular, between a summons and a notice of hearing of a mo- 
 tion or other interlocutory proceeding, where the time of 
 service is prescribed, the more rigid compliance is required 
 in serving the original process. Unless the summons is 
 served for the full time before return day, it is an absolute 
 nuUity.- 
 
 § 1333. Time of Notice of Taking Depositions, etc. — 
 As to the time required, in the service of notices to take 
 depositions, and to produce papers, etc., on the trial, the 
 reader is referred to the parts of this chapter where those 
 subjects are separately treated.^ 
 
 § 1334. Manner and Mode of Service. — The manner and 
 mode of service depends, of course, upon the character of 
 the proceeding, as well as the statute by which the same is 
 regulated. In general, however, where notice is required 
 by statute or rule of court, and the method of serving the 
 same is not laid down, it is understood that there shall be 
 'personal service.* And when the statutory proceeding is 
 one in derogation of common right, as the involuntary sale 
 of the property of an individual, the statute must be strictly 
 construed and closely pursued.^ 
 
 § 1335. Personal Service. — When it appears from a 
 reasonable construction of the statute or rule that ])crsonal 
 service was intended, no other can be substituted so as to 
 
 1 Anderson v. Baughman, 6 Mich., 298. 
 2 Draper v. Draper, 59 111., 119. 
 ' See ante. 
 
 ^Eathburn v. Acker, 18 Barb., 393; McDermot v. Board of Public, 
 etc., 25 Barb., 635. 
 6 Rathburn v. Acker, supra.
 
 SERVICE. 665 
 
 render the proceeding binding upon the party served, in 
 case he refuses to recognize the same.^ 
 § 1336. Leaving it at Place of Abode, Not Sufficient. — 
 
 So where personal service of a notice from street commis- 
 sioners to the owners of property adjacent to certain streets, 
 requiring such property owners to improve the street, it 
 was held that such notice could not be legally served during 
 the temporary absence of the owner, by leaving it at his 
 usual place of abode.- 
 
 § 1337. Personal Upon Attorney. — So, also, where the 
 notice was one which should have been served personally 
 upon the attorney of the adverse party, it was not Avell 
 served by putting it under the attorney's door, and taking 
 no further care to see that it was received. Had there been 
 a call upon the attorney on the following day when his 
 ofRce door was open, and an inquiry after the notice, the 
 service might have been regarded as sufficient, because such 
 diligence might have insured its receipt. And there is no 
 form of notice, except perhaps original process, which may 
 be invalidated by reason of its being served in an improper 
 manner, provided it be received in due time.* 
 
 § 1338. Strict Requirement as to Summons. — Orig- 
 inal process, in order to sustain a personal judgment, should 
 be personally served except where some other form of serv- 
 ice is provided by statute. So strict are the courts in en- 
 forcing the requirements of the statute in this respect, that 
 in one case where personal service was required, it was held 
 that an admission of service would not be sullBcient to war- 
 rant judgment by default, unless it was an admission oi per- 
 sonal service.* So where personal service of the original 
 notice was required by statute in a suit against partners, it 
 was held that service upon the wife of one of such partners 
 would not be sufficient.^ 
 
 1 Bond V. Whitfield, 28 Ga., 537. 
 - Simons v. Gardiner, 6 R. I. , 255. 
 3 Burdett v. Lewis, 7 C. B. (N. S.), 791. 
 ^ Read v. French, 28 N. Y., 285. 
 sBrydolf v. Wolf, 32 Iowa, 509.
 
 666 PKACTICE Ai^D PLEADING. 
 
 § 1339. Different Modes of Personal Seryice.— But 
 where there is no question but that the notice is intended 
 to be served personally upon the party to be affected by 
 the action or proceeding noticed, the manner of making 
 the service is subject to certain modifications incident to 
 Mh^fonn of the notice. It need hardly be remarked that a 
 verbal notice may be orally served ; but when the notice is 
 in writing, there is more than one method provided for 
 serving it personally ; the first and most obvious is by deliv- 
 ering to the party the original. The second is by delivering 
 a copy, and a third is by reading the notice to the person 
 served. 
 
 § 1340. By Reading Original or Delivering Writing. — 
 "Whether a written notice shall be served by delivery of the 
 writing or a copy thereof, or by reading the original, or by 
 either, at the option of the officer or other person making 
 the service, is, in most instances, regulated by statute ; but 
 this is not always the case. And when the statute is silent 
 as to the manner of service of a notice in writing, beyond 
 the requirement that it shall be personal, the question may 
 arise as to whether reading the written notice would be a 
 sufficient compliance with the law. 
 
 § 1341. Written, Must l)e by Delivery. — In the case of 
 Pursley ^^ Ilays,^ it is intimated that personal service of an 
 original notice, when the same is attached to the petition, 
 may be made b}^ reading, as well as by delivery of a copy 
 to the party served. However, under a statute of Rhode 
 Island, requiring "reasonable notice in writing" of the 
 appointment or removal of a guardian, it was held that such 
 notice could not be personally served by reading the same.^ 
 Judge Story, in delivering the opinion of the court, said : 
 " I understand that the notice must be a notice in writing ; 
 that the officer must leave with the party a written notice, 
 an original from the clerk, or at least a certified copy, in 
 writing, thereof. In no just sense can a notice by reading 
 
 1 22 Iowa, 11, 28. 
 
 2 Hart V. Gray, 3 Sumn. (U. S.), 339.
 
 SERVICE. C67 
 
 be deemed a notice by writing. * * * No instance, I 
 beKeve, can be produced where a notice, requii-ed to be 
 served and given in writing, has been held valid, unless the 
 service has been by the delivery of the paper itself, or a 
 copy in Avriting." ' 
 
 § 1342. Rule Deduced from Foregoiug. — We have seen 
 that when the manner and mode of service is not pointed 
 out by the statute, personal service is generally understood.- 
 It seems also to be settled, both upon principle and author- 
 \tj, that a vjritten notice can only be served by deliver}'- of 
 the original, or an authenticated copy.^ Jf the foregoing is 
 sound doctrine, we may deduce therefrom the rule that a 
 notice, required by statute to be in writing, in the absence 
 of any designation of the manner and mode of its service, 
 shall be served by delivery of the original or a copy thereof 
 to the party to be affected by the proceeding noticed. How- 
 ever, the cases have not all been decided in conformity to 
 this rule. In the case of Hildreth v. Lowell,* it is decided, 
 where it was required by a city ordinance that the officers 
 should " give notice in writing to the several owners " of 
 property across which it was intended to lay out a drain, 
 that the provisions of the ordinance were sufficiently com- 
 plied with by giving personal notice to the known owners, 
 and by posting two or more copies of such notice at public 
 places in the city. But in whatever manner the original 
 process may be served, it will be regarded as sufficient, both 
 at law and in equity, where the receipt of the writ is prop- 
 erly acknowledged in writing.^ 
 
 § 1343. Service at Place of Abode. — "We now come to 
 the consideration of a species of service which has been 
 denominated jpersonal^ to distinguish it from service hy mail; ^ 
 and substituted^ as contradistinguished from service strictly 
 
 iSee Fitts v. Whitney, 33 Vt., 589. 
 iJSee ante, % 1334. 
 
 3 Hart V. Gray, supra ; Fitts v. Whitney, supra. 
 
 4 11 Gray, 345. 
 
 5 Banks v. Banks, 31 111., 163. 
 
 6 See ante, part FV, ch. X.
 
 668 PKACTICE AND PLEADING. 
 
 personal} It has also been called both actuaP and construct- 
 ive ^ service. It is made by leaving the original or a copy 
 at the usual place of abode of the party to be served, with 
 some one other than himself. 
 
 § 1JJ4:4:. Creneral Remarks. — The fact that this method 
 of service is so differently classified is not at all surprising 
 when we consider the different circumstances under which 
 it is employed. When the matter noticed is the dishonor of 
 a note or bill, the prompt payment of which the party noti- 
 fied has conditionally guarantied, it may fairly be presumed 
 that he has provided against the contingency which he 
 knows may arise at a time certain, and that a notice left for 
 him at his residence or place of business would be less 
 likely to meet with a careless reception from those in charge 
 during his absence than a notice of a matter of which he has 
 had no previous warning, and for which he could have made 
 no adequate preparation. He may justly be presumed to 
 remember that he has indorsed a biU or note, which may be 
 dishonored on a certain day, and that he has left directions 
 concerning the receipt of notices of such matters. No man 
 may be supposed to calculate upon being served with orig- 
 inal process, or with notice of an interlocutory or other pro- 
 ceeding in court, 
 
 § 1345. Leaving at Residence or Place of Business Only 
 Prescribed by Statute. — However, it is quite certain that 
 though this method of service may be very liberally viev/ ed 
 for some purjDoses, yet it is, in no instance, regarded with 
 the same favor as service strictly personal. So far as it is 
 resorted to in matters of practice, it is recognized only be- 
 cause it is prescribed by statute, or is employed in a pro- 
 ceeding analogous to one where it is so authorized, and, like 
 aU statutory innovations, must be strictly construed.* 
 
 1 Chittenden v. Hobbs, 9 Iowa, 417. 
 ssturgis V. Fay, 16 Ind., 429. 
 SBrownfield v. Dyer, 7 Bush (Ky.), 505. 
 
 ^Brownfield v. Dyer, 7 Bush (Ky.), 505; Mullins v. Sparks, 45 Miss., 
 129; Pollard v. Wegener, 13 Wis., 569.
 
 SEEVICE. 669 
 
 § 1346. In What Cases Officer May Elect Mode.— In 
 
 some cases the statute authorizes this method of service to 
 be resorted to at the option of the officer or other party 
 who has the notice in charge to serve, regardless of whether 
 service might not be had upon the party in person.* But in 
 other cases it is only permitted when personal service is 
 impracticable.^ In order to justify the leaving of the notice 
 or writ, with any one other than the person to be notified, 
 it is necessary not only that it should appear to be the most 
 convenient and expeditious method of disposing of the mat- 
 ter, but that it was the only practicable method at the time. 
 It is not sufficient for the return to show that the party 
 was absent from his residence where the paper was left, but 
 that he could not be found within the jurisdiction of the 
 court.^ 
 
 § 1347. Leaving at Place of Residence. — Under a stat- 
 ute requiring a summons to be delivered to the person served, 
 or left at his place of residence, it is not sufficient to leave 
 a copy at his place of business, unless it is also where he re- 
 sides at the time.* And where it is required, in the event 
 that it is not served personally, that it shall be left at de- 
 fendant's usual place of abode, with a member of his family, 
 etc., the summons will not be sufficiently served by leaving 
 it with his wife unless it be left with her at the husband's 
 place of abode as the statute requires.-^ 
 
 § 1348. Family of Which Party is a Member. — But it 
 will be a sufficient compliance with the statute, so far as it 
 relates to the person with whom it is to be left, if such per- 
 son be a member of the family to which the party belongs, 
 whether he be the head of the family or not. It is sufficient 
 if the party to be served, and the one with whom the paper 
 is left, live together in the same family.^ 
 
 1 Hughes V. Osborn, 42 Ind., 450 ; Rosseau v. Gay aire, 24 La. Au., 855. 
 
 2 Davis V. Burt, 7 Iowa, 56 ; Chittenden v. Hobbs, 9 id., 417. 
 3Matteson v. Smith, 87 Wis., 333. 
 
 < Lambert v. Sample, 25 Ohio St., 336. 
 3 Hewitt V. Weatherby, 57 Mo., 276. 
 b Converse v. Warren, 4 Iowa, 158.
 
 C70 PRACTICE AJSTD PLEADING. 
 
 § 1 349. Must be at Present Place of Abode. — Courts of 
 equity are equally strict in enforcing the observance of the 
 rules governing the service of process, when their subpoenas 
 are served otherwise than personally, in the strictest sense 
 of the term. It has accordingly been held that it will not 
 be sulBcient to leave a subpoena at the last usual place of 
 abode, but that it must be left at the lyresent dwelling-house 
 or usual place of abode of the party served.^ 
 
 § 1350. Necessity for Strict Construction. — The neces- 
 sity for a strict construction of statutes authorizing the sub- 
 stitution of this method of service, for that which brings the 
 matter directly to the knowledge of defendant, is fairly illus- 
 trated by the recent case of Earle v. McYeigh.- There the 
 statute seemed sufficiently accommodating to satisfy the 
 eagerness of the most persistent prosecution ; for it provided 
 that, during the absence of the defendant and all the mem- 
 bers of his family, notice of suit might be served by posting it 
 upon the front door of his usual place of abode. The defend- 
 ant in this case had vacated his residence, with his family, 
 seven months previous to the attempted service, and they had 
 ever since resided within the Confederate lines. The notice 
 was accordingly posted upon the front door of the tenantless 
 house, and defendant appearing by attorney, the appearance 
 was stricken out, because of the very absence alleged as a 
 ground for the spurious service of process. The learned jus- 
 tice of the supreme court who rendered the opinion not onl}' 
 took occasion to reprobate the striking out of defendant's 
 appearance in response to the notice, but decided, with the 
 full concurrence of the entire bench, that the place where 
 the notice was posted was not defendant's " usual place of 
 abode," and hence the service was not suiUcient to warrant 
 the judgment, which was declared void. It appears from a 
 reference to this and other of the best considered cases upon 
 this subject, that service made in this manner must be in 
 
 iHyslop V. Hoppock, 5 Ben., 447; S. C, 6 Bankr. Reg., 552; Pigott v. 
 SneU, 59 lU., 106. 
 2 91 United States (1 Otto), 503.
 
 SEKVICE. 671 
 
 strict conformity to the statute by which it is authorized. 
 And in no respect are the courts more exacting than in the 
 matter of thej'^Zace where the notice or copy should be left. 
 If it is required to be the " place of abode," the proof of 
 service must be in language that will describe that place 
 and no other,^ It will not be sufficient that it is served at 
 the defendant's "house," for he may have many houses. 
 jSTor even at his " dwelling-house," for circumstances may 
 render this equally indefinite. And we have seen by the 
 case last cited that mistakes may easily be made in deciding 
 what is the " usual place of abode." It is not sufficient that 
 the premises are the property of defendant; that he has 
 resided there, and may reasonably be expected to make that 
 his dwelling-place in the future. It should be his present 
 place of abode, and the qualifying word "usual" is em- 
 ployed simply to meet cases where the abiding place of the 
 defendant is capriciously changed at uncertain intervals 
 from that where he is accustomed to reside, and which he 
 calls his home. Mere absence from home, it is true, wiU 
 not destroy the cliaracter of the " place of abode ; " but when 
 the defendant has, with his family, taken up his residence 
 elsewhere, he cannot be said to have an abiding place at his 
 former residence, for the present abandoned.- 
 
 § 1351. Actions Against Property.— When the object 
 of the action is to affect the title to property, either real or 
 personal, the notice may be served by methods still less 
 direct than that above described, as by posting notices in 
 public places,^ and by publication in a newspaper,^ Avhen 
 there must be a strict comphance with the statute in every 
 substantial particular.* 
 
 § 1352. Personal Service in Foreign State. — There is 
 another mode of service which has been adopted in several 
 
 1 See case cited supra. 
 2Earle v. McVeigh, supra. 
 
 3 People V. Bernard, 43 Cal., 385. 
 
 4 See ante, ch. XI, Publication of Notices.
 
 672 PEACTICE AXD PLEADING. 
 
 of the states, and may be resorted to in actions in rem, 
 when the defendant is beyond the territorial jurisdiction of 
 the court, and that is by serving him in person in the 
 foreign state.^ But such service will not support a personal 
 judgment in the state from Avhence the process issues.- 
 Where a suit was brought under such a statute, the judg- 
 ment was set aside because it did not a])pear affirmatively 
 from the affidavit by which the service was proved, that the 
 copy of petition and notice were delivered to the defendant 
 at some place without the state, and within the United 
 States.^ It has also been held under a similar statute in an- 
 other state, that this mode of service could only be employed 
 where publication had been ordered, and that such service 
 would not be complete until the expiration of the time of 
 publication.^ 
 
 § 1353. Proof of Foreign Service. — It cannot be doubted 
 that service made in this manner will be more effective as 
 notice to the parties to be affected by the action or proceed- 
 ing, than where it is published in a newspaper or posted in 
 "public places." But considerable care is necessary in 
 proving such service, lest the court be imposed upon by a 
 supposititious delivery of the notice to the non-resident 
 party. It was accordingly held in one case, that where 
 service was made by this mode, it should be shown by the 
 affidavit of service that the notice was served upon the 
 identical person; the affidavit of his aclmowledgment of 
 identity not being sufficient.^ 
 
 § 1354. Acknowledgment of Service. — However, where 
 the statute provided that an original notice might be served 
 by having the acknowledgment of service indorsed upon 
 the notice dated and signed by the defendant, a notice so 
 served was held to require no further formal proof of serv- 
 
 1 Salisbury v. Sands, 2 Dill., 270; Darrance v. Preston, 18 la., 396. 
 
 2 Weil V. Lowenthal, 10 Iowa, 575. 
 
 3 Fisher v. Fredericks, 33 Mo., 612. 
 
 4 Brooklyn Trust Co. v. Bulmer, 49 N. Y., 84 
 8 Cole V. AUen, 51 Ind., 123.
 
 SERVICE. 
 
 ice than such acknowledgment, and that a waiver of service 
 so indorsed was equivalent to such acknowledgment, and 
 was good thouo^h made in another state.' 
 
 o 
 
 § 1355. Sei'Tice by Mail. — Xotice of the dishonor and 
 protest of bills of exchange may be served by simply de- 
 positing the same in the postoflfice, properly addressed to 
 the antecedent party to be notified.- But though service 
 may be made by this mode, of such notices as are required 
 in practice, they cannot be served in this manner with tlic 
 same conclusive effect for all purposes upon the party served, 
 as would foUoAv a similar service of notice of protest, or 
 personal service of original process. In matters of practice, 
 service by this method is only resorted to as a substitute 
 for, or an adjunct to, service by publication in a newspaper, 
 and of course process so served would not authorize a per- 
 sonal judgment. Such service is usually made upon the 
 order of the court. ^ Even when the statute authorizes the 
 service of summons outside of the county in which the suit 
 is instituted, where the action is on contract, this will not 
 authorize service in actions on the case for damages for al- 
 leged fraud and deceit in making a contract.* The service 
 of process by mail is only authorized under certain condi- 
 tions, and as a general rule, when a party relies upon service 
 obtained by this mode, he should be able to make it appear 
 that such conditions were in existence at the time ; other- 
 wise such service will be insufficient." When the deposit of 
 a notice, addressed to the defendant, is by statute made one 
 of the steps in obtaining constructive service by publication, 
 there is the same necessity for a strict observance of the 
 duties imposed by law, in regard to the mailing, as there is 
 
 1 Johnson v. Monell, 13 Iowa, 300. But see Chickering v. FaQes, 26 
 Dl., 507, where it is held that acknowledgment of service will not be 
 sufficient; McDaniel v. Correll, 19 111., 226. 
 
 2 See ante, ch. X, part IV. 
 
 3 Wilson V. Basket, 47 Miss., 637. 
 
 4 Wirtz V. Henry, 59 111., 109. 
 
 5 Clark V. Adams, 33 Mich., 159. 
 
 43
 
 G74 PEACTICE AND PLEADING. 
 
 for publishing the notice the requisite number of days.' So 
 where the proof of service, in addition to the publication, 
 was that a paper containing a copy of the notice published 
 Avas deposited in the postoffice, directed to two defendants 
 composing a firm, by their firm name, mentioning the ini- 
 tials of their Christian names, such service was held insuffi- 
 cient, for the reason that a copy of the notice should have 
 been sent to each. Being addressed to both, its receipt by 
 either was regarded as uncertain, so that it was held pvima 
 facie void as to both.- 
 
 § 1356. Chancery Proceedings in United States Court. 
 The substituted service provided by state laws is not allow- 
 able in suits in equity in the United States courts held 
 within those states. The manner of serving a subpoena in 
 chancery is regulated by the acts of congress and the rules 
 of the United States supreme court. The service must be 
 within the district for which the federal court is held, or it 
 will not confer jurisdiction of the person served.^ 
 
 § 1357. On Board Foreign Tessel. — Process may be 
 legally served on a defendant while he is still on board a 
 British mail steamer, after her arrival at the dock in an 
 American port, but before she is moored.* 
 
 § 1358. Non-resident Temporarily Within Jurisdic- 
 tion. — "Where " further notice " was provided by statute 
 for non-resident defendants,'^ it was held that when such 
 non-resident was actually found and served within the com- 
 monwealth, he was not entitled to any further notice ; but 
 the service would be regarded as sufficient.*^ This would 
 depend, however, to some extent, upon the circumstances 
 by which he was influenced or induced to come within the 
 state where served. A party to a suit in chancery, pending 
 
 1 Scorpion S. M. Co. v. Marsano, 10 Nev., 370. 
 
 2Lildns V. McCormick, 39 Wis., 313. 
 
 SHyslop V. Hoppock, 5 Ben., 533; McClosky v. Cobb, 2 Bond, 16. 
 
 4 Peabody v. Hamilton, 106 Mass., 317. 
 
 5 Mass. Gen. Stat., ch. 123, § 28; id., ch. 126. 
 SReeder v. Holcomb, 105 Mass., 93.
 
 SERVICE. 675 
 
 m a state where he does not reside, "who comes within such 
 state for the purpose of testifying before a master, though 
 he comes without siibpmna testijicanduni, has been held ex- 
 empt from the service of process during his sojourn for that 
 purpose.^ So where a person has been fraudulently enticed 
 ^vithin the jurisdiction of the court merely for the purpose 
 of obtaining service of process in a contemplated suit 
 against him, such service may be set aside and vacated as 
 irregular." But where a citizen of another state, claiming 
 to have been enticed within the territorial jurisdiction of 
 the court for the purpose of obtaining service, suffered 
 judgment to go by default, and afterwards came in and 
 asked to have it set aside on the gi'ound of the fraudulent 
 manner in which service was obtained, the court held that 
 his objection came too late. It should have been raised on 
 the return of the summons.' Defects in regard to service 
 of process, as well as an}^ other steps taken to obtain juris- 
 diction of the party, may be waived by voluntary appear- 
 ance,* but not by special appearance, for the purpose of 
 raising the objection to the process." There must be some 
 act done or word spoken in court in connection with the 
 case.® 
 
 § 1359. Suiiday or Legal Holiday. — Service of process 
 on Sunday or upon a legal holiday is clearly irregular, and 
 may be pleaded in abatement or set aside on motion. But 
 when the case has been allowed to go to judgment by de- 
 fault, on such irregular service, the judgment will neither 
 be held void nor reversible on account of the irregularity.'' 
 
 "Dungan v. Miller, 37 N. J. L., 182; Huddeson v. Prizer, 9 Pliila., 65. 
 
 2 Baker v. Wales, 45 How. Pr., 137; S. C, 14 Abb. Pr. (N. S.), 331; 
 LagraA-e's Case, id., 334; Carpenter v. Spooner, 2 Sandf., 717; Hevener 
 V. Heist, 9 Phila., 274. 
 
 3 Marsh's Adm'rs v. Ba.st, 41 Mo., 493. 
 
 * Stewart v. Hibernia Banking Association, 78 111., 596; People v. Bur- 
 ton, 65 N. Y., 452. 
 5 Simcock v. Fii-st National Bank of Emporia, 14 Kan., 529, 
 6Rhoades v. Delaney, 50 Ind., 468; Steiubach v. Lesse, 27 Cal., 295. 
 7 Comer v. Jackson, 50 Ala., 384.
 
 676 PKACTICE AND PLEADING. 
 
 § 1360. Reference to Other Chapters. — Defects most 
 frequently occur in the constructive service of process, espe- 
 cially when it is by publication in a newspaper. Many 
 instances of defective service also arise in notifying parties, 
 to bills and notes of the dishonor of such paper. The suf- 
 ficiency or insufficiency of the service of original process 
 and other notices used in practice will necessarily be ren- 
 dered manifest by the return of the ofiicer or other person 
 by whom the service is made, and will accordingly be con- 
 sidered in the next succeeding part of this chapter. To 
 avoid useless repetition and reiteration of authorities, the 
 reader is referred to the chapters and parts of chapters 
 where those topics are separately treated.^ 
 
 iSee ch. I, part 11; ch. XI ; ch, X, part IV; fiost, part vm.
 
 THE KETUEN. 677 
 
 YIII. The Eetukn. 
 
 § 1361. General Eemarks. 
 
 1362. Nature and Purpose of Return — Foim and Sufficiency. 
 
 1363. When Name of Officer Not Used. 
 ' 1364. Wlien Service Without the State. 
 
 1365. Should Show Compliance with Statute. 
 
 1366. To the Pi-oper Term. 
 
 1367. Contents of Retirrn. 
 
 1368. Further Hlustration. 
 
 1369. Immaterial En-ors. 
 
 1370. Defects Cured by Recital in Judgment. 
 
 1371. Judgment by Default on Insufficient Return, Void. 
 
 1372. Examples of Defect Fatal to Judgment. 
 
 1373. Return Contradicted by Record. 
 
 1374. Examples of Defective Returns. 
 
 1375. What Deemed Sufficient. 
 
 1376. When Served on Officer of Corporation. 
 
 1377. Inference from General Language of Return. 
 
 1378. Return Cannot be Contradicted. 
 
 1379. Exceptions to Above. 
 
 1380. Presumptions in Favor of Return. > 
 
 1381. May be Amended. 
 
 1382. Aided by Presumption. 
 
 1383. Aided by Parol Evidence. 
 
 1384. Aided by Contents of Bill. 
 
 1385. Conflicting Views as to Impeaching Return. 
 
 § 1361. General Remarks. — The importance of there- 
 turn, by which the sufficiency of the service is usually tested, 
 is second only in importance to the service itself. Being a 
 ministerial duty which frequently devolves upon an igno- 
 rant, irresponsible deputy, its careless execution is often 
 fruitful of vexatious and expensive delays in the adminis- 
 tration of justice, and where it accurately recites an ante- 
 cedent failure of duty in not properly serving the process, 
 may drive the party injured by the neglect to further liti- 
 gation, in order to recover the ground lost through official 
 negligence or incapacity. 
 
 §1362. Nature and Purpose of Return — Form and 
 Sufficiency. — The object and purpose of the return is to
 
 078 PKACTICE AND PLEADING. 
 
 prove the service of the paper returned. The return should 
 be in writing; but, as will be seen in another place, this is 
 not an inflexible rule.^ When written, it must be signed by 
 the person maldng the service, and if by a deputy should 
 be in the name of the officer for whom he acts, by the 
 deputy ; for the law does not recognize, nor the courts take 
 notice of, the acts of a deputy sheriff, marshal or constable, 
 except as the acts of his superior.- And where the record, 
 after judgment, showed a return of original process, made 
 in the name of the deputy instead of the sheriff himself, 
 the judgment was declared void.^ When, however, the 
 service is within the county, by the sheriff, in signing the 
 same it is not necessary that his name and title should be 
 followed by the name of the county within which he acts 
 officially. The court will be presumed to know its own 
 officers.* 
 
 § 1363. When Name of Officer Not Used.— This rule, 
 however, applies only to deputies Avho act for and under the 
 directions of a duly commissioned officer. When, to meet 
 an emergency, it becomes necessary for the court to appoint 
 a special deputy or elisor^ the necessity for the employment 
 of the regular officers name ceases, and the return is made 
 m the name of the special officer, by whom the notice is 
 served.^ When, as is frequently the case, the notice is 
 served by a person who acts in no official capacity what- 
 ever, but performs the functions of an officer in serving 
 notice, at the request of one of the parties, it is necessary 
 that the return should be verified by his affidavit, and such 
 affidavit should accompany the return.^ And when a return 
 so verified is filed with the clerk of the court, it is so favor- 
 ably regarded that it will, at least, be held to satisfactorily 
 
 1 See posf, §1383. 
 
 2Bolar(l V. Mason, 66 Pa. St., 138. 
 
 3 Rowley v. Howard, 23 Cal., 401. 
 
 < Chittenden v. Hobbs, 9 Iowa, 417; Davis v. Burt, 7 id., 56. 
 
 6Glencoe v. People, 78 lU., 383. 
 
 eOiffee v. Gates, 28 Ark., 43; State Bank v. Marsh, 10 Axk., 139.
 
 THE KETUEN. 679 
 
 establish the fact of service, until the same is denied in an 
 equally solemn manner, though such sworn return may be 
 lost or mislaid by the clerk. ^ 
 
 § 1361. When Service Without the State.— When 
 there is personal service of notice outside of the state from 
 whose court the same issues, the return should be verified ; 
 for the reason that, by whomsoever the paper is served, 
 whether an officer or a private person, it must be regarded 
 where the notice is returnable as an unofficial act. If the 
 service is by the sheriff of the court, it cannot be proved by 
 his unsworn certificate, because the act was performed vvdiere 
 his official character was not recognized. And if it be 
 served by any other sheriff or officer, who is not an officer 
 of the court, verification is necessary, because the service is 
 by one who is unknown in the coart where his certificate is 
 offered.- 
 
 § 1365. Should Show Compliance with Statute. — 
 Where jurisdiction depends upon the service of notice, it is 
 necessary that the statute by which the proceeding is au- 
 thorized should be closely followed, and that the return 
 should show a substantial compliance with its requirements, 
 in all essential particulars.'^ The time of service should be 
 correctly stated, and where a return stated that the notice 
 had been served at " 11 M.," it w^as held defective and the 
 service to be set aside on motion made for that purpose.* 
 
 §1366. To the Proper Term. — The original process 
 when served should be returned to the proper term ; but if 
 the time of holding the court be changed by statute after 
 
 1 Estate of Robinson, 6 Mich., 137. The service of notice of appeal 
 may be proven by aflSdavit in the appellate court. It has been held of 
 no consequence that the record failed to show service of such notice, 
 when it was supported by the affidavit of the person serving the same. 
 Mendioca v. Orr, 16 Cal., 368. 
 
 2 It should appear by the return that the service was had at a place 
 within the limits prescribed in the act. Fisher v. Fredericks, 83 Mo., 
 613. 
 
 3 Bendy v. Boyce, 37 Tex., 443. 
 
 * Hodges V. Brett, 4 Green (la.), 345; Milbourn v. Fouts, id., 346.
 
 680 PKACTICE AND PLEADING. 
 
 the issuance of the summons, without requiring such writs 
 to be returned for correction, they should be returned to the 
 next subsequent term.' Unless the return day is changed 
 by statute, it remains as fixed by law. Any alteration made 
 by the court or clerk will not authorize a return at a differ- 
 ent time than that prescribed.- 
 
 § 1367. Contents of Return. — What the written return 
 should contain depends of course upon the manner and 
 mode of service ; but whatever mode is adopted, the return 
 should state the facts in detail. It is not sufficient to em- 
 ploy the word " due " to express to the satisfaction of the 
 court that the duty has been properly executed. " Due 
 service," and " duly served," when used in the return of 
 legal process, mean nothing, because they come from an offi- 
 cer not supposed to use them advisedly, as they are expressive 
 of a conclusion of law. The sheriff, when he returns that 
 the paper has been duly served, assumes the province of the 
 court in attempting to determine what amounts to valid 
 service. The manner of serving the process sliould be 
 described so that the court may be able to judge of its suffi- 
 ciency.^ A return which undertook to state all the neces- 
 sary facts in the single word " executed," was held insuffi- 
 cient.* But it was held in one case that the words " Keceived 
 in office, August 22, ISTO," and "Executed August 22, 1870," 
 followed by the sheriff's name and title, and copied into the 
 transcript immediately after the summons and complaint, in 
 the absence of objections in the trial court, showed a suffi- 
 cient service which could not be questioned after judgment 
 by default.'^ This case is certainly not in harmony with 
 the majority of those where the same question is considered, 
 for the reason that the return does not recite facts sufficient 
 to enable the com-t to judge of the sufficiency of the serv- 
 
 1 Freeman v. Thompson, 53 Mo., 183. 
 -Crowell V. Galloway, 3 Neb., 315. 
 SBotsford V. O'Connor, 57 111., 72. 
 *Merritt v. White, 37 Miss., 438. 
 ^Lenoii- v. Broadhead, 50 Ala., 58.
 
 THE RETURN. C81 
 
 ice. However, another case from the same com't is scarcely 
 less at variance with the current of authority.^ There it 
 was decided that a subpoena issuing out of a court of chan- 
 cery, directed to all the defendants, and returned "Executed 
 on the parties, this October 1, 1S70, with copy," suiEciently 
 showed a proper service of the process. 
 
 § 1368. Furtlier Illustration. — The recital on a re- 
 turn — " Executed by delivering a true copy," with the date, 
 is certainly fuller and more complete in its recitals than 
 either of the two foregoing, and yet this was held insuffi- 
 cient.- But where the return was in the words following : 
 " Executed on the within-named J. J. M. this October 12, 
 1870, by ijersonal service ; co])y waived ; " ' or, " Executed 
 31st March, 1859, by delivering to the defendant a true 
 cop}'^ of this writ, together with the certified copy of peti- 
 tion,"'* in both these cases it was held to be sufficient, 
 becausis there was such a description of the manner of ex- 
 ecuting the process that the court was enabled to determine 
 whether the defendant had been proiDcrly served. 
 
 § 1369. Immaterial Errors. — A trifling variance, such 
 as is not calculated to mislead, between the writ and the 
 return, would not be sufficient to vitiate the latter. As 
 where the original notice was against " Luther Burt," and 
 the return was of service on " L. Burt," the difference was 
 held immaterial.^ 
 
 § 1370. Defects Cured by Recital in Judgment. — It has 
 been held that a recital in the judgment or decree, of due 
 service of process upon the defendant, is sufficient to cure 
 all defects in the service and return, of which advantage 
 was not taken at or before the trial, by objecting to the 
 irregularity.^ In other Avords, that the judgments cannot 
 
 'Florence v. Paschal, 50 Ala., 28. 
 2 Woodliff e V. Connor, 45 Miss. , 553. 
 3 Milam v. Strickland, 45 Miss., 721. 
 *Hill V. Grant, 33 Tex., 132. 
 
 5 Davis V. Burt, 7 Iowa, 5G ; Johnson v. Jones, 2 Neb., 126. 
 
 6 Morrow v. Wee J, 4 Iowa, 77, 87, and cases cited.
 
 682 PRACTICE AND PLEAd'iNG. 
 
 be attacked collaterally, on account of irregularity in the 
 process, provided it appeared from the record that any 
 process at all had been served. This doctrine, which seems 
 to be evolved by a sort of circular reasoning, where prem- 
 ises and conclusion are constantly changing places, is 
 maintained in the interest of the finahty of judgments. It 
 is said that the record shows due service, and even though 
 the judgment was by default, the presumption is that the 
 question of service and return of process were submitted to 
 the court and passed upon. The record declares that the 
 defendant Avas properly served. Consequently, that fact 
 cannot be collaterally denied. But the jurisdiction of the 
 court to make a record in the case depends upon the service 
 of process. This requirement is met by the assertion tliat 
 jurisdiction is shown by the record. So the service of 
 process makes the record, and when this fails, the record 
 may make itself by assuming the facts upon which its ex- 
 istence depends. The court has no jurisdiction to hear and 
 determine the issues between parties litigant until the de- 
 fendant has been duly served with process ; yet, without 
 due process, the court may decide, as a matter of fact, that 
 process has been duly served, and upon the jurisdiction thus 
 assumed render judgment against defendant, of Avhich he 
 has no notice, and consequently cannot appear and attack 
 it by a direct proceeding until, perhaps, it is too late. This 
 is the unfortunate position the defendant would occupy in 
 a case where the service was otherwise than strictly per- 
 sonal, and the return correctly stated the manner in which 
 the process was served. 
 
 § 1371. Judgment by Default on Insufficient Return, 
 Toid. — Jurisdiction has been fairly described as the power 
 of the court to act upon a given state of facts, and when 
 such facts are properly alleged before it, and the farties are 
 properly notified, to decide whether they exist; and the 
 judgment upon them is conclusive until reversed by a direct 
 proceeding.^ But when any other mode of obtaining juris- 
 
 iWanzer v. Howlaiid. 10 Wis.. 8. 16.
 
 THE RETURN. 683 
 
 diction of the person is substituted for personal service, the 
 statutory method must not only be followed in every essen- 
 tial particular, but, unless the return affirmatively shows 
 this, any judgment rendered against the defendant by default 
 should be treated as a nullity.^ So, where a rule of court, 
 having the force of a statute, required the return to show 
 that a copy of the summons was delivered to the defend- 
 ant, or, in case of Ms absence, was left with a member of 
 his family, etc., it w^as held that, before a service made by 
 leaving a copy of the summons with any one else than the 
 defendant himself could be held valid, it must affirmatively 
 appear from the return that the person serving the process 
 could not find the defendant.'- 
 
 § 1372. Example of Detect Fatal to Judgment. — In 
 order to sustain a judgment jpro confesso^ the return of 
 process, served by leaving a copy with another person, must 
 show that the officer informed the person with whom the 
 copy w-as left of the contents thereof.^ The return should 
 also show the ])lace where the service Avas made, and in case 
 of judgment by default, an omission in this respect will not 
 be supplied by any legal presumptions in favor of jurisdic- 
 tion/ In the case of Pollard v. Wegener,^ the importance 
 of the return as a part of the record is fairly illustrated, 
 and the doctrine of the nullity of judgments founded upon 
 insufficient service is abl}'' maintained. In that case the 
 governing statute required that every subpoena or process 
 for appearance should be served by giving the defendant 
 " a copy thereof, or by leaving a copy thereof at the dwell- 
 ing-house or usual place of abode of the defendant, with 
 
 1 Pollard V. Wegener, 13 Wis., 569; Kjiox v. Miller, 18 Wis., 397; Rape 
 V. Heaton, 9 Wis., 328. 
 
 2 Matteson v. Smith, 37 Wis., 333 ; Nortlu-up v. Shepbard, 23 Wis., 513. 
 
 3 Tompkins v. Wiltberger, 56 111., 385. 
 
 <Sayles v. Davis, 20 Wis., 302. The service being by one not an offi- 
 cer of the court, the return was held defective for not stating that coi^y 
 was left at a place within the jurisdiction. See, also, Pigott v. SneU, 
 59 111., 106. 
 
 ^ Supra, § 1371.
 
 C84: PKACTICE AND PLEADING. 
 
 some person of the age of ten years or upwards, to whom 
 the nature of such process shall be explained," The record 
 of a suit for divorce, the decree in which was collaterally 
 called in question, recited that, " It further appearing that 
 said subpoena was duly served upon said defendant by the 
 sheriff of said county more than ten days before the return 
 day thereof," etc. The return of the officer was, as ap- 
 peared by the record, in the following words : " I hereby cer- 
 tify that I duly served the within subpoena by leaving a true 
 copy thereof at the defendant's last and usual place of res- 
 idence, in said count}^, this — ," etc. The return failed to 
 state either that the copy was left with a person of the pre- 
 scribed age, or that the contents of the copj' were explained 
 to the person with whom the same was left ; both of which 
 were important requirements.^ There was no appearance 
 in response to the subpoena, and a decree was rendered for 
 plaintiff, dissolving the bonds of matrimony and directing 
 defendant to reconvey to plaintiff certain real estate con- 
 veyed by plaintiff to her in consideration of the marriage. 
 It was the latter part of the decree that was questioned in 
 the case cited, which was an action of ejectment between 
 the divorced wife and the grantee of the husband, who 
 claimed title under the decree. Dixon, J., in rendering the 
 opinion, said, referring to the earlier case of Eape -y. 
 Heaton: ^ " The broad and rational doctrine that we may, 
 in all cases where a decree or judgment is relied ujDon as 
 the foundation of a legal right, inquire into the facts which 
 by law are made necessary to the jurisdiction of the court 
 or tribunal by which it was pronounced, and if it ajjpears 
 that such facts did not exist, disregard such decree or judg- 
 ment as unauthorized and void, is there asserted, and, as we 
 think, maintained by a process of reasoning which cannot 
 well be answered. * * * Hence, the recitals contained 
 in the record before us, that the plaintiff in error was duly 
 served with process of subpoena in the action for a divorce, 
 
 1 Hendley v. Baccus, 33 Tex., 338; Vandiver v. Roberts, 4 W. Va., 493. 
 ^ Supra, § 1371.
 
 THE KETURN. 685 
 
 are not now, and could not, if the record were silent as to 
 the manner of the attempted service, be conclusive of the 
 fact that she was so served. For until the court, by a 
 proper ser\'ice of process, had jurisdiction of her person, it 
 was powerless to bind or conclude her upon that or any 
 question which might arise in the action." ^ 
 
 § 1373. Return Contradicted hj Record. — In this case, 
 the record invoked in support of the title of the husband's 
 grantee bore upon its face the evidence of its own defi- 
 ciency. Its recital of due " service " was flatly contradicted 
 by that portion of the same record where the return was 
 set out ; but the court goes farther in declaring the rule, 
 that even when the record does not disclose the manner of 
 service, it may be otherwise shown, and the judgment 
 thereby invalidated. 
 
 § 1374. Examples of Defective Returns. — Where the 
 lano-uao^e of the return was that there was " delivered." etc., 
 " a copy of this writ, and a copy of the petition," without 
 stating what petition, the return was held insufficient- So 
 where it merely shows that the copy was left at a particular 
 place, without stating to whom the same was delivered.* 
 And where it was expressed in the following words : " Exe- 
 cuted by personal service; or, executed on defendant in 
 jjerson," the return was held defective for not showing the 
 delivery of copies as required by statute.* 
 
 § 1375. What Deemed SuflScient. — Where the statute 
 required the service of process, by leaving a copy thereof 
 posted at the front door of defendant's usual place of abode, 
 it was held that the return must not only state that a copy 
 was posted at such front door, but that it was left posted 
 there.^ But where the language of the return was " exe- 
 
 J PoUard v. Wegener, 13 Wis., 572-78. 
 2Tullis V. Scott, 38 Tex., 537. 
 
 3 Melvin v. Clark, 45 Ala., 285. See, also, Rankin v. Dulaney, 43 Miss., 
 197. 
 
 4 York V. Crawford, 42 Miss., 508; Davis v. Patty, id., 509. 
 6 Lewis V. Botkin, 4 W. Va., 533.
 
 QS6 PRACTICE AND PLEADING. 
 
 cuted personally with original and copy, defendant claiming 
 such," it was held sufficient.' So, also, where the return 
 Avas in the words, " delivered a copy to defendant in per- 
 son." - In brief, what is required of the return is, that it 
 shall contain a trnie and full recital of the acts of the officer 
 done and performed in serving the process. The order in 
 Avhich the facts are stated is immaterial, provided every- 
 thing requisite appears in the return. Whatever is omitted 
 therefrom will be presumed not to have been done by the 
 officer, in making the service.^ 
 
 § 1376. When Served on Officer of Corporation.— 
 When the adverse party to the proceeding is a corporation, 
 the return should state the name of the officer upon whom 
 the service was made. It will not be sufficient if it merely 
 recites that the corporation was served.^ But when the 
 proper officer of a corporation to be served was the presi- 
 dent, and the return recited that the cashier was served 
 instead, and as an excuse for the substitution stated that the 
 president was not to be found in the county where the suit 
 was brought, such return was held to be sufficient evidence 
 of proper service.* 
 
 § 1377. Inference from (general Langnage of Retnrn. — 
 Where the return of service in a case arising under the 
 chancery practice was in the words, " Served the within 
 jiamed by leaving a true copy with the within named," 
 there being several persons mentioned in the subpoena who 
 were to be served, it was held that the court would infer 
 from the language used in the return that a copy was de- 
 livered to each of the defendants mentioned in the process.^ 
 
 § 1378. Return Cannot be Contradicted. — In general, 
 the return of the officer cannot be contradicted by the par- 
 
 1 Presley v. Anderson, 42 Miss. , 274. 
 
 2 Carter v. Daizy, 42 Miss., 501. 
 
 3 Mitchell V. Greenwald, 43 Miss., 167; Moore v. Coats, id., 225; Naron 
 V. Gwin, id., 346; Rankin v. Dulaney, 43 Miss.. 197. 
 
 ■* Grand Tower Mining, etc., Co. v. Scliirmer, 64 111., 106. 
 5 Reed v. Tyler, 56 111., 288. 
 fiGreenman v. Harvey, 53 111., 386.
 
 THE RETURN. 687 
 
 ties. As it is made, it will be held, in most cases, as con- 
 clusive upon both plaintiff and defendant until amended.' 
 At least, it is held that it cannot be collaterally impeached, 
 but resort must be had to a direct proceeding for that pur- 
 pose.- 
 
 § 1379. Exception to Above. — However, in one case 
 where the return showed due service by leaving a copy of 
 the summons, etc., at the usual place of abode of defend- 
 ant, when, in fact, such process was left at the residence of 
 his father, and defendant heard of the judgment against 
 him only at the next succeeding term, when he moved to 
 have it vacated; upon proving that he had not received 
 notice of the suit until after judgment, it was held that such 
 judgment should have been vacated.' And in another case, 
 where the return was called in question, it was held that 
 the court might hear evidence, and decide whether or not 
 the place at which the service was made was defendant's 
 residence.* So, where suit was brought on a judgment ren- 
 dered in the court of a foreign state, and the return recited 
 that the defendant Avas personally served with process, it 
 was held that the defendant might show, in direct contra- 
 diction of the record, that he was not so served, and 
 thereby invaUdate the judgment upon which the suit Avas 
 brought.^ 
 
 § 1380. Presumptions in Fayor of Beturn. — But the 
 recital in the officer's return, that the summons was person- 
 ally served, makes more than a mere jyr'ima facie case in 
 favor of the validity of a judgment rendered in pursuance 
 thereof. The presumptions in favor of its correctness are so 
 great that it requires the strongest kind of emdence to over- 
 come the effect of the simple statement in the return, show- 
 
 iRowell V. Klein, 44 Ind., 290; Johnson v. Jones, 2 Neb., 126. 
 
 2 Mueller v. Bates, 2 Disney (Ohio), 318. 
 
 3 Dasher v. Dasher, 47 Ga., 320. 
 
 4 Bond V. Wilson, 8 Kan., 228. 
 
 sKnowles v. Gaslight & Coke Co., 19 "Wall., 58; Thompson v. Whit- 
 man, 18 WaU., 457.
 
 688 ' PKACTICE AND PLEADING. 
 
 ing good personal service. It is not subject to rebuttal by 
 the same evidence as any statement of a witness, or allega- 
 tion in the pleadings.^ 
 
 § 1381. May l)e Amended. — "Where anything is by mis- 
 take or inadvertence omitted from the return, which is 
 essential to give binding force to the judgment, it may be 
 supplied by amendment.^ And such amendment may be 
 made in order to make the return consistent with the facts, 
 even after the expiration of his term of office.' jSTeither is 
 the power of amendment limited to the time before the 
 rendition of judgment, but the return may be so amended 
 as to conform to the facts, afterwards.'* Permission, w^hen 
 granted, to amend the return on a notice, does not go to the 
 extent of authorizing the officer to alter or amend the 
 notice itself. As where it was a notice of motion with a 
 blank space left therein for the day of the next term on 
 which the motion would be made, and for the name of the 
 mover, these blanks could not be filled on pretense of 
 amending the return.^ It may be proper to remark that 
 notice of the application to amend a return is generally re- 
 quired. Not so, however, when both parties, or their attor- 
 neys, are present in court when the application is made.^ 
 
 § 1382. Aided hj Presumption. — The return of service 
 of notices, and even of original process, may be aided in 
 divers ways besides amendment, when upon its face it does 
 not appear sufficient to warrant the proceeding noticed. An 
 instance of this kind is where, in a suit pending in the 
 United States court against a corporation, which might, 
 under authority of an act of congress, be served through 
 one of its directors, and it appeared from the return only 
 that the marshal had served the process upon S., " reported 
 
 ^DavanttJ. Carleton, 53 Ga., 491; Starkweather v. Morgan, 15 Kan., 
 274. 
 2 Toledo, etc., R. E. Co. v. Butler, 53 lU., 323. 
 3McClure v. Wells, 46 Mo., 311. 
 4Kii-kwoocl V. Reedy, 10 Kan., 453. 
 
 5 White V. Sydenstricker, 6 W. Va., 46. 
 
 6 National Insurance Co. v. Chamber of Commerce, 69 HI., 22.
 
 THE KETURN. 680 
 
 to be one of the directors," etc., and it being shown by the 
 record, on error, that S. was at a previous time one of the 
 directors, the court presumed, in the absence of evidence to 
 the contrary, a continuance of the rehation of director, from 
 the time shown by the proof, down to the time of service, 
 and accordingly overruled the objections to the return.* 
 
 § 1383. Aided by Parol Evidence. — So when the return 
 is lost, the service may be proven by parol evidence.- And 
 when the return fails to state all the facts necessary to a 
 good and sufficient service, to prevent a failure of justice, 
 the service has been pennitted to be shown in any other 
 manner to the satisfaction of the court.^ 
 
 § 1384. Aided by Contents of Bill.— So also, where the 
 return recited that the process was " executed on S. S., ex- 
 ecutor, Mrs. J. L. S., executrix, by offering to each a copy, 
 and on Miss F. R. S. (and other minors) by handing each a 
 copy," and it was necessary that the guardian of the minors 
 should be served, the above return was held to show suffi- 
 cient service, it appearing from the bill that Mrs. J. L. S. 
 was such guardian.^ 
 
 § 1385. Conflicting Tiews as to Impeaching Return. — 
 It seems strange that, in the principal suit, the return of the 
 officer cannot be questioned or doubted, if he refuses to 
 amend, yet after judgment, the entire judicial proceeding, 
 which is based upon such return, may in defense to an ac- 
 tion thereon, or by motion to set aside, be utterly over- 
 thrown and invalidated, by showing the falsity of its recitals. 
 This is the rule, however, which seems to be established by 
 judicial decisions.'* 
 
 1 Railroad Company v. Brown, 17 Wall., 445. 
 
 2 Bridges v. Ai-nold, 37 Iowa, 231. 
 
 3 Kip V. FuUerton, 4 IVIinn., 473. 
 
 < Smith V. Pattison, 45 Miss., 619. 
 * Supra, § 13T8-9, and cases cited. 
 44
 
 690 PEACTICE AND PLEADING. 
 
 IX. Pleading. 
 
 § 1386. Division of Subject. 
 
 1387. Necessary to Aver Notice. 
 
 1388. Action on Guaranty. 
 
 1389. Wlien Notice Unnecessary. 
 
 1390. When Facts Ai-e Witliin Defendant's Knowledge. 
 
 1391. Knowledge Lies Between the Parties. 
 1393. When Want of Notice to be Averred. 
 
 1393. Manner of Alleging Notice. 
 
 1394. Must Aver Notice to Proper Party. 
 
 1395. Should Show Strict Compliance When Constructive Service. 
 
 1396. In Due Time and to Proper Person. 
 
 1397. Waiver or Excuse. 
 
 1398. Facts Pleaded According to Legal Effect. 
 
 1399. Manner of Averring Want of Notice. 
 
 1400. ' Admission of Notice by Answer. 
 
 1401. Consequence of Defective Pleading. 
 
 1402. Practice Under the Code. 
 
 § 1386. Division of the Subject. — The first question for 
 consideration under this branch of our subject is — when is 
 it necessary to aver in the pleadings that notice has been 
 given ? Second, when should the pleader aver want of notice ? 
 Third, how should either notice, or its absence when neces. 
 sary, be averred; and Fourth, how may advantage be taken 
 of either a defective allegation in this respect, or an entire 
 omission of the averment, when it is material to the issue? 
 
 §1387. Necessary to Aver Notice. — The affirmative 
 allegation devolves upon the plaintiff, when the event upon 
 which the defendant's duty arises and the plaintiff's right 
 accrues lies peculiarly within the knowledge of the latter, 
 and the action does not lie without notice given.^ As where 
 the action was on a promise to pay such a rate for certain 
 wares as any other person would pay, it was held that de- 
 fendant was entitled to notice, before suit, of the rate 
 that another gave, and the declaration should have con- 
 tained an allegation of such notice.' So where suit was 
 
 1 6 Com.. Dig. Pleader (C, 73). 
 
 - Henuing's Case, 3 Croke, 433 ; Harris v. Ferrand, Hardres, 36.
 
 PLEADING. 691 
 
 brought on a contract to deliver so much corn, if the plaintiff 
 approve of it at the fair, it was held that defendant was 
 entitled to notice of approval, for, until the corn Tvas ap- 
 })roved, the contract was in abe3'ance, and it was uncertain 
 whether defendant would be required to execute it on his 
 part; hence notice of such approval should be averred.* So 
 also, in case of a subscription of stock, to be paid when 
 $5,000 had been raised for a specified purpose, it was held 
 that notice was necessary to fix the liability of the sub- 
 scriber, as the circumstances on which the performance of 
 the contract depended were more peculiarly witliin the 
 knowledge of the promisee than the promisor.- It was also 
 decided, where defendant had agreed to reimburse plaintiff 
 for the expense of a trip to England, in case plaintiff's sales 
 of certain machines did not amount to sufficient to defray 
 the same, that in an action to recover the amount of such 
 expense, notice to the plaintiff of the deficiency in the sum 
 realized from the sales of machines should have been 
 averred.* So in an action against the drawer or indorser of 
 a negotiable instrument, it is necessary to allege demand 
 and notice, or such facts as will excuse notice.'' 
 
 §1JJ88. Action on Guaranty.— In an action brought on 
 a guaranty, it is not onl}^ incumbent upon the plamtiff to 
 aver notice of the fact which fixes the liabilit}^ of the guar- 
 antor, but it is necessary to allege notice of the acceptance 
 of the guaranty, by which he became contingently liable 
 for the default of the other party .^ The necessity of this 
 averment is placed upon somewhat different grounds from 
 
 1 Brable v. Holly well, 1 Croke, 250; Palgrave v. "Wmdliam, 1 Str., 212. 
 
 2 Chase v. Sycamore & C, R. R. Co., 38 III., 215. 
 
 'Watson V. Walker, 23 N. H., 471. For cases where averment of 
 notice is held unnecessary, see Rex v. Holland, 5 T. R.,607, Lent v. 
 Padleford, 10 Mass., 230; Clough v. Hoffman, 5 Wend., 499; East v. 
 Thoroughgood, 1 Croke, 834. 
 
 ^Shultz V. Depuy, 3 Abb. Pr., 252; Harker v. Anderson, 21 Wend., 
 372; 1 Chit. PI., 329, and cases cited. 
 
 SMcCoUum V. Cushing, 22 Ark., 540; Kincheloe v. Holmes, 7 B. 
 Mon., 5.
 
 692 PRACTICE AND PLEADING. 
 
 that required in the cases hereinbefore cited ; as in most of 
 those cases, the notice advised the obligor of a liabihty in- 
 curred under a contract of which he already had notice, 
 while the notice to the guarantor is essential to complete the 
 contract of guaranty itself. The averment of a notice of 
 acceptance, however, is not all that is required in actions of 
 this kind. "When the guarantor is entitled to notice of the 
 principal debtor's failure to pay, and that proper efforts 
 have been made to collect the debt from him, the declara- 
 tion should contain proper averments to this effect,^ 
 
 § 1389. When Notice Unnecessary. — But an uncondi- 
 tional covenant to pay immediately on a failure of a debtor 
 to discharge the obligation at the time stipulated is not 
 such a guaranty as requires notice.- A distinction has also 
 been drawn between contracts to guarantee the payment of 
 money, or the performance of some duty where the prin- 
 cipal obligation remained in abeyance until the acceptance 
 of the guaranty, and an unconditional guaranty indorsed 
 upon a written contract which was m itself complete at the 
 time, conditioned that the guarantor should be bound to 
 pay a specific sum mentioned, upon the failure of the prin- 
 cipal obligor in the contract to faithfully perform its con- 
 ditions. In suits on collateral obligations of the latter 
 description, it has been held that as the acceptance of the 
 principal contract necessarily involved the acceptance of 
 the guaranty, notice of such acceptance was not requisite.^ 
 
 § 1390. When Facts Are Within Defendant's Knowl- 
 edge. — Notwithstanding the conditional nature of the obli- 
 gation under which defendant's indebtedness accrues, if the 
 facts and circumstances upon which his liability to plaintiff 
 depends are as much within his knowledge as that of the 
 
 1 Sylvester v. Downer, 18 Vt., 32; Bebee v. Moore, 3 McLean, 387; 
 ante, § 390 et seq. 
 
 2 WilUams v. Springs, 7 Iredell, 384 ; Kemble v. Wallis, 10 Wend., 374 ; 
 Williams v. Granger, 4 Day, 444; ante, ch.VII, part 11. 
 
 3 Davis Sewing Machine Co. v. Jones, 61 Mo., 409; ante, ch.VII, 
 part n.
 
 PLEADING. 693 
 
 plaintiff, or he has the means of informing himself in re- 
 gard to such facts and circumstances from a definite known 
 source, other than by information from the plamtiff, he is 
 not entitled to claim notice from the plaintiff,* and conse- 
 quently, in such case, an averment of notice would be un- 
 necessary. As when the obligor assumes to pay when A. 
 marries, returns into the kingdom, or performs a certain 
 journey. Here the liability depends upon the act of a third 
 party, which lies in the defendant's cognizance as well as 
 the plaintiff's, and he is bound to take notice at his peril.^ 
 So if he assumes to pay so much as A. shall name ; to pay 
 if A. does not pay ; or to pay so much for every acre above 
 twenty, where A. measures them, it has been held that no- 
 tice w^ould not be required before suit.' So, also, in an action 
 for services rendered, it is never deemed necessary to give 
 notice to defendant of the rendition of such services.* 
 
 §1391. Knowledge Lies Between the Parties. — When 
 the cause of action arises upon the performance of some act 
 alleged to have taken place between the parties themselves, 
 there is the strongest reason for dispensing with notice from 
 the obligee to the obligor. As where the action was debt 
 for freight, on a charter-party, and the goods were obliged 
 to have been delivered to the defendant himself, it was held 
 that plaintiff need not aver notice of the delivery.* 
 
 § 1392. When Want of Notice to be Averred.— It will 
 probably be sufficient to state that the want of notice 
 should be pleaded in every proper case in which it is omit- 
 ted and the declaration does not show upon its face that 
 notice was necessary. To undertake to illustrate by exam- 
 ples what are proffer cases, would merely be to go over the 
 ground already traversed in endeavoring to show when 
 
 iLamphere v. Co wen, 43 Vt., 175; Dix v. Flanders, 1 N. H., 246; 
 Hobart v. Hilliard, 11 Pick., 143, 
 ^Com. Dig. Pleader, C, 75; Normanvill v. Pope, 2 Cro., 137. 
 3Com. Dig. PI., C, 75; Burnel v. Wood, 3 Roll., 33. 
 < Wilson V. School Dist. No. 4, 32 N. H., 118. 
 5 Dodd V. Atkinson, cited Com. Dig. PI. (C, 75).
 
 694 PEACTICE A:!fD PLEADING. 
 
 notice should be averred, and when its averment was unnec- 
 essary, 
 
 § 1393. Manner of Alleging Notice. — In discussing the 
 manner of pleading notice or want of notice, it will be nec- 
 essary to show what constitutes a good and sufficient notice, 
 for it is only by alleging with reasonable particularity the 
 facts constituting such notice as the case requires, that the 
 matter may be brought properly before the court or jury. 
 EsiDCcially under the code s\iow\.(X facts be pleaded as contm- 
 distinguished from conclusions of law. The pleading would 
 therefore be insufficient on its face if it merely alleged that 
 " lawful notice " or "■ notice as required by law " was gij^en, 
 without stating to whom the same was given, or without 
 alleoino: sufficient to show that the notice was reasonable in 
 point of time. As where a bill of sale in the natm'e of a 
 mortgage was given with a stipulation for the mortgagor to 
 retain possession, and that it was to be void if the sum 
 secured was paid on a specified day, unless the mortgagee 
 gave notice of his desire for earlier payment, when the 
 same should be paid at the time for which the notice was 
 given, or possession was to be surrendered. I^otice of de- 
 mand for earlier payment was alleged as having been given 
 on the same day the possession was demanded, Avithout 
 stating the hour, and the averment was held insufficient, for 
 the reason that it could not be deduced therefrom that the 
 notice was reasonable.^ So if A. promises to pa}^ to B., before 
 the end of a fair, as much as B. disburses at such fair, in an 
 action by B. on such promise he ought to allege notice 
 given of such disbursements, before the end of the fair, 
 otherwise he will be too late.- 
 
 § 1394. Must Aver Notice to Proper Party. — It should 
 also appear, either by direct averment or necessary intend- 
 ment, that the alleged notice was given to the proper party. 
 As, for example, where the action is on a breach of condi- 
 tion to repair, upon notice, the allegation should be that 
 
 1 Rogers v. Mutton, 7 Hm-1. &, Nor., 733. 
 
 2 Com. Dig. PI., C, 74.
 
 PLEADING. 695 
 
 such notice was given to bim who had the entire interest in 
 the premises, and not to an under lessee.^ 
 
 § 1395. Should Show Strict Compliance When Con- 
 structive Notice. — When any other form of service is sub- 
 stituted by statute for that of personal delivery to the party 
 to be affected, the pleading should show a strict compliance 
 with such statutory form. As where service by mail was 
 authorized by statute, it was held that it must appear by 
 the pleading that the notice was deposited in the postoffice, 
 directed to the party, his agent or attorney, at his place of 
 residence, with full postage paid thereon. The allegation 
 that it was " mailed " would not be sufficient.- 
 
 § 1396. In Due Time and to Proper Person. — It has 
 been held, however, under the common law practice, in a 
 suit on a bill against the indorser, that a general allegation 
 of notice of demand and refusal would be sufficient.* But 
 it is laid down as a rule by the highest authority upon com- 
 mon law pleading, that "it ought to appear that notice was 
 given in due time and to a proper person." ^ It is also de- 
 clared that where no notice whatever has been given, the 
 absconding of the party, or other cncumstances, should be 
 stated as an excuse for the want of notice. And even 
 where there has been a justifiable delay in giving the notice 
 at the regular time, though sometimes the facts excusing 
 the delay are allowed to be given in evidence under the 
 averment that notice was given, it is regarded as the better 
 practice to state the facts of the excuse.^ This rule is more 
 explicitly laid down in cases decided under the codes of 
 practice of several of the states, and is generally followed 
 wherever the code has been adopted. 
 
 § 1397. Waiver or Excuse. — In an action against the 
 indorser of a note, under an allegation of demand and no- 
 
 iStewton V. Cushe, Yel., 37. 
 2 Clark V. Adams, b3 Mich., 159. 
 3 Boot V. Franklin, 3 Johns., 207. 
 *1 Chit. PI., 328. 
 5 1 Chit. PI., 328-9.
 
 096 PRACTICE AND PLEADING. 
 
 tice, it was held that the plaintiff could not introduce evi- 
 dence tending to prove the absence of the indorser, as an 
 excuse for not giving such notice. The grounds of excuse 
 upon which plaintiff reUed were regarded as facts consti- 
 tutive of his cause of action, and, therefore, such as it was 
 necessary to allege in order to lay a foundation for the evi- 
 dence.^ So, in England, it is a rule of pleading that a waiver 
 of notice made before dishonor, or other facts excusing no- 
 tice of the dishonor of commercial paper, cannot be proved 
 under an allegation of due notice.^ Some of the earlier 
 cases in this country, especially in Massachusetts and Con- 
 necticut, have decided the question the other "way, and ad- 
 mitted evidence of waiver of notice, or in excuse for the 
 want of notice, under an allegation that notice w^as given.* 
 But in the former state, where this manner of jjleading w^as 
 recognized in cases involving notice of the dishonor of bills 
 and notes, in one case it w^as regarded as exceptional, and 
 not apphcable to other executory agreements.* The con- 
 flict upon this question is not confined to the comets, but 
 there seems to be a difference of opinion between the text- 
 writers as to wiiich is the rule in the United States. Mr. 
 Daniel, m his recent work on ISTegotiable Instruments, 
 regards the established doctrine as being in harmon}'- with 
 the Massachusetts cases cited,^ while Mr. Edwards, who may 
 
 1 Pier V. Heinrichoffen, 52 Mo., 333. See, also, Garvey v. Fowler, 
 4 Sandl, 665; Shultz v. Depuy, 3 Abb. Pr., 252; Lumbert v. Palmer, 
 29 la., 104; Cole v. Wintercost, 12 Tex., 118; Curtis v. State Bank, 
 6 Blackf., 312. 
 
 2 Burgh V. Legge, 5 M. & W., 418; Murray v. King, 5 B. & Aid., 165; 
 Allen V. Edmundson, 17 L. J., N. S., Exch. of PI., 291; S. C, 2 Exch., 
 719. 
 
 3 City Bank v. Cutter, 3 Pick., 414; Taunton Bank v. Richardson, 5 id., 
 436; Jones v. Fales, 4 Mass., 245; North Bank v. Abbot, 13 Pick., 465; 
 Harrison v. Bailey, 99 Mass., 620; Kent v. Warner, 12 Allen, 561 ; Norton 
 V. Lewis, 2 Conn., 478; Camp v. Bates, 11 Conn., 488; Windham Bank v. 
 Norton, 22 Conn., 213, See, also, Williams v. Mathews, 3 Cow,, 252; 
 Ogden V. Cowley, 2 Johns., 274. 
 
 4 Colt V. Miller, 10 Cush., 51. 
 
 5 2 Daniel, Negot. Inst., § 1048.
 
 PLEADING. 697 
 
 be looked upon as a thoroughly competent exponent of the 
 practice under the New York code, declares that, in plead- 
 ing notice, " the complaint must state the facts constituting 
 the cause of action on which plaintiff seeks to recover," 
 A waiver of notice cannot be proved under an allegation 
 of due notice.^ This seems to be in substantial conformity 
 to the spirit of any system of pleading, which requires a 
 statement oifacU, and not conclusions of laio. 
 
 § 1398. Facts Pleaded According to Legal Effect. — 
 Tliough it is necessary to plead the facts upon Avhich a party 
 ralies, it is neither necessary nor permissible, under any good 
 system of pleading, to state the evidence by which those 
 facts are to be established.- Equal care should be observed 
 to avoid, on the one hand, the averment of conclusions of 
 law, while endeavoring to plead facts according to their 
 legal effect ; and, on the other, the statement of evidence, 
 instead of the facts to be proved. In pleading notice given 
 to an agent, the averment should be of notice to the princi- 
 pal. It may reasonably be doubted whether an averment 
 of notice to an agent would be sufficient to admit evidence 
 upon that point, against the objection of the other party, 
 unless there were other allegations which would show, not 
 only that it was given to an agent, but to the agent to 
 whom it might be given so as to bind the principal.' 
 Whether the notice be served upon the principal or the 
 agent, the legal effect is notice to the principal. This is the 
 fact to be proved. The manner in which it was served is 
 the evidence, whether that be by giving it to an agent 
 authorized to receive it or to the principal in person. 
 
 § 1399. Manner of Averring Want of Notice. — An 
 averment of want of notice should be no less clear and 
 unambiguous than is required when notice is alleged. It 
 must be an averment of an issuable fact not involved in an 
 issue of law. As where the answer was a denial of knowl- 
 
 • Edw. on Bills, 636. 
 
 2 1 Chit. PI., 566. 
 
 s See ante, ch. IX, part II.
 
 698 PEAOTICE AKD PLEADING. 
 
 edge, information or belief as to whether notice had been 
 given as required hy law, it was held that this merely raised 
 an issue as to the lawfulness of the notice, which was not a 
 l^roper question to be submitted by the pleadings. Thefact 
 as to whether notice had been given was lost sight of, and 
 consequently the pleading was bad.^ 
 
 § 1400. Admission of Notice by Answer. — But where 
 the answer admits notice, reasonable notice will be intended, 
 and the question ceases to be one for the jury, whether the 
 notice was reasonable or mireasonable.^ A denial of any 
 notice whatever would be sufficiently comprehensive to in- 
 clude any issue upon that question presented by the plaint- 
 iff, and would therefore be regarded as sufficient, without 
 entering into particulars. xVnd when the action was brought 
 on a joint contract, an allegation by defendants that notice 
 w^as not given them would be sufficient without alleging 
 that notice was not given either of them.^ Although it 
 would doubtless be held otherwise when the contract was 
 both joint and several, or where the obligors were partners, 
 and the transaction was in connection with the business of 
 the partnership. 
 
 §1401. Consequences of Defective Pleading. — As to 
 the consequences of defective pleading in cases where aver- 
 ment of notice is necessary, there seems to be no general 
 rule which is universally recognized. Lord Mansfield lays 
 down the distinction between the consequences of a defect- 
 ive averment and no averment of notice thus : The former, 
 he declares, may be cured by verdict, because, to entitle 
 plaintiff to recover, '* all circumstances necessary, in form 
 or substance, to complete the title so imperfectly stated 
 must be proved at the trial — it is a fair presumption, after 
 verdict, that they w^ere proved ; '■ while as to the latter he 
 says : " "When the plaintiff totally omits to state his title 
 or cause of action, it need not be proved at the trial, and 
 
 » Seeding v. Bartlett, 35 Mo., 90. 
 2Lai'abee v. Searsport, 42 Me., 203. 
 3 Watson V. Walker, 23 N. H., 471.
 
 PLEADING. 699 
 
 therefore there is no room for presumption."^ The case 
 cited was an action against an indorser, and the plaintiff 
 failed to allege demand and notice, wherefore it was argued 
 that no proof at the trial could make good a declaration 
 which contained no ground of action on its face, and it was 
 accordingly held that judgment for plaintiff on «uch a dec- 
 laration should have been arrested. The doctrine announced 
 by the learned jurist would seem to apply with equal force 
 to actions on contracts of any kind where notice was a con- 
 dition precedent, and consequently necessary to the state- 
 ment of a cause of action; but Mr. Chitty, in his incom- 
 parable work on Pleading, states the English rule under the 
 common law practice in these words: '' The omission of an 
 averment of notice will be fatal on demurrer or judgment 
 by default, but may be aided by a verdict, unless in an ac- 
 tion against the drawer of a hill, when the omission of the 
 averment of notice of non-payment of the acceptor is fatal 
 even after verdict." ^ So in this country substantially the 
 same reasoning employed by Lord Mansfield in support of 
 the doctrine that defective or inaccurate averments would 
 be cured by a verdict, is put forth to cure an entire omission 
 of any allegation whatever.^ There it Avas decided that, 
 even where an averment of notice of a condition precedent 
 was necessar}^, and was omitted, the omission was cured by 
 verdict, because it ivas a question involved in the issue, and 
 must he presumed to have l)een -proved, though not alleged} 
 
 § 1402. Practice Under the Code. — In those states 
 where the code has been adopted, the practice differs mate- 
 rially from that at common law, and in nothing more than 
 in the manner of stating a cause of action, in the initial 
 pleading. The codes not only differ from the common law 
 practice, but in many particulars differ from each other; 
 but very few, if any of them, leave room for the indulgence 
 
 1 Rushton V. Aspinwall, 1 Douglas, 653. 
 
 22 Chit. Plead., 329; id., 681. 
 
 »Colt V. Root, 17 Mass., 229. 
 
 < Crocker v. Gilbert, 9 Cush., 131.
 
 700 PKACTICE AlO) PLEADING. 
 
 of presumptions by the court as to the proof of facts not 
 alleged in the pleadings. In some of them, at least, the 
 omission of material allegations may be supplied by amend- 
 ment, to conform the pleadings to the proof. If notice is a 
 fact necessary to constitute a cause of action, its omission 
 will affect the case at all its stages, precisel}" as it would be 
 affected by the omission of any other material averment, 
 want of which would render the pleading demurrable on 
 the ground that it did not state facts sufficient to constitute 
 a cause of action, or a defense to an action.
 
 CHAPTER XIII. 
 
 FACTS OF WHICH COUETS TAKE JUDICIAL NOTICE. 
 
 § 1403. A General View of the Subject. 
 
 1404. Public Statutes, the Common Law and General Customs. 
 
 1405. Foreign Laws and Customs. 
 
 1406. Public Treaties. 
 
 1407. Public Institutions. 
 
 1408. Local Customs, and Special and Private Statutes. 
 
 1409. Municipal Ordinances. 
 
 1410. Geograpliical Facts. 
 
 1411. Historical Facts, Incorporation of Towns, etc. 
 
 1412. Election and Appointment of Officers. 
 
 1413. Official Signatures and Seals. 
 
 1414. Terms of Court and Judicial Proceedings. 
 
 1415. The General Course of Nature. 
 
 1416. Scientific and Other Facts of Uniforrn Occurrence. 
 
 1417. Facts Occurring in the General Course of Human Life — The 
 
 Ai'ts, etc. 
 
 §1403. A General Tiew of the Subject. — It is not 
 
 because the matters treated of in this chapter are strictly 
 germain to that of Notice, in general, that it is added in the 
 second edition. All other considerations have been subordi- 
 nated to that of utility ; and the numerous complaints made 
 to the author because of the absence of this topic from the 
 first edition have convinced him that many practitioners 
 look here for some light upon this branch of the law. When 
 the court is asked to take judicial notice of a fact, it is not 
 always a simple problem that demands solution. It is not 
 in every instance easy to determine whether the matter is 
 one that comes within the range of judicial notice. The 
 subjects upon which the court is asked to exercise this pe- 
 culiar power are various and diverse in character, and 
 demand repeated modifications of the rules by which the 
 discretion of the court is governed. There seems, indeed,
 
 702 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 to be no general rule which governs all phases of the sub- 
 ject. The classes of facts of which notice will be taken 
 are judicial, legislative, political, historical, geographical, 
 commercial, scientific and artistic, in addition to a wide 
 range of matters, arising in the ordinary course of nature, 
 or the general current of human affairs, which rest entirely 
 upon acknowledged notoriety for their claims to judicial 
 recognition. The difficulties in the way of determining 
 whether a particular fact belongs to this class are enhanced 
 b}^ the circumstance that though its notoriety has a control- 
 ling influence, this is not of itself sufficient. l!^or is it necesr 
 sary that the fact shall be actually known to the court. 
 The judge sitting at nisi prius may not be sufficiently 
 informed as to a fact in natural science, or the history of 
 the country, of which he is bound to take notice. He may 
 not even be able to recall, without making special inquiry 
 into the matter, the day of the week upon which a date 
 happened to occur, and yet this may be shown by any avail- 
 able and authentic means, to his satisfaction, and the knowl- 
 edge thus acquired, without either allegation or proof by 
 ordinary methods, may controt his decision. Facts of which 
 the court takes notice may be embraced in instructions to 
 the jury, without invading the province of that body, as 
 triers of questions of fact. That the doctrine is an essential 
 one is beyond question. But the difficulties that arise from 
 the uncertainty of the rules b}^ which it is governed, render 
 it impracticable to point out their application otherwise 
 than by an appeal to examples furnished by the courts. 
 
 §1404. Public Statutes, the Common Law and General 
 Customs.^ — The rule is quite uniform that courts will take 
 judicial notice of legislative enactments which are recog- 
 nized as public acts within the state or territorj^ in which 
 the court is held.^ Thus, where a public act expressly recog- 
 
 iLevy V. The State, 6 Ind., 281; Parent v. Walmsley, 20 Ind., 82; 
 Covington, etc., Co. v. Shepherd, 20 How., 227; Prell v. McDonald, 7 
 Kan.. 426; Wright v. Hawkins, 28 Tex., 452; The State v. Jarrett, 17
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. T03 
 
 nizes and amends a private act, courts will take notice of 
 the existence and duties of an officer provided for in the 
 latter.' In applying this principle the courts make dis- 
 tinctions between statutes which are denominated " public," 
 whether they are " general " in their application to the en- 
 tire state or territory, and to all persons therein or not, and 
 those which are private. They accordingly hold statutes 
 judicially noticeable which are, in the common understand- 
 ing of the terms, " local," or " special," when declared to 
 be "public." Hence, a railroad charter, published with 
 other legislative enactments, was held entitled to notice 
 in this manner.- So laws for the government of integral 
 portions of the state, known as municipal charters and the 
 amendments thereto, have been held to be of this class, 
 though they only applied to certain designated localities.' 
 The courts wiU take notice of the date when a statute went 
 into effect, as well as its other provisions.* ]^or do statutes 
 depend for recognition upon the fact that they were en- 
 acted by the governing legislative body of the sovereignty 
 by which the court is established. Thus the courts of the 
 different states are bound to take judicial notice of the 
 
 Md., 309; People v. Mahaney, 13 Mich., 481; Payne v. Ti-eadwell, IG 
 Ca]., 220; Division of Howard County, 15 Kan., 194; Belmont v. Mor- 
 i-m, 69 Me., 314; Reed v. Wilson, 41 N. J. L., 29; East Tenn., etc., Co. 
 V. Gaskell, 2 Lea (Tenn.), 742; Lavalle v. People, 6 111. App., 157; 
 United States v. Jackson, 104 U. S., 41; Elwood v. Flannigan, 104 U. 
 S., 562; Hall v. Brown, 58 N. H., 93; Madison Co. Com'rs v. Biuford, 93 
 Ind., 383. 
 
 1 Lavalle v. People, 6 111. App., 157. 
 
 2 Hall V. Brown, 58 N. H., 93. 
 
 3 Case u. Mobile, 30 Ala., 538; Belmont v. Morrill, 69 Me., 314; Buell 
 V. Warner, 33 Vt., 570; Gordon v. Montgomery, 19 Ind., 110; Mac. v. 
 Titcombe, 19 Ind., 135; Terry v. Milwaukee, 15 Wis., 490; Alexander v. 
 ililwaukee, 16 Wis., 247; Janesville v. Slilwaukee, etc., R. Co., 7 Wis., 
 484; Davis v. Bank of Fulton, 31 Ga., 69; Bretz v. Mayor, etc., of N. 
 Y., 6 Rob. (N. Y.), 325; Bevens v. Baxter, 23 Ark., 387; Hawthorne r. 
 Hoboken, 32 N. J. L., 172; Fauntleroy v. Hannibal, 1 Dill., 118. 
 
 •* Attorney -General ^•. Foote, 11 Wis., 14; Heaston v. Cincinnati, etc., 
 tl. Co., 16 Ind., 275; The State v. Bailey, 16 Ind., 46.
 
 TOi FACTS OF WHICH COUKTS TAKE JUDICIAL NOTICE. 
 
 laws of congress.^ This has been so decided in reference 
 to acts fixing the value of coin ; ^ authorizing the survey 
 and subdivision of the public lands;' the laws providing 
 for assessment and collection of the internal revenue for 
 federal purposes;* the act regulating proceedings in bank- 
 ruptcy;^ the laws enacted for the government of the Dis- 
 trict of Columbia;^ as well as all other acts of a public 
 character, or which are declared so to be. For like reasons 
 of public policy, the federal courts recognize, without alle- 
 gation or proof, the public acts of the legislatures of the 
 different states.^ So judicial notice is taken of the common 
 law and general customs of the community in which the 
 court is held. Without special enactment, the law merchant 
 governing the transfer of commercial paper by indorsement 
 will be noticed by the courts, where such law has not been 
 abrogated by statute.^ Courts have also taken judicial no- 
 tice of military orders of a general character, witliin the dis- 
 trict where the courts were held, when such orders affected 
 judicial proceedings, and were issued by officers of recog- 
 nized authority.^ But when the subject-matter to which 
 
 1 Merrill t7. Dawson, 1 Hempst., 563; Semple v. Hagar, 27 Cal., 163; 
 Dickenson v. Breeden, 80 111., 279; Wright v. Hawkins, 28 Tex., 452; 
 Papin V. Ryan, 32 Mo., 21. 
 
 2 Daily v. The State, 10 Ind., 536. 
 
 sPriezer v. Exchange, etc., Ins. Co., 6 Wis., 89; Atwater v. Schenck, 
 9 Wis., 160; Semple v. Hagar, 27 Cal., 163; Papin -y. Ryan, 32 Mo., 21; 
 Dickenson v. Breeden, 30 HI., 279. 
 
 4Kessel v. Albetis, 56 Barb., 362. 
 
 5 Muns V. Swartz, 37 Tex., 13. 
 
 6 Bayly v. Chubb, 16 Gratt., 284. 
 
 ^Elwood V. Flannigan, 104 U. S., 562; Griffing v. Gibb, 2 Black, 519; 
 Smith V. Tallapoosa County, 2 Woods, 574 ; Fauntleroy v. Hannibal, 1 
 DiU., 118; Jasper v. Porter, 2 McLean, 579; Jones v. Hays, 4 McLean, 
 521; Owings v. HuU, 9 Pet., 607. 
 
 8 Reed v. Wilson, 41 N. J. L., 29; Brandao v. Barnett, 12 C. & F., 787; 
 3 C. B., 519. See, also, Sims v. Marry att, 17 Q. B., 281 ; In re Nesbitt, 
 2 D. & L., 529. 
 
 9 New Orleans, etc., Canal Co. v. Templeton, 20 La. An., 141; Taylor 
 V. Graham, 18 La. An., 656; Lanfier v. Mestier, 18 La. An., 497; Gates 
 V. Johnson County, 36 Tex., 141.
 
 FACTS OF WHICH COrETS TAKE JUDICIAL NOTICE. 705 
 
 such orders are directed lies beyond the scope of the offi- 
 cer's lawful authority, the courts would not be under any 
 obligation to notice them, further than they might claim 
 attention as facts of general notoriety. It is only of gen- 
 eral orders of a restricted class, that courts are required to 
 take notice, even when issued in the line of duty of the com- 
 manding officer.^ They are only so recognized when they 
 are of a character, or issued under such circumstances, as to 
 become laws governing the action of the court. In respect 
 to public statutes, it may be observed that the usual form 
 in ^vhich they are brought to the notice of the court is as 
 published by authority. But there is some conflict of author- 
 ity upon the question whether the journals of legislative 
 assemblies will be judicially noticed. In Alabama they are 
 placed upon precisely the same footing as the printed stat- 
 utes, and if it appears from the journal of either house 
 that a certain law was not enacted in the manner pointed 
 out by the constitution, the act will be held void.^ The 
 same doctrine is laid down in Michigan ; ^ while in Illinois/ 
 Indiana'^ and Kentucky,'' it is held otherwise. Th^ English 
 courts also refuse to take notice of the journals of the house 
 of commons,' while they do take notice of the privileges of 
 the house,^ and also of its standing orders." They also take 
 notice of royal proclamations,^" and of the maritime law of 
 
 1 Burk V. Miltenberger, 19 Wall., 519. 
 
 2 Moody V. The State, 48 Ala., 115. In Iowa the courts take judicial 
 notice of the correct reading of a statute as it appears in the office of 
 the secretary of state. Clare v. The State, 5 Iowa, 286. 
 
 3 The People v. Mahaney, 13 Jllch., 481. 
 
 <Grobv. Cushman, 45 111., 119. 
 
 5 Coleman v. Dobbins, 8 Ind., 156. 
 
 <» Auditor v. Hay croft, 14 Bush, 284. 
 
 7 King V. Arundel, Hob., 109. 
 
 sstockdale V. Housard, 9 Ad. & L., 107; 4 Jur., 70; 3 P. & D., 330. 
 See Burdett v. Abot, 5 Dow., 165; 14 East, 1; Burdett v. Colman, 14 
 East, 163. 
 
 9 Ex parte Stockbridge Railway Bill, L. R., 2 Eq., 364. 
 
 10 Van Omeron v. Dowick, 2 Camp., 44. 
 
 45
 
 TOG FACTS OF Allien COUKTS TAKE JUDICIAL NOTICE. 
 
 nations.^ The latter would be judicially noticeable in the 
 courts of this country. 
 
 § 1405. Foreign Laws and Customs. — The laws and 
 customs, however, which are generally judicially noticed, 
 either in this country or in England, are those which are 
 enacted or in force in the country under the authority of 
 which the court is held. In states where the common law 
 has been adopted, it will be presumed to be the law of a 
 foreign state also, unless there be allegation and proof to 
 the contrary.- And not only will the courts of one state, 
 where the common law prevails, refuse to take notice of a 
 foreign statute by which it is abrogated, but they will, in 
 general, refuse to take judicial notice of a different com- 
 mon law rule from their own.^ Xor that the statutes of 
 the other state contain different provisions on the same sub- 
 ject.* In this respect, however, there is not perfect har- 
 mon}'' in the rahngs. In Louisiana it has been decided that 
 the court would take judicial notice that certain laws pecul- 
 iar to that state were not recognized in other jurisdictions."* 
 
 J Chandler v. Grieves, 2 H. Bl., 606. 
 
 -'Whitesides v. Poole, 9 Rich. L., 68; Trigg v. Conway, 1 Houst., 538: 
 Kidd V. Manley, 28 Miss., 136; Woodrow v. O'Conner, 28 Vt., 776: Bean 
 V. Briggs, 4 Iowa, 464; Charlotte v. Chouteau, 25 Mo., 465; Cavender v. 
 Guild, 4 Cal., 250; Anderson v. Anderson, 23 Tex., 639: Faulk v. Faulk, 
 23 Tex., 653; Carey v. Cincinnati, etc., R. Co., 5 Iowa, 357; Johnson v. 
 Chambers, 12 Ind., 102; Rape v. Heaton, 9 Wis., 328; Cutler v. Wright, 
 22 N. Y., 472; Palfrey v. Portland, etc., R. Co., 4 AUen, 55; Hoyt v. 
 McNeil, 13 Minn., 390; Simms v. Southern Express Co., 38 Ga., 129; 
 Condit V. Blackwell, 19 N. J. Eq., 193; Mobile, etc., R. Co. v. Whitney, 
 39 Ala., 468; Eastman v. Crosby, 8 Allen, 206; Syme v. Stewart, 17 La. 
 An., 73; Bliss on Code PL, § 287, citing Thatcher v. Morris, 11 N. Y., 
 437; Beach v. The Bay State, etc., Co., 30 Barb., 433: Nelson v. Brid- 
 port, 8 Beav., 527; 10 Jur., 871; Bristow v. Secqueville, 5 Exch., 275; 
 19 L. J. Exch., 289; Robards v. Marley. 80 Ind., 185. 
 
 "Houghtahng v. Ball, 19 Mo., 84; Wilson v. Cockrill, 8 Mo., 7; Bil- 
 lingsley v. Dean, 11 Ind., 331. 
 
 ^Phoenix Ins. Co. v. Church, 59 How, Pr., 293; Neese v. Farmers' Ins. 
 Co., 55 Iowa, 604; Chapman v. Colby, 47 Mich., 46; Bradley v. Hardin, 
 73 Ala., 70; Bush v. Gai-ner, 73 Ala., 162. 
 
 sMcIlvaine v. Legare, 34 La. An., 923.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 707 
 
 There care other exceptions to the doctrine as broadl}^ stated 
 in reference to foreign laws. The manner of proving the 
 statutes of sister states, and the territories of the United 
 States, have been much simphfied bv legislation, so that the 
 difference between them and domestic statutes is hardly 
 realized, except in the matter of pleading. And for certain 
 purposes it seems that some of the courts, at least, will take 
 judicial notice of the statute of a neighboring state, so that 
 it need not be either pleaded or proved. Thus, under the 
 provisions of the federal statute requiring full faith and 
 credit to be given to judicial proceedings in the courts of 
 other states, and providing the means of authenticating 
 court records, it was held in Pennsylvania that, in order to 
 carry these provisions into effect, the courts of that state 
 would take notice of the local laws of the state from which 
 the record in question was certified.^ So, where a judg- 
 ment of a foreign court was offered in evidence in "Wiscon- 
 sin, judicial notice was taken of the law of the state where 
 it Avas rendered, by which circuit courts were made courts 
 of general jurisdiction, this being essential to the validity 
 of the authentication of such judgment.- So also has 
 judicial notice been taken of the constitution of a sister 
 state,' particularly where the purpose of such recognition 
 was to show that the record was authenticated by the proper 
 clerk, and that it was the judgment of a court of record.'' 
 And state courts have also taken notice of the laws of other 
 states, where the validity of acts done under such laws 
 was recognized.^ So the courts of Kentucky have taken 
 judicial notice of the laws of Virginia, which were common 
 to the two states prior to their separation.^ So also do the 
 
 1 State of Ohio v. Hinchman, 27 Pa. St., 479. 
 
 - Jarvis v. Robinson, 21 Wis. , 523. 
 
 s Butcher v. Brownsville, 2 Kan. , 70. 
 
 * Morse v. Hewett, 28 Mich., 481 ; Dodge v. Coffin, 15 Elan., 277. 
 
 5 Carpenter v. Dexter, 8 Wall., 513. 
 
 6 Delano v. Jopling, 1 Litt., 117.
 
 708 FACTS OF "WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 states of Missouri ^ and California - take judicial notice of 
 the laws governing their respective territories prior to their 
 acquisition by the United States ; but these can hardly be 
 regarded as exceptions to tlie rule, as it amounts to nothing 
 more than judicial recognition of the prior laws of the 
 land.'' The Indiana courts, for similar reasons that govern 
 the courts of Kentucl^y, take notice of a Virginia statute 
 reserving certain rights to legislate in respect to a portion 
 of the territory known as the " Illinois grant," released to 
 the general government.* Following the same principle, 
 the courts of Tennessee have taken judicial notice of cer- 
 tain J^ortli Carolina statutes.'^ When the existence of a 
 foreign statute has been once judicially acknowledged, the 
 same court will presume its continuance in force as proven, 
 until its repeal or amendment has been established by com- 
 petent evidence.*^ 
 
 §14:00. Public Treaties. — Closely aUied to public stat- 
 utes, as being entitled to judicial recognition without plead- 
 ing or proof, are the treaties entered into by the general 
 government with foreign states or the Indian tribes. Being 
 the public acts of that branch of the government clothed 
 by the federal constitution with, plenary powers in the prem- 
 ises, they become a part of the law of the land, to the 
 same extent as though they were the results of national 
 legislation. Hence such treaties will be judicially noticed 
 by both national and state courts.'' The obligations assumed 
 by the United States rest alike upon the United States and 
 each member of the Union, AU are represented by the 
 
 1 Chouteau v. Pierre, 9 Mo., 3; Anderson v. Biddle, 9 Mo., 580. 
 
 2 Payne v. Ti-eadwell, 16 Cal., 230. 
 
 3 See United States v. Turner, 11 How., 663, 
 
 ^Henthorn v. Doe, 1 Blackf., 157. 
 
 5 Richards v. Hicks, 1 Overton, 207. See, also, IMiddlebury C!ollege v. 
 Cheney, 1 Yt., 348; Herschfeld v. Dexel, 12 Ga., 582. 
 
 6 Graham v. WiUiams, 21 La. An., 594. 
 
 ■'Montgomery v. Deeley, 3 Wis., 709; La Croix v. Sarrazia, 15 Fed. 
 Rep., 489.
 
 FACTS OF WHICH COUKTS TAKE JUDICIAL NOTICE. 709 
 
 treaty-making power, and the courts belong to a branch of 
 the same general government, and are authorized by the 
 same fundamental law, as agencies for carrying out a com- 
 mon purpose. And this recognition must embrace the date 
 of the consummation of such treaties, as well as the particu- 
 lar rights secured or the duties imposed upon either party. ^ 
 
 §1407. Public Institutions. — Institutions of a public 
 character have in some instances a double claim upon the 
 courts for judicial recognition. They are so recognized be- 
 cause they are established by law ; as court-houses, asylums, 
 public prisons, legall}' authorized banks of issue, and the 
 hke.^ They may also challenge notice on account of their 
 publicit}'-, and well knoAvn situation and character. The 
 English courts take judicial notice of the universities of 
 Oxford and Cambridge, and also that they were established 
 for the advancement of religion and learning.' Similar 
 institutions in this country might also be taken notice of 
 judicially, as belonging to the history of the country or for 
 the reason that their existence is notorious. 
 
 § 1408. Local Customs, and Special and Private Stat- 
 utes. — Customs are only judicially noticed when so general 
 in their character as to be universally known. Purely local 
 customs, even those prevalent among the Indian tribes, have 
 been ignored, when it was sought to bring them to the at- 
 tention of the courts, otherwise than by pleading and evi- 
 dence.^ The rules of a board of brokers, not amounting to 
 a general usage of trade,' and the laws and customs of a 
 church organization, have been excluded from judicial no- 
 tice as not possessing sufficient general interest or notoriety 
 to be entitled to recognition by the courts, although they 
 might be quite generally known in the locality.^ There 
 
 1 Carson v. Smith, 5 Minn., 78 ; Dale v. "Wilson, 16 Minn., 525. 
 
 2 Shaw V. The State, 3 Sneed, 86. 
 
 3 Oxford Rate, 8 El. & Bl., 184. 
 
 < Turner v. Fish, 28 Miss., 306; Dutch, etc., Co. v. Mooney, 12 CaJ., 
 534; Sullivan v. Hense, 2 Colo., 424. 
 
 5 Goldsmith v. Sawyer, 46 Cal., 209. 
 
 6 Sarahass v. Armstrong, 16 Kan., 192 ; Youngs v. Ransom, 31 Barb., 49.
 
 710 FACTS or WHICU COUETS TAKE JUDICIAL NOTICE. 
 
 are, however, many facts to be noticed hereafter as histor- 
 ical, geographical, etc., of which courts have taken notice, 
 upon grounds less satisfactory than \yould justify a similar 
 recognition of some local customs. Courts will not, in gen- 
 eral, take notice of private acts of the legislatm-e.^ They 
 will not, on demurrer, look beyond the record to ascertain 
 the provisions of such an act when referred to only by its 
 date and title.^ An act of assembly authorizing a certain 
 railroad company to guarantee the bonds of any incorpo- 
 rated company, individual or firm engaged in manufactur- 
 ing, in any county through which the company's road 
 should pass, was held to be a private act, of which the court 
 would not take judicial notice.^ Legislative enactments 
 establishing corporations will only be judicially noticed when 
 declared to be pubhc acts ; and this declaration will be in 
 the act itself.^ When not so designated they are generally 
 regarded as private or special acts, from the natm'e of the 
 subject of legislation, and the private interests thereby 
 promoted; and when so classified will not be taken judicial 
 notice of even by the courts of the state by whose legis- 
 lature they were enacted.* 
 
 § 1409. Municipal Ordinances. — The same is true of the 
 ordinances of municipal corporations, when their provis- 
 ions are at issue in courts of superior jurisdiction.^ But in 
 
 1 Workingmen's Bank v. Converse, 33 La. An., 963, 
 
 2 Broad Street Hotel Co. v. Weaver, 57 Ala., 26. But see Halbert v. 
 Skyles, 1 A. K. Marsh., 368; Collier v. Baptist, etc., Society, 8 B. Monr., 
 68; Legrand v. Hampden Sidney CoUege, 5 Munf., 324, The manner of 
 pleading private statutes is regulated by statute. 
 
 3 Timlow V. Philadelphia, etc., R. Co., 99 Pa, St., 284, 
 
 4 Butler V. Robinson, 75 Mo., 193. But the expiration of a bank char- 
 ter has been judicially noticed. Terry v. Merchants', etc., Bank, 66 Ga., 
 177. 
 
 5 Allegheny v. Nelson, 25 Pa. St., 332; Drake v. FleweUen, 33 Ala., 
 106; "Winnipiseogee Lake Co. v. Young, 40 N, H., 420; Atchison, etc., 
 E. Co,, V. Blackshu-e, 10 Kan., 477; DanvUle, etc., Co. v. The State, IG 
 Ind., 456; Hailes v. State, 9 Tex. App., 170. 
 
 6Mooney v. Kennett, 19 Mo., 551; Garvin v. WeUs, 8 Iowa, 286; 
 Luckin v. The Commonwealth, 4 Bush, 440; Horace v. Chicago, etc., R.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 711 
 
 trials before the mayor or other judicial officer of a city, 
 notice may, and probably shoidd, be taken of the oixiinances 
 of the municipality.^ And where a prosecution for the vio- 
 lation of such ordinances was appealed from the police 
 judge of a city to the district court, it was held that even 
 the latter court might, for the purposes of that action, take 
 judicial notice of the incorporation of such city and its or- 
 dinances.- The enactments of boards of county commis- 
 sioners fall within this rule. Hence where the boundaries 
 of a township were established by the authority of such a 
 board ; ' or public ferries were by them authorized in the ex- 
 ercise of a power with which they were clothed by statute ; * 
 or where, pursuant to the general law, they newly divided 
 certain counties and erected new ones,* such acts could only 
 appear by pleading and proof, though the law of the state 
 under which they acted was a public statute, and as such 
 entitled to judicial notice. In one or two of the states, 
 however, the rule seems to be, that while the courts will not 
 take notice of private acts, they are not required to be 
 pleaded.^ 
 
 § 1410. Geographical Facts. — There are certain geo- 
 graphical facts of which courts will take judicial notice, for 
 the reason that they are universally recognized, or are 
 within the territorial jurisdiction of the court. Thus, in 
 Indiana, the position of the falls of the Ohio river have 
 been so noticed, in connection with the fact that pilots for 
 
 Co., 38 Wis., 463; New Orleans v. Labott, 33 La. An., 107; Chicago, etc., 
 R. Co. V. Klauber, 9 111. App., 613; People v. Buchanan, 1 Idaho (N. S.), 
 681. 
 
 iLaporte City v. Goodfellow, 47 Iowa, 572; State v. Leiber, ll>Iowa, 
 407. 
 
 2 Solomon v. Hughes, 24 Kan., 211. 
 
 3 Bragg V. Rush County, 34 Ind., 406; Indianapolis, etc., R. Co. v. 
 CaldweU, 9 Ind., 397. 
 
 < State V. Wise, 7 Ind., 645. 
 
 5 Buckinghouse v. Gregg, 19 Ind., 401. 
 
 •"Bhss on Code PI., § 183, n. 2, citing Legi-and v. Hampden Sidney Col- 
 lege, 5 Munf. (Va.), 324; Collier v. Baptist, etc., Soc'y, 8 B. Mon., 68; 
 Il^l'jcrt V. Skyles, 1 A. K. Marsh., 368.
 
 712 FACTS OF WHICH COURTS TAKE JUDICIAL KOTICE. 
 
 ■QQ other falls were appointed in that state ; ^ also the divis- 
 ion of land into sections, and the direction from one quar- 
 ter-post to another.- So the boundary lines of counties have 
 been noticed, as well to determine what towns were included 
 as to ascertain their area.^ But in respect to the location of 
 towns, and the boundaries of counties, the rule is by no 
 means uniform. Thus, though it is decided in Texas that 
 the court would take judicial notice that Galveston was 
 Avithin a county of the same name ; * that a certain town 
 was within a certain county, where the fact was recognized 
 by a public statute ; ^ and that a town is situated in a county 
 of which it is the seat of government ; ^ the courts of the 
 same state will not take notice of the situation of all named 
 locaUties within particular counties.'' ISTor will the location 
 of towns, within the boundaries of a particular county, be 
 judicially noticed in every instance by the courts of Georgia.^ 
 Pubhc policy requires that the comets should recognize the 
 fact that certain lands are within the Indian reservation." 
 So, in Alabama, the court took notice that certain real es- 
 tate embraced in the district of lands for sale at Cahawba, 
 was in that state ; ^'^ and that Mobile belonged to a certain 
 chancery district." The United States supreme court will 
 take judicial notice that by law the country is divided into 
 collection districts for revenue purposes, and that such dis- 
 
 I Cash V. Auditor, 7 Ind., 227. 
 2Mossman v. Forrest, 27 Ind., 283. 
 
 3 Ham V. Ham, 39 Me., 3G3; The State v. Jackson, 39 Me., 291; Board 
 of Com'rs, etc., v. Spitler, 13 Ind., 235; Indianapolis, etc., R. Co. v. 
 Moore, 16 Ind., 43; Solyer v. Romanet, 52 Tex., 562; Hoffman v. State, 
 12 Tex. App., 406; State v. Reader, 60 Iowa, 527; Indianapolis, etc., R. 
 Co. V. Stephens, 28 Ind., 429. 
 
 4 Solyer V. Romanet, 52 Tex., 562. 
 
 5 Hoffman v. State, 12 Tex. App., 406. 
 « Carson v. Dalton, 59 Tex., 500. 
 
 7 Boston V. State, 5 Tex. App., 383. 
 
 8 Clayton v. May, 67 Ga., 769. 
 
 9 French v. Lancaster, 2 Dak., 346. 
 10 King V. Kent, 29 Ala., 542. 
 
 II Alabama Gold Life Ins. Co. v. Cobb, 57 Ala., 647.
 
 FACTS OF WHICH C.iUKTS TAKE JUDICIAL NOTICE. 713 
 
 tricts have defined geographical boundaries.^ Such promi- 
 nent features of the geography of the country as the 
 situation of large cities, the great lakes, mountains, rivers 
 and the boimdaries of states are matters that claim the 
 attention of courts; but it was necessary at one time 
 for a court of last resort to decide the mooted question, 
 whether the courts of Missouri should take judicial no- 
 tice of the fact that that state was east of the Rocky 
 Mountain S.2 The following facts have been judicially no- 
 ticed, on account of their geographical prominence: The 
 distance between well known points by the usual routes of 
 travel,^ and in one case the ordinary speed of railroad trains 
 between such points;"* that a portion of a public road 
 between two points lay within a certain county ; ^ the rela- 
 tive situations of a city and a river ; ® the fact that a partic- 
 ular river did not lie, throughout its entire length, in one 
 state ; ^ the navigability of large streams ; ^ and in the ad- 
 miralty courts, judicial notice was not only taken of the 
 situation of a foreign town, with reference to a certain 
 river, but it was also noticed that a bar formed in the 
 mouth of the river, over which vessels of a certain draught 
 could not pass.^ There are certain other geographical feat- 
 ures that are not noticed by all the courts, for the reason 
 
 1 United States v. Jackson, 104 U. S., 41. 
 
 2 Price V. Page, 24 Mo., 65. 
 
 spearce v. Long-fit, 101 Pa. St., 507; 47 Am. Rep., 737; Rice v. Mont- 
 gomery, 4 Biss., 75 ; Fabyan v. Russell, 38 N. H., 84. 
 
 ^Pearce v. Longfit, 101 Pa. St., 507. 
 
 5 Indianapolis, etc., R. Co. v. Case, 15 Ind., 2; Indianapolis, etc, R. 
 Co. V. Para more, 12 Ind., 406. 
 
 6 City Council, etc., v. Montgomery, etc., Co., 31 Ala., 76; Winnipis- 
 eogee Lake Co. v. Young, 40 N. H., 420. 
 
 ^Cummingsv. Stone, 13 Mich., 70. 
 
 8 Wood V. Fowler, 26 Kan., 682; 40 Am. Rep., 330; Neardhouser v. 
 State, 28 Ind., 257. 
 
 9 The Peterhoff, Blatch. Prize Cas., 463. At one time the Texas 
 courts refused to take judicial notice of the fact that the cities of New 
 York and New Orleans were not in the state of Texas. Wliitlock v. 
 Castro, 22 Tex., 108; Russell v. Martin, 15 Tex., 238.
 
 714 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 that they are onl}^ notorious within very narrow limits. To 
 claim undisputed attention of the courts, geographical facts 
 should be historical and traditional within the district where 
 brought in question, or of such prominence as to raise the 
 presumption that they are generally known. Hence the 
 capacity for navigation of " Five-Mile Run," in Cattaraugus 
 count}'^, ISTew York, Avas held to be a fact of which the court 
 Avould not take judicial notice.^ So the court refused to 
 take notice of tlie distance between the seat of government 
 and a particular mining location ; - and of the locality of 
 tlie office of a particular justice of the peace, and that a 
 particular number on a certain street was in a given ward or 
 district of a city.^ In this connection, the case of People v. 
 Callahan * is illustrative of the result of asking too much of 
 the court in the way of judicial notice of local geographical 
 facts. The court very properly refused to take notice of 
 the locahty of the streets and avenues, and their tennini, 
 and the houses situated thereon. For like suflDcient and 
 obvious reasons, the courts of Illinois Avould not take notice 
 of the intersection of a street Avith a certain railroad track.^ 
 Nevertheless, such matters as these may be brought to the 
 attention of the court in such a manner as to bring them 
 within the classification of geogra])hical facts to be judiciall}" 
 noticed. Thus where certain streets of the city of San 
 Francisco Avere designated on the official map of the city, it 
 was held that the court was not only bound to take judicial 
 notice of such streets, where marked on a diagram filed in the 
 case, but also of the relations of such streets Avith each other 
 and the directions in Avhich they run.^ The rule in England 
 as to geogra]3hical facts of Avhich the courts take judicial 
 notice is much the same as in this country ; a distinction 
 
 1 Buffalo Pipe Line Co. v. New York, etc., R. Co., 10 Abb. N. C, 107. 
 
 2 Russell V. Hoyt, 4 Mont., 413. 
 
 3 Allen V. Scharringhausen, 8 Mo. App. , 229. 
 
 4 60 How. Pr., 372; 23 Hun, 581. 
 ^Pennsylvania Co. v. Frana, 13 lU. App,, 91. 
 6 Brady v. Page, 59 Cal., 52.
 
 FACTS OF WHICH COtTRTS TAKE JUDICIAL NOTICE. 715 
 
 which would probably obtain here is there made between 
 courts, as to the relation of their jurisdiction to the geo- 
 graphical features in question. The courts generally are 
 required to notice such facts as that the colony of Yictoria 
 is abroad, or beyond seas ; ^ and that a place lies east or west 
 of Greenwich.- So where an act gave jurisdiction to justices 
 of a county, and an order was made under it by the justices, 
 who described themselves as justices " in and for the said 
 city," it was held that the court would take notice that the 
 city was also the county.' Upon tlie other hand, the courts 
 refused to notice that a particular street Avas not in a cer- 
 tain county, although the fact was quite generally known 
 in the community,^ and also whether particular places were 
 Avithin certain counties.^ JSTevertheless it was held that the 
 courts of quarter sessions should take judicial notice of the 
 petty sessional divisions in their counties.'' 
 
 § 1411. Historical Facts, Incorporation of Towns, 
 etc. — In a preceding section we have called attention to 
 the unwillingness of the courts to take judicial notice of 
 private or local statutes, and the exceptions to the general 
 doctrine.' "We have seen that except where a statute is 
 declared by the legislature to be public, and it refers to 
 private or local interests, such as acts of incorporation and 
 the hke, the courts will require them to be established by 
 pleading and proof, or at least by proof, where they are not 
 required to be pleaded. Nevertheless there are certain 
 legislative acts of a private, special or local character, of 
 which the courts seem inclined to take judicial notice in an 
 indirect manner, on account of the historical prominence 
 of the facts in which they result, even where they are not 
 
 1 Cooke V. Wilson, 2 Jur., N. S., 1094; 1 C. B., N. S., 153. 
 
 2 Curtis V. Maich, 4 Jur., N. S., 1112. 
 
 3 Reg. V. St. Maurice, 16 Q. B., 908. 
 
 * Humphreys v. Budd, 5 Jur., 630. 
 
 5Bi-une V. Thompson, 2 Q. B., 789; 2 G. «& D., 110. 
 
 eReg. V. Whittles, 13 Q. B., 248. 
 
 ^ Supra, § 1408.
 
 716 FACTS OF WHICH COUKTS TAKE JUDICIAL NOTICE. 
 
 declared to be public acts. Thus, where it appeared in the 
 record of a case that a certain town had assumed to act as 
 an incorporated village, and an offense was charged as hav- 
 ing been committed within its corporate limits, the court 
 took notice of its incorporation.^ So in Virginia it is held 
 that in an action against a railroad company by name, the 
 court would so far take notice of the fact that defendant 
 was a corporation that the allegation need not be made in 
 the pleadings, nor proof offered in support thereof, unless 
 its incorporation were denied under oath.- But elsewhere 
 it is decided that the courts would not take notice of the 
 fact that the inhabitants of a particular town or district had 
 availed themselves of the provisions of a general law, to be- 
 come incorporated.^ There are prominent historical facts, 
 however, which are more uniformly and consistently noticed 
 by the courts. For example, the actual destruction of the 
 institution of slavery, as a result of the late civil war, prior 
 to the adoption of the constitutional amendment by which 
 it was abolished, or any legislation to that end, was recog- 
 nized as a fact of history.* The existence of this war, 
 together with most of the prominent events that marked 
 its origin and progress from 1861 to 1865, have been ju- 
 dicially noticed.^ Thus the actual termination of armed 
 resistance to the general government, though not marked 
 by anything corresponding to a treaty of peace, has been 
 so noticed, and that hostilities ceased prior to the 1st day 
 of June, 1865, so that the regular transmission of mails be- 
 tween points within the section theretofore known as hostile 
 to the general government, was resumed prior to the 18th 
 day of December of that year.^ So, as an incident of the 
 war, judicial notice was taken that " dollars " of Confederate 
 
 1 Doyle V. Bradford, 90 111., 416. 
 2 Baltimore, etc., E. Co. v. Sherman, 30 Gratt., 602. 
 3 Hopkins v. Kansas City, etc., E. Co., 79 Mo., 98; Temple v. State, 15 
 Tex. App., 304; 49 Am. Eep., 200. 
 4 Ferdinand v. The State, 39 Ala., 706. 
 5Cuylerv. Ferrill, 1 Abb. (U. S.), 169. ' 
 e Turner's Adm'r v. Patton, 49 Ala., 406.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 717 
 
 money were of different value from money of the same 
 denomination recognized by the United States;' and in 
 Georgia, " Sherman's march to the sea," and the date when 
 it occurred, were judicially noticed.- The farthest advance 
 made by an}^ court, towards usurpation of the province of 
 both the lawyer and the jury, in order to arrive at con- 
 clusions without judicial inquiry, was where the supreme 
 court of Alabama took notice of the fact that in the years 
 immediately following the war, the people of that state 
 were suffering from great pecuniary embarrassment and 
 insolvency, and that, in consequence, it may have been 
 extremely difiBcult for a guardian to discharge his duty to 
 his Avards.^ This case is confronted by another from a 
 neighboring state, where a more notorious fact of history, 
 belonging to the same series of events, was ignored. This 
 was the firing upon Fort Sumter, in 1861.* So in Tennes- 
 see the relative positions of the two armies Avas not judi- 
 cially noticed in one case.'^ The court of claims took 
 judicial notice of Fremont's public career in California, as 
 a matter embraced in the histor}^ of the country." So the 
 supreme coui't of Indiana will notice all facts of general 
 importance connected with the history of that state, and 
 of its topography and condition.'^ So, also, will the Illinois 
 courts recognize, the population of a county, according to 
 the census, for the puqiose of classifying it under the con- 
 stitutional provision regulating the fees of clerks of circuit 
 courts.^ The separation of a church into two branches, one 
 ''north" and one "south," has been regarded of sufficient 
 historical importance to entitle it to judicial notice.* So, 
 
 1 Keppel's Adm'rs v. Petersburg R. Co., Chase's Dec, 167. 
 
 nVilliams v. State, 67 Ga., 260. 
 
 3 Ashley's Adm'x v. Martin, 50 Ala., 537. 
 
 ♦Bishop V. Jones, 28 Tex., 294. 
 
 sKelley v. Storey, 6 Heisk., 202. 
 
 «De CeUs v. United States, 13 Ct. of CI, 117. 
 
 7 Williams v. State, 64 Ind., 553. 
 
 8 Worcester Bank v. Cheney, 94 III, 430. 
 * Humphrey v. Burnside, 4 Bush, 215.
 
 718 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 the political and social condition of a state,' though it can 
 only be in respect to very striking and well-known features 
 of such condition, as in the case last cited, that the principal 
 industry of the state was mining, and that large portions of 
 the land were mineral in character and belonged to the 
 government of the United States.^ It was also judicially 
 noticed as a historical fact that in times past the court was 
 held in a certain place, and the times when it was so held.* 
 It has been laid down that the facts of history of which 
 judicial notice will be taken on appeal are only such as are 
 of general notoriety, and of interest to the people of the 
 entire state.'* It seems consistent with this rule of confining 
 attention to matters of interest to the state, that in Texas, 
 where the common law was not adopted, the court refused 
 to take judicial notice of its adoption in other states.'^ Such 
 matters as the division of the state into judicial and con- 
 gressional districts;^ into counties, etc.,''^ and the counties 
 into townships or other subordinate political divisions,^ will 
 be judicially noticed as part of the public legislation of the 
 state, or they may be so noticed as geographical or historical 
 facts. Tlie courts of Indiana are bound to take notice, as 
 part of its history, as well as the result of its law^s, that 
 during and since the civil war, the adjutant-general has 
 made records of the muster rolls of the regiments furnished 
 the United States.^ 
 
 1 Lewis V. Harris, 31 Ala., 689; Irwin v. Phillips, 5 Cal., 140. 
 
 2 Irwin V. Phillips, 5 Cal., 140. 
 
 3 Ross V. Austin, 3 Cal., 183. 
 
 nicKinnonu. Bhss, 21 N. Y., 206. 
 
 SBradshaw v. Mayfield, 18 Tex., 21. 
 
 6 United States v. Johnson, 2 Sawyer, 482 ; The People v. Eobinson, 17 
 Cal., 363. 
 
 " Buckinghouse v. Gregg, 19 Ind., 401; La Grange v. Chapman, 11 
 Mich., 499; Martin v. Martin, 51 Me., 366: Woodward v. Chicago, etc., 
 R. Co., 21 Wis., 309; Hinckley v. Beckwith, 23 Wis., 328; Cook v. Tall- 
 man, 40 Iowa, 133. 
 
 8 State V. Powers, 25 Conn., 48; Kidder v. Blaisdell, 45 Me., 461; 
 Wright V. Dunham, 13 Mich., 414; Treasurer v. Bishop, 39 Vt., 353. 
 
 9 Monroe County Com'rs v. May, 67 Ind., 562.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 719 
 
 §1412. Election and Appoiiitmeut of Offieers. — AVhen 
 it is laid down as a general principle that courts wiU take 
 judicial notice of the officers chosen at a general election, it 
 is not to be understood, where the election of a particular 
 contestant is the matter at issue, that the court will take 
 judicial notice of the ultimate fact, and thus end the con- 
 troversy. In taking notice of the law authorizing the elec- 
 tion, there is no admixture of fact to distinguish this from 
 other public statutes. But it is the action taken under the 
 statute that the court recognizes when it takes notice of the 
 holding of the election, the officers chosen, and their terms 
 of office.' Hence the court is supposed to know who is the 
 chief executive of the state or nation, also who fill the other 
 offices, the incumbents of which were required to be chosen 
 at a general election, by reason of the judicial notice taken 
 of the result of the election and the duration of the official 
 terms.'- Judicial notice will also be taken of the appointment 
 of officers,' when that is the mode of selection provided by 
 law. But courts will not take notice of the official char- 
 acter of any person claiming to act in that capacity, unless 
 the office be one of those mentioned in the statute or au- 
 thorized by law."* It is held that the appellate court will 
 take notice of who are the judges of subordinate courts 
 within the same jurisdiction.'^ So that the trustee of the 
 civil township is also trustee of the school township.® It 
 
 1 State 17. Merrick, 15 Iowa, 123; Ellis v. Reddin, 12 Kan., 306; Davis 
 V. Best, 2 Iowa, 96 ; Ragland v. Wynn, 37 Ala. , 32 ; Alexander v. Bum- 
 ham, 18 Wis., 199; Himmelman v. Hoadley, 44 Cal., 213. 
 
 2 Wells V. Jackson, etc., Co., 47 N. H., 283; Dewes v. Colorado Co., 32 
 Tex., 570; Hizer v. The State, 12 Ind., 330: Ingraham v. The State. 27 
 Ala.. 17; Ragland v. Wynn, 37 Ala., 32: Fancher v. De Montegre, 1 
 Head, 40; Fox v. Commonwealth, 81 Pa. St., 511. 
 
 3 Burnett v. Henderson, 28 Tex., 588; People v. Lyman, 2 Utah, 30. 
 < Alford V. State, 8 Tex. App., 545. 
 
 5 Kilpatrick v. The Commonwealth, 31 Pa, St., 198 ; Ex parte Peterson, 
 33 Ala., 74 ; Graham v. Anderson, 43 HI., 514. But see Russell v. Sargent, 
 7 111. App., 98. 
 
 ^Inglis V. State, 61 Ind., 313.
 
 720 FACTS OF "WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 may fairl}'- bo doubted whether the local courts of one por- 
 tion of the state would be required to take notice of all the 
 subordinate officers chosen at a general election in other 
 portions of the state, Tvithout resorting to some means of 
 ascertaining the very truth of the fact, even where the prin- 
 ciple of judicial notice went so far as to dispense with aver- 
 ment in the pleadings and proof by the ordinary methods. 
 It could hardly be supposed that the presiding judge or 
 justice would, as a matter of fact, be acquainted with the 
 persons of each officer so chosen throughout the state. But 
 circuit courts take notice of the officers of the county 
 where the court is in session.' This is particularly true of 
 officers of the court, as sheriff and clerk.- So the state 
 courts are bound to know the officers of federal courts within 
 the state,* and have even recognized mustering officers, who 
 were known to the whole community as in the employ of 
 the general government.'* But the courts wull not, in gen- 
 eral, recognize mere deputies nor their official acts, except 
 where they are done in the name of the chief officer.^ It 
 is not always the general election and its result which re- 
 quires the court to notice the officer. Notice has been taken 
 of officers regardless of the manner in which they were 
 selected, and even where they came in by succession on the 
 death or removal of a predecessor.'' "When it is remem- 
 bered that judicial notice is not taken of the election for 
 the purpose of settling disputes as to who received the ma- 
 jority of votes cast, it will be apparent that it is of officers 
 de facto, of which the courts take notice, regardless of 
 whether they are officers de jure or not.'' Indeed, so indif- 
 ferent are the courts to the results of elections, as such, that 
 
 iDyerr. Flint, 21 lU., 80. 
 
 2 Thompson v. Haskell, 21 Ul., 215; Bishop v. The State, 30 Ala., 34. 
 
 3Buford V. Hickman, 1 Hempst., 232. 
 
 4 Chapman TownsMp v. Herrold, 58 Pa. St., 106. 
 
 s Joyce V. Joyce, 5 Cal., 449; Ward v. Henry, 19 Wis., 76. 
 
 6 Lindsey v. Attorney-General, 33 Miss. , 508. 
 
 7 The State v. Williams, 5 Wis., 308; Clark v. Commonwealth, S9 Pa. 
 St., 129.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 7'2\ 
 
 they have refused to take notice of such results when tlie 
 object was to take the sense of the community upon what 
 are known as " local option laws." The}'' were not reco<,'-- 
 nized either as laws or the results of general elections.' But 
 the reason for ignoring such elections as these or their re- 
 sults, when provided for by a general statute, is not very 
 clear. 
 
 §1413. Official Signatures and Seals. — Not only will 
 courts take judicial notice of the officers of the county 
 within which they are regularly held, but for many pur- 
 poses they will take notice of their official signatures.- 
 Thus, the court will recognize, without allegation or proof, 
 the signature of a clerk of a court of record to a tran- 
 script ; ^ the official signature of the register or recorder of 
 deeds,Mhe collector of levee taxes,' and the signatures of 
 attorneys of the court.*^ The signatures of state officers are 
 judicially noticed, and in one instance, at least, that of the 
 deput}'" auditor-general.^ The seal and signature to a patent 
 to public lands of the United States will be judicially 
 noticed by all courts, both state and federal, without being- 
 pleaded or supported by evidence of their genuineness.'* 
 But the doctrine that courts will take notice of the signa- 
 tures of officers, even of the count}'^, is subject to certain 
 qualifications. Thus, they will uniformly take notice of the 
 signatures of clerks of courts, when such signatures are 
 
 1 Johnson v. Common Council, 16 Ind., 56. 
 
 -Wetherbee v. Dunn, 32 Cal., 106; Alderson v. Bell, 9 Cal., 315; Jones 
 V. Galis' Curax'r, 4 Mart., 635; Wood v. Fltz, 10 Mart. (O. S.), 196; Fol- 
 lain V. Lefevre, 3 Rob. (La.), 13; Despau v. Swindler, 3 Mart., N. S., 
 705. [But courts will not take notice of the signatures of parties to 
 actions. Litchfield v. Burwell, 5 How. Pr., 346; Alderson v. Bell, 9 
 Cal., 315.] 
 
 ' State V. Postlewait, 14 Iowa, 446 ; State v. Shilling, 14 Iowa, 455. 
 
 < Scott V. Jackson, 13 La. An., 640. 
 
 ^Templeton v. Morgan, 16 La. An., 438. 
 
 ^Masterson v. Le Claire, 4 Minn., 163; Symmes v. Major, 21 Ind., 443, 
 
 T People V. Johr, 22 Mich,, 461. 
 
 8 Yount V. Howell, 14 Cal., 465; Patterson v. Winn, 5 Wheat., 232. 
 46
 
 7l22 FACTS OF "WmCII COURTS TAKE JUDICIAL NOTICE. 
 
 aiRxed to copies of the proceedings of the court,^ while it 
 has been doubted whether the signature of the same officer, 
 though affixed in the line of his duty, to a county bond, 
 would be so recognized.^ Nevertheless, the signature of a 
 county officer to a tax deed was judicially noticed in Cal- 
 ifornia.'* So, notwithstanding the notice taken by the courts 
 of the signatures of attorneys, it is only when the}'' are used 
 in connection with their professional duties as officers 
 of the court.^ The signature of a notary public is also 
 noticed by the courts of Illinois, when he is authorized to 
 certify to an oath without a seal.-^ It goes without saying 
 that a court will be presumed to know the signature of its 
 own clerk.*^ Official seals are more extensively noticed in 
 this manner than the mere signatures. Thus the national 
 seals of countries recognized by the United States are 
 entitled to judicial recognition.' So the seal of a notary 
 public is entitled to notice when used to attest acts done 
 under the lex inercatoria^ but not otherwise, except as pro- 
 vided by statute.^ 
 
 § lil't. Terms of Court and Judicial Proceedings. — 
 Appellate courts take judicial notice of subordinate courts 
 within the same territorial jurisdiction and of their terms, 
 and the extent of their jurisdiction as prescribed by law." 
 This, it will be noticed, amounts to little else than taking 
 judicial notice of public laws ; but when notice is taken of 
 the signatures of judges or justices of subordinate courts, 
 
 1 Major V. The State, 2 Sneed (Tenn.), 11. 
 
 -'- Judge Bliss in 2 Cent. L. J., 447. 
 
 3Wetherbee v. Dunn, 33 Cal., 106. 
 
 *Masterson v. Le Claire, 4 Minn., 163. 
 
 5 Dyer V. Flint, 21111., 80. 
 
 «Buell V. State, 72 Ind., 523. 
 
 7 The Estrella, 4 Wheat., 298; United States v. Palmer, 3 Wheat., 610. 
 
 8 Bliss on Code Pleading, § 197; Pierce v. Indseth, 106 U. S., 546. 
 
 9 Tucker v. The State, 11 Md., 323: Graham v. Anderson, 43 111., 514; 
 Pugh V. The State, 2 Head, 227; Morgan v. The State, 12 Ind., 448; Mc- 
 Ginnis v. The State, 24 Ind., 500; Davidson v. Petticolas, 34 Tex., 27; 
 Rodgers v. The State, 50 Ala., 102; Meshke v. Van Doren, 16 Wis., 319; 
 Lewis V. Wintrode, 76 Ind., 13.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 723 
 
 they are so recognized as matters of notoriety.' The extent 
 to Avhich one court will take notice of the rules of another 
 is a little uncertain.- It is probable that a trial court will 
 be required to take notice of the rules of the appellate tri- 
 bunal ; but the converse of this proposition is not generally 
 true. The rules of the trial court are not noticed by the 
 appellate courts either as public law or matters of general 
 notoriet3\' In one case, however, where law and equity 
 were administered in separate tribunals, it Avas held that all 
 courts within the jurisdiction should take judicial notice of 
 the rules of the court of chancery.* ^Nevertheless, courts 
 are not required to take judicial notice of the rules or pro- 
 ceedings of other courts of similar or inferior jurisdiction.* 
 Nor is a state court required to take notice that proceeding's 
 in bankruptcy have been instituted by or against parties to 
 a suit pending therein.'' But it is otherwise of the rules, 
 judgments and proceedings of the court, where they are 
 relied on as matters entitled to judicial notice. Thus the 
 court would notice its own judgment in a suit which was 
 virtually a portion of the same record,'' and the existence 
 before a judge of a court, of a prosecution for crime, against 
 one called as a juror in his court.'' This rule, however, is 
 subject to certain modifications. Thus, a circuit court sit- 
 ting in one county refused to take notice of a nolle j^roseqiiv 
 entered in another county of the same circuit, and its refusal 
 was approved by the supreme court of the state.'' The 
 mere fact that the knowledge of what has transpired in the 
 
 ' Supra, § 1413. 
 
 2 See and compare Contee v. Pratt, 9 Md., 73; Cherry v. Baker, 17 Md., 
 75; Scott r. Scott, 17 Md., 78. 
 
 3 Cherry v. Baker, 17 Md., 75; Cutler v. Caruthers, 48 Cal., 178; O'Con- 
 nerv. Koch, 56 Mo., 259. 
 
 < Contee v. Pi-att, 9 Md., 73. 
 
 5 Vassault v. Seitz, 31 Cal., 225. 
 
 f'Esterbrook Steel Pen, etc., Co. v. Ahem, 3 N. J. Eq., 341. 
 
 7Farrar r. Bates, 55 Tex., 193. 
 
 8 State V. Jackson, 35 La. An., 769. 
 
 9 State V. Edwards, 19 Mo., 674.
 
 724 FACTS OF WHICH COUETS TAXE JUDICIAL NOTICE. 
 
 course of a trial is present with the judge, when asked to 
 notice it, is not suflBcient to bring it "uithin the class of 
 facts that do not require pleading or proof.^ TVhere, in an 
 action on a recognizance for review, it appeared that the 
 reviewer had obtained judgment for damages and costs, the 
 court refused to take judicial notice that costs had accrued 
 subsequent to the judgment.- So have the courts refused 
 to take notice of their own proceedings of record in another 
 trial,^ or that there was an)'- connection between the case at 
 bar and one previously tried in the same court.'* And where 
 an affidavit which had been used in a former case in the 
 same court was offered and admitted, the court refused to 
 take notice of the facts of its former use.^ So, although 
 the judges of a subordinate court and its attorneys are 
 known to the appellate court, the latter would not take 
 judicial notice that the judge of one of the subordinate 
 courts, and one of its own attorneys, was identically the 
 same person.^ Judicial notice wiU be taken of the superior 
 courts of other states of the Union and also of the United 
 States, and in ]^ew York of the courts of the Dominion of 
 Canada.'^ So foreign courts of admiralty and their seals 
 wiU be judicially noticed in this country ; ^ but beyond this, 
 their existence must be pleaded and proved as any other 
 foreign law.^ 
 
 §1415. The General Course of Nature.— Courts are 
 presumed to know the general course of nature, and take 
 judicial notice of natural phenomena which belong to the 
 class that is uniform and of general notoriety. That the day 
 
 1 Wheeler v. Webster, 1 E. D. Smith, 1. 
 
 2 Brown v. Qark, 28 Vt. , 690. 
 
 3 People V. De La Guerra, 24 Cal., 73; Lake Merced Water Co. v. 
 Cowles, 31 Cal., 215. 
 
 ^ Banks v. Bumam, 61 Mo., 76. 
 
 5 Baker v. Mygatt, 14 Iowa, 131. 
 
 6 Ellsworth V. Moore, 5 Iowa, 286. 
 
 7 Lazier v. Westcott, 26 N. Y., 146. 
 
 8 1 Stark, on Ev. (8th Am. ed.), 418, 419. ' 
 9 Yrisarri v. Qement, 3 Bing., 438.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 725 
 
 follows the night in consequence of the diurnal rotation of 
 the earth; the recurrence of seasons in their order; the 
 ordinary computation of time, and the like;^ and conse- 
 quently they will notice the coincidence of a certain day of 
 the month with a particular day of the week.^ So they will 
 notice in connection with the regular order of the seasons, 
 that for purposes of husbandry the use of a farm is worth 
 much more per acre during the cropping season than for six 
 months, embracing the winter ; ^ the hour at which the sun 
 rose on a particular day ; * that there are no tidal streams in 
 a designated inland county; ^ that there were certain seasons 
 during which particular crops would mature in the state,^ 
 and also the period of gestation.^ Where the fact is not 
 only invariable, but universally known, or is ascertainable 
 by common and weU recognized authority, as the almanac, 
 it comes properly within the range of judicial cognizance. 
 But courts do not pretend to rely upon their technical 
 knowledge of all natural laws, nor wiU they always take 
 notice of the existence of such laws in which the belief is 
 quite general, and supported by respectable authority. Thus 
 the court would not take judicial notice that the age of a 
 tree could be determined by counting the concentric rings 
 shown by a section of its trunk.^ 
 
 § 14:16. Scientific and Other Facts of Uniform Occur- 
 rence. — To a certain extent the courts will accept, without 
 allegation or proof, facts of which our knowledge is acquired 
 by a study of the natural sciences. Thus, the simple and 
 fundamental rules of mathematics, including the axioms of 
 
 1 Dixon V. NiccoUs, 39 111., 372. 
 
 2Allmanr. Owen, 81 Ala., 167; Sprowl v. Lawrence, 33 Ala., 674; 
 Rodgers v. The State, 50 Ala., 102; Pliiladelphia, •tc., R. Co. v. Le hman , 
 56 Md., 209; Mcintosh v. Lee, 57 Iowa, 156. 
 
 3 Ross V. Boswell, 60 Ind., 235. 
 
 * People V. Chee Kee, 61 Cal., 404. 
 
 5 Walker v. Allen, 72 Ala., 456i 
 
 6 Floyd V. Ricks, 14 Ark., 286. 
 
 7 King V. Luffe, 8 East, 193. 
 'Patterson v. McCausland, 3 Bland, 69.
 
 72 G FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 geometry, would be so noticed. That a section of land con- 
 tri/ining six hundred and forty acres was made up of four 
 quarter-sections, of one hundred and sixty acres each, ■was 
 not considered too abstruse to be entitled to judicial recog- 
 nition.^ The facts to be thus recognized can only be selected 
 upon the principle that the courts accept some of the laws 
 of nature and reject others. There should be universal ap- 
 proval and notoriety. But they must' be governed to some 
 extent by the state of knowledge of the fact in the com- 
 munity. Thus, in Indiana, while the courts take judicial 
 notice that whisky is intoxicating,- and refuse to recognize 
 the fact that wine is not intoxicating,^ they nevertheless 
 hold that the court cannot take judicial notice that common 
 brewer's beer is an intoxicating beverage.* In Common- 
 wealth -y. Peckham it is said : " As well might we require 
 proof that gin is liquid, as that it was intoxicating." ^ And 
 yet the court would probably not be willing to take judicial 
 notice of the percentage of alcohol in this or any other 
 kind of stimulant. The difference between the liquors above 
 mentioned would generally be regarded as only one of de- 
 gree. In Wisconsin the intoxicating nature of beer, as well 
 as that it is a malt liquor, seems to be more widely known 
 than in Indiana, and is for that reason judicially noticed.® 
 On nearly the same plane of notoriety as the foregoing in 
 reference to liquids, is the fact that coal oil is inflammable, 
 of which the courts of Missomi are authorized to take judi- 
 cial notice ; ' while in New York they will not take notice 
 that kerosene oil is a refined coal oil, or a refined earth oil ; ^ 
 and in Vermont the courts would not recognize, without 
 proof of the fact, the inflammability of gin and turpentine, 
 
 1 HiU V. Bacon, 43 lU., 477. 
 
 2 Harman v. The State, 18 Ind., 450. 
 
 3 Jackson v. The State, 19 Ind., 313. 
 
 4 Klare v. The State, 43 Ind., 483. 
 
 5 2 Gray, 514. 
 
 6 Briffitt V. State, 58 Wis., 39; 46 Am. Rep., 621. 
 
 7 State V. Hayes, 78 Mo., 307. 
 
 8 Bennett v. North British, etc., Ins. Co., 8 Daly, 471.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL KOTICE. 727 
 
 for the purpose of avoiding a policy of insurance.' "While 
 the court will probably taivc judicial notice of the grammar 
 of the English language, including tlie ordinary orthog- 
 raphy and pronunciation of words, the line should be drawn 
 at proper names, for which there is no fixed rule. In par- 
 ticular will the court refuse to take notice of the orthography 
 of names in the Polish languao:e." 
 
 §1417. Facts Occurring in the (xeneral Course of 
 Human Life — The Arts, etc. — There are other facts, 
 which have been aptly classified as belonging to " the gen- 
 eral course of the transactions of human life," and conse- 
 quently such as ought to be universally known, of which 
 the courts will take judicial notice.' The example furnished 
 by the case cited was the general knowledge of the peculiar 
 nature of lotteries. And though this doctrine will not 
 admit of indiscriminate extension and application to all 
 things which may be regarded as common in the commu- 
 nity, it is unquestionably proper for the court to dispense 
 with proof of usages and customs of business of such an- 
 tiquity and general use that all men may be fairly presumed 
 to know them.* Thus it was considered that it was sufR- 
 cientl}'' well known, for this purpose, that the facilities of 
 travel have been greatly increased by steam navigation and 
 by railroads ; ^ that at one time gold coin Avas no longer in 
 general circulation as the money of this country, but had 
 become a commodity of tralHc ; ^ that business houses furnish 
 each other's clerks with goods, and charge them to each 
 other ; ^ that, as a general rule, trains running upon a rail- 
 road are run, directed and controlled by the owners of the 
 
 •Mosley v. Vermont, etc., Ins. Co., 55 Vt., 143. 
 
 2 State V. Johnson, 26 Minn., 316. 
 
 3 BouUement v. The State, 28 Ala., 83. 
 <Munn V. Biirch, 25 111., 35. 
 
 5 Manning v. Gasharie, 27 Intl., 399; Wiggins Ferry Co. v. Chicago, 
 etc., R. Co., 5 Mo. App., 374. 
 ^ United States v. American Gold Coin, 1 Woolw,, 217. 
 •Cameron v. Blackman, 39 Mich., 108.
 
 728 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 
 
 road/ and tliat a box freight-car standing still at a highway 
 crossing will not frighten horses of ordinary gentleness.- In 
 adjusting the rights of parties, courts will take notice of no- 
 torious changes in business methods and of new processes 
 of practical utility in facilitating trade.^ They have no 
 right to assume ignorance of current phrases which every- 
 body else understands.* Accordingly the supreme court of 
 Maine recognized the initials " C. O. D.," when affixed to 
 packages sent from seller to buyer by common carriers, as 
 a proper subject for judicial notice; that it meant that de- 
 livery is to be made on payment of the purchase price and 
 the carriers' charges.^ But in Missouri this was regarded 
 as a question of fact for the jury, and hence requiring 
 proof.® It is also held that the courts will take notice of 
 the term " gift enterprise." ^ Upon grounds of general no- 
 toriety, the courts have noticed the fact that the society of 
 Free Masons is a purely charitable or eleemosynary organi- 
 zation,^ and that " adm." was intended as an abbreviation of 
 '' administrator." * So courts of admiralty have taken judi- 
 cial notice of the course of trade between the West Indies 
 and certain ports of the southern states of the Union then 
 under blockade ; ^^ and in one instance went the length of 
 taking cognizance of the fact that a firm in Nassau had 
 been actively and extensively engaged in violating the block- 
 ade.^^ Judicial knowledg-e seems to have been extended in 
 
 1 South, etc.. R. Co. v. Pilgreen, 62 Ala., 305; Evansville, etc., E. Co. 
 V. Smith, 65 Ind., 92. 
 
 2 Gilbert v. Flint, etc., R'y Co., 51 Mich., 488; 47 Am. Rep., 593. 
 
 3 Wiggins Ferry Co. v. Chicago, etc., R. Co., 5 Mo. App., 374. 
 
 4 Bailey v. Kalamazoo, etc., Co., 40 Mich., 251. 
 estate V. Intoxicating Liquors, 73 Me., 278. 
 
 •> McNichol V. Pacific Ex. Co., 12 Mo. App., 401. 
 "Lohmanu. State, 81 Ind., 15. 
 
 8 Burdine v. Grand Lodge of Alabama, 37 Ala., 478. 
 !' Moseley v. Mastin, 37 Ala., 216. 
 
 10 The Mersey, Blatch. Prize Cas., 187; The William H. Northrop, id., 
 235; The Stephen Hart, id., 387; The Peterhoff, id., 463. 
 
 11 The Minna, Blatch. Prize Cas., 833.
 
 FACTS OF WHICH COUETS TAKE JUDICIAL NOTICE. 729 
 
 one case to the value of ordinary labor,^ which is probably 
 the uttermost limit to which the doctrine has been carried, 
 and, in view of the numerous notable facts which other 
 courts have refused to notice, appears to be a capricious ex- 
 ercise of discretion. The rules and regulations of the depart- 
 ments of the general government would seem to be peculiarly 
 within the range of judicial cognizance ; but where it was 
 attempted to justify the absence of original papers, in order 
 to introduce copies certified by the surveyor-general for Cal- 
 ifornia, and also by the secretary of the United States land 
 commissioners, upon the ground that the rules of the de- 
 partment forbade the removal of such originals from the 
 files in the surveyor-generaPs office, the court laid it down 
 broadly that judicial notice would not be taken of the rules 
 adopted for the regulation of the various departments of 
 the federal government, or those established by the board 
 of land commissioners or the surveyor-general.^ And yet 
 the rules and regulations of these departments, for many 
 purposes, have the force and effect of positive law ; and it 
 would seem that the preservation of papers on file in a 
 public office would be peculiarly within the province of the 
 rule-making power of the departments. The supreme 
 court is not bound to take notice of the recording of an in- 
 strument in a particular county merely because the comity 
 court is required by law to take notice of it.^ So the courts 
 have refused, more or less capriciously, to take judicial no- 
 tice of the depreciation of the cmTency during the late 
 war ; * that a bank makes a profit by exchange ; ^ of a local 
 custom entitling prior possessors of land to the use of water 
 for mining purposes, etc. ; ^ that a bank in a foreign state is 
 
 1 Bell V. Burnett, 2 J. J. Marsh., 516. 
 
 2 Hensley v. Tarpey, 7 Cal., 288. 
 
 3 Cicero, etc., Co. v. Craighead, 28 Ind., 374. 
 Olodawell v. Holmes, 40 Ala., 391. 
 
 5 Murray v. Barney, 34 Barb., 336. 
 
 6 Lewis V. McClure, 8 Oreg., 273.
 
 730 FACTS oi*' wnicn courts take judiciat. notice. 
 
 in an insolvent condition ; ^ the value of Canada money ; ' 
 the value of an attorney's services ; * the private seal of the 
 governor of a province ; * who were meant by " black re- 
 ])ublicans ; " ^ the age of a person arraigned for crime ; ® that 
 a railroad corporation had a seal other than a scrawl which 
 appeared to be used for that purpose;^ and the meaning 
 of a printer's private mark to an advertisement, thus, 
 " Oct. 3, 4:t," as indicating th^ date and term of pubhcation.* 
 The arts are also judicially noticed when the matter in 
 question is not too greatly obscured by technicalities. Thus 
 the art of photography, together with the mechanical and 
 chemical processes employed, the scientific principles on 
 which it is based, and its results, are noticed in a general 
 way.^ The character, construction and use of the ice-cream 
 freezer has also been included in the class of noticeable 
 facts.^" Upon comparing the ruhngs of the courts upon this 
 subject, it will be observed that they have been guided by 
 no very exact rule. In the main there is good and sufficient 
 reason for their acceptance or rejection of a fact claimed 
 to be judicially cognizable. But instances will be found 
 where certain facts have been so recognized On account of 
 their notoriety, which, if they were taken as the standard, 
 would carry with them some of the others which are 
 ignored. So, too, are there instances, where others are re- 
 jected for reasons that would apply equally well to many 
 which are generally accepted as worthy of judicial notice. 
 This diversity of opinion in particular cases only partially 
 
 1 Market Bank v. Pacific Bank, 27 Hun, 465. 
 2Kermottt>. Ayer, 11 IVlich., 181. 
 3 Pearson v. Dan-ington, 33 Ala., 227. 
 ■t Beach v. Workman, 20 N. H., 379. 
 
 5 Baltimore v. The State, 15 Md., 376. 
 
 6 Stephenson v. The State, 28 Ind., 273. 
 
 7 Illinois Cent. R. Co. v. Johnson, 40 111., 35. 
 
 8 Johnson V. Robertson, 31 Md., 476. 
 
 9 Lake v. Calhoun County, 52 Ala., 115. 
 
 10 Brown v. Piper, 91 U. S., 37.
 
 FACTS OF WHICH COURTS TAKE JUDICIAL NOTICE. 731 
 
 illustrates the difficulty of expressing the general doctrine 
 in anything like a rule that could be uniformly applied. Tlio 
 knowledge possessed by the presiding judge cannot furnish 
 an invariable guide, either in noticing or refusing to notice 
 a fact. Certainly disputed facts of science should not be 
 judicially taken notice of, however well convinced the judge 
 might be upon the question of their truth.
 
 INDEX. 
 
 ABANDONJIENT, Section 
 defeats notice by possession 29G 
 
 ABSENCE OF FUNDS, 
 
 held to excuse want of notice of dishonor of commercial 
 
 paper 1001 
 
 held not to excuse want of notice of dishonor of commer- 
 cial paper 1002-1014 
 
 ACCEPTANCE, 
 
 of, proposals, notice of 378-385 
 
 contiiming and limited offers 378 
 
 necessity of notice 379 
 
 time 380 
 
 offer by auctioneer 381 
 
 by maU 383 
 
 continuing until accepted, or rejected, or withdrawn . . 385 
 
 of guaranty, notice of 390-408 
 
 See Guaranty. 
 of rent by unauthorized person, waiver of notice to quit 
 
 not presumed from 649 
 
 of suiTender of possession, waiver of notice to quit . . . 643 
 
 ACCEPTOR OF BILL, 
 
 notice of dishonor given by 710,711 
 
 bankruptcy of, no excuse for failure to give notice ... 771 
 
 ACCOIiOIODATION PAPER, 
 
 notice of diversion of 945 
 
 renewal of by partner, held such prior transaction as to 
 
 entitle payee to notice of dissolution 511 
 
 when drawer of, not entitled to notice of dishonor . . 997, 998 
 when drawer of, entitled to notice of dishonor . . . 999, 1018 
 
 ACCOUNT, 
 
 assignment of balance due on, notice required .... 443 
 notice should be given of intention to examine .... 1207 
 
 ACCURACY OF DESCRIPTION, 
 
 substantial and not teclinical, required in notice to quit 638, 639 
 same in notice of motion 1193
 
 V3i INDEX. 
 
 ACKNOWLEDGMENT, Section 
 
 of deeds 113 
 
 necessity of 125-140 
 
 of service of notice, of taking depositions, effect of . 1251, 1254 
 
 ACQUIESCENCE, 
 
 of principal after notice, releases agent 669 
 
 ACTUAL KNOWLEDGE, 
 
 of prior rights, most direct manner of binding purchasers . 65 
 
 question of fact for tlie jury 85, 86, 88, 91 
 
 may be imputed to purchaser who avoids knowledge . . 91 
 
 ACTUAL NOTICE, 
 
 conflict of authority as to what is 1 
 
 causes of apparent conflict, definitions of 3 
 
 distinction between and knowledge 3, 4 
 
 different kinds of 5 
 
 exi^ress 5-7 
 
 direct infoi-mation 7 
 
 different sources of 28, 29 
 
 must be more than vague statement 29 
 
 implied 8-27 
 
 distinction between and express 8 
 
 distinction between and consti'uctive 8, 36a 
 
 will bind purchaser, who has not certain knowledge . 9 
 
 from circumstances sufficient to put upon inquuy . 10, 13-25 
 
 when purchaser affected by 11 
 
 amounts to imputation of knowledge 11, 13 
 
 neghgence for piu-chaser not to inquire 17 
 
 from secrecy of transaction 26 
 
 from voluntary ignorance 11 
 
 seeing copy of deed 12 
 
 recitals in muniments of title 15-17 
 
 possession under claim of title 16 
 
 held insufficient 14 
 
 knowledge of non-payment of i^urchase price .... 19 
 legal title and equitable interest in different persons . 18 
 discharge of mortgage by one other than mortgagee . 20 
 notice of trust affecting property pm'chased .... 21 
 
 insolvency of vendor, acting as trustee 22 
 
 inadequacy of price . . 23, 24 
 
 relationsliip beween grantor and grantee .... 25 
 
 from information sufficient to put upon inquuy . . .28, 29 
 
 degree of certainty required 30 
 
 to agent, is actual notice to principal 31-33, 673a 
 
 amounts to more than constructive notice to principal . 33
 
 INDEX. 735 
 
 ACTUAL ^OTiCE — Continued. Section 
 
 necessary to affect purchasers of negotiable paper . . . 80-94 
 payment of lost bill stopped by advertisement, insufficient 81 
 bolder of bill fraudulently circulated only affected when 
 
 gi'ossly negligent 82 
 
 negligence and bad faith, questions of fact 83 
 
 purchaser protected, rule laid down by Story .... 84 
 held same as knowledge, but knowledge a question of fact 85 
 facts which excite inquiry, held inadmissible in evidence 86 
 purchaser boiind to inquire, when facts excite inquiry . 87 
 circumstances sufficient to put a prudent man upon in- 
 quiry, insufficient 87 
 
 bad faith on part of purchaser, inference of fact and not 
 
 of law 88, note 1 
 
 stolen securities — avoidance of knowledge 89 
 
 inquiry excited by inspection of paper, sufficient ... 90 
 
 general or implied notice held sufficient 91 
 
 circumstances must be of suspicious character .... 92 
 only purchasers who have paid value protected ... 93 
 
 defects apparent on face of instrument 94 
 
 of viiu-egistered instruments, 
 
 See Unregistered Instruments. 
 to purchasers, evidenced by possession of property . . 275-277 
 See Possession. 
 
 notice from title papers, equivalent to 308 
 
 See Title Papers. 
 of assignment of choses in action, inferred from circum- 
 stances 438, 439 
 
 See Assignment. 
 dissolution of partnership, when new customer entitled to . 522 
 may be inferred from facts sufficient to put upon inquuy . 507 
 See Dissolution of Partnership. 
 
 ACTUAL POSSESSION, 
 
 when requisite to constitute notice of claim of title . . 286, 288 
 
 ADDRESS, 
 
 of notice of dishonor of commercial paper 767 
 
 may be to residence or place of business 890, 891 
 
 of written notice to quit, what sufficient 630 
 
 ADJOURNMENT, 
 
 of judicial sale without new publication 1092 
 
 of taking depositions, notice after expiration of hour origi- 
 naUy fixed . . . ^ 1256 
 
 ADMINISTRATOR, 
 
 joint, when cannot waive notice of dishonor 763
 
 73 G INDEX. 
 
 ADMISSION, Section 
 
 ■when it will amount to waiver of notice .... 1328, 1400 
 of drawer or indorser, when will not excuse notice . . 964, 968 
 
 ADVERSE POSSESSION, 
 
 notice of by occupation of premises 280, note 
 
 ADVERTISEMENT, 
 
 of dissolution of partnersliip 504r-508, 513-519 
 
 will only affect customer when seen by Mm 504 
 
 circulation of the paper where customer does business not 
 
 sufficient to charge him 505 
 
 reading papers not conclusive 506 
 
 inference drawn from publication of 507 
 
 what are prior dealings — who is old customer . . . 508-512 
 
 will affect new customer 513 
 
 time of publication of . 514 
 
 publication of in newspaper 515 
 
 where should be published 516 
 
 selection of medium of publication 517 
 
 manner of pubUcation of, open to inquiry 518 
 
 English and American docti'ine, publication held not ab- 
 solutely essential 519 
 
 of original process 1029-1085 
 
 See Process, Original. 
 
 of judicial sales 1086-1104 
 
 See Judicial Sales. 
 
 of non-judicial involuntary sales 1105-1121 
 
 See Non-judicial Involuntary Sales. 
 
 AFFIDAVIT, 
 
 necessary for publication of notice 1033-1048 
 
 See Process, Original. 
 for publication of process, averments in not conclusive . . 1083 
 
 AGENCY, 
 
 Notice of 651-671, 671a 
 
 principal's liability when agent exceeds authority . . . 651 
 
 secret instruction will not limit general authority . . . 653 
 
 limited by written authority 653 
 
 by representations of agent, bind principal 654 
 
 to affect party dealing with agent, must be prior to trans- 
 action 655 
 
 principal bound by agent's acts in excess of authority by 
 
 letter of attorney 656 
 
 by contents of letter of attorney 657 
 
 public and private restriction of authority 658 
 
 agent's authority limited by law 659
 
 INDEX. 737 
 
 AGENCY — Continued. Section 
 
 when parties bound to inquire into extent of agent's 
 
 authority 660-6(52 
 
 distinction between agency, general and special . . . 66:5 
 
 transactions requii'ing scrutiny of agent's authority . • 664 
 
 avoidance of knowledge of limitation of agent's authority 665 
 
 to negotiate bills and notes 666 
 
 effect of subsequent ratification with notice .... 667 
 
 binds principal 668 
 
 silent acquiescence releases agent 669 
 
 contracts in name of agent binding 670 
 
 principal bound, though concealed or revoked — husband 
 
 and wife 671 
 
 must extend to duty undertaken to bind principal . . . 620 
 
 AGENT, 
 
 acts of, governed by notice to principal 551 
 
 Notice to 31-33,672-695 
 
 governed by the rules applicable to actual notice . . . 31-33 
 
 is notice to principal 480Z, 672 
 
 general application of the rule 673 
 
 when actual notice required 673a 
 
 effect of, depends on nature of agency 674 
 
 executive officer of a bank 675 
 
 sufficient to put principal on inquiry — trustees . 676, note 2 
 
 agent's unlawful acts, principal charged with notice of . 677 
 
 bind principal to those misled by principal's acts . . 678 
 
 when husband of the principal 679 
 
 confined to transactions in wliich he is active . . . 680 
 
 to one of several, sufficient 681 
 
 when one of the directors of a bank 682 
 
 corporation not affected with every fact known to 683, 683a 
 joint piirchasers do not sustain relation of principal and 
 
 agent 684 
 
 is the same kind of notice to principal 685 
 
 of agent, insufficient 686 
 
 place, manner and time of acquiring knowledge . . . 687 
 
 whether knowledge present to the mind of agent at the 
 
 time, the controlling circumstance 688 
 
 when not necessary to be acquired during agency . . 689 
 
 agent's duty to communicate to principal 690 
 
 where authority depends upon ratification 691 
 
 when attorney, and cannot be disclosed without breach 
 
 of confidence 692 
 
 executor and administrator 693 
 
 to trustee before creation of trust 694 
 
 47
 
 738 INDEX. 
 
 AGENT — Continued. Section 
 
 of torts of other agents and servants 695 
 
 of dissolution of partnership 502 
 
 of dishonor of commercial paper 743-750, 754 
 
 See Biixs and Notes. 
 Notice of dishonor of, to whom given. 
 
 time of giving 817 
 
 Notice by 696-701 
 
 has the same force as when given by principal .... 6G6 
 
 of dishonor of commercial paper 697 
 
 when resident in same place as party notified .... 913 
 See Bills and Notes. 
 Notice of dishonor of, by whom given. 
 
 to quit 698 
 
 written or verbal 699 
 
 effect of subsequent ratification 700 
 
 valid only from time of 701 
 
 of stoppage in transitu 480 
 
 service of original process on 1303-1810 
 
 See Service. 
 AGREEMENT, 
 
 to mortgage is recordable Ill 
 
 what implied between landlord and tenant 587 
 
 ALIMONY, 
 
 action for, lis pendens 352 
 
 divorce and, actions for, service of process by publication . 1083 
 
 will not authorize personal judgment 1142 
 
 ALTERATION, 
 
 of notice, after service 1253 
 
 of signs, amounts to notice of dissolution of partnership . 503 
 
 AMBIGUITIES, 
 
 in notice of dishonor, not fatal 840 
 
 AMENDMENT, 
 
 of pleading, not allowed after publication of process . . 1050 
 
 of return, when allowed 1381 
 
 AMERICAN, 
 
 registry acts, objects of 96 
 
 rule as to notice limiting carrier's liability 541, 553 
 
 AMOUNT, 
 
 of guaranty uncertain 396, 400, 419 
 
 definiteness of 398 
 
 of tax due, should be stated in advertisement 1009 
 
 ANIMALS, 
 
 dangerous, owners of affected by notice 480t
 
 IXDEX. io\) 
 
 APPEAL, Section 
 
 Notice of 1208-1230 
 
 not always required 1208 
 
 written and served upon attorney 1209 
 
 in criminal cases 1210 
 
 from suits before justices of the peace 1211 
 
 when notice serves as an assignment of errors .... 1213 
 
 grounds of appeal to be stated in 1213 
 
 assent to judgment required in 1214 
 
 served on same day as filed — California 1215 
 
 must be given in time 1216 
 
 personal service of, not required 1217 
 
 to be given to co-parties 1218 
 
 does not depend upon conflict of interest 1219 
 
 waived by appearance 1220 
 
 motion to dismiss, special notice of, not required .... 1191 
 
 APPEARANCE, 
 
 waives original process 1161 (note 2), 1358 
 
 notice to take depositions, when 1253 
 
 notice of motion 1203 
 
 notice of appeal 1220 
 
 special does not amount to waiver 1358 
 
 ARRIVAL, 
 
 of goods, and demand by consignee, ends transit .... 461 
 
 notice of, given by carriers 562-577 
 
 will terminate liability as carriers 563 
 
 reasonable time for removal after 564 
 
 classification of conflicting authorities 565 
 
 in Massachusetts, Illinois, Iowa, held unnecessary . . . 566 
 
 modification of the rule in Massachusetts 567 
 
 New Jersey and Vermont, reasonable time to remove . 568 
 
 additional authorities, to same point 569 
 
 New York, Michigan, Texas and New Hampshire, required 570 
 
 required of carriers by water 571- 
 
 comparison of conflicting views 573 
 
 rule requiring notice 573 
 
 difference in local customs 574 
 
 rule affected by custom 575 
 
 waiver and excuse of 576 
 
 what is reasonable time for removal 577 
 
 ARTS, 
 
 facts connected with the, judicially noticed 1417 
 
 ASSENT, 
 
 to judgment required in notice of appeal 1214 
 
 to be binding, must be voluntary, and with notice of nile 
 limiting liability of can-iers 555-557
 
 740 INDEX. 
 
 ASSESSIMENT, Section 
 
 special, advertisement of notice of sale for 1124 
 
 of damages to property, requires notice to owner . , . 1139 
 
 ASSIGNEE, 
 
 of mortgage regarded as purchaser 263 
 
 in bankruptcy, notice to, of dishonor of bill or note . . 769, 770 
 
 notice of dishonor by 725 
 
 of chose in a<;tion takes, subject to equities ; 431 
 
 ASSIGNMENT, 
 
 deed of, when recordable 115 
 
 of lease 116 
 
 of mortgage 117 
 
 for benefit of creditors, not recordable 120 
 
 of ehoses in action, notice of 428-450 
 
 definition of ehoses in action 428 
 
 not assignable at common law 429 
 
 assignment transfers claim 430 
 
 assignee takes, subject to equities 431 
 
 effect of, to debtor 432 
 
 assignment incomplete without 438 
 
 the EngUsh rule 433, 436 
 
 held necessary as against creditors 434 
 
 objects of 435 
 
 assignee has no greater right than his assignor had . . 436 
 
 by whom given 437 
 
 presumed from circumstances 438 
 
 after notice of fraudulent issue to assignor will not affect 
 
 rights of parties 439 
 
 double purpose of 440 
 
 oral or written 437 
 
 of over-due negotiable bills and notes, requires notice . . 441 
 
 negotiable paper, unindorsed require 442 
 
 balance due on account 443 
 
 policies of insurance 444 
 
 notice to insurer 445 
 
 conditions of policy 446 
 
 of subject of insurance 447 
 
 by retiring partners 448 
 
 notice of, may be implied 449 
 
 after loss 450 
 
 for benefit of creditors, of maker of note, will not excuse 
 
 notice of dishonor 949 
 
 of errors, notice of appeal serves aa 1212 
 
 ASSUMPSIT, 
 
 when m action of, notice to produce books and papers un- 
 necessary 1364
 
 INDEX. 741 
 
 ATTACHMENT, Section 
 
 grounds of, stated in affidavit for order of publication 1226-1237 
 
 See Process, Original. 
 of funds in hands of drawee, no excuse for failure of notice 
 of dishonor 1027 
 
 ATTORNEY, 
 
 service of notice of trial on 1172 
 
 return of service upon, what sufficient 1248 
 
 service of notice on, in matters of practice .... 1321-1323 
 
 in suits before justice of the peace 1322 
 
 should not be where his connection with case has ceased 1323 
 AUCTIONEER, 
 
 acceptance of proposal by, notice of 8&1 
 
 AVERJIENTS, 
 
 in pleading, necessary to obtain order of publication 1049-50, 1057 
 of notice ia pleading, when, and when not, necessary 138&-1406 
 See Pleading. 
 AVOIDANCE, 
 
 of knowledge, notice may be inferred from 89 
 
 BAILEES, 
 
 notice to, of delivery of thing bailed 452-456 
 
 See Carreers and Other Bailees. 
 
 of vendor's right of stoppage in transitu 457-480 
 
 See Stoppage in Transitu. 
 BAILIFF, 
 
 or servant of landlord, not entitled to notice to quit . . . 595 
 
 BANKING CORPORATION, 
 
 notified through its executive officer 675 
 
 notice to directors of, will bind when, 682, 683 
 
 BANKRUPTCY, 
 
 of holder, by whom notice of dishonor may be given . 725, 726 
 of drawer or indorser, to whom notice may be given . 769-772 
 of acceptor, no excuse for failure to give notice of dishonor 771 
 dissolution of partnership by 497 
 
 BILL OF LADING, 
 
 effect of assignment of, upon consignors' rights .... 472 
 when notice limiting carriers' liability printed on, insuffi- 
 cient 548 
 
 BILLS AND NOTES, 
 
 negotiable, purchasers of, how affected with notice . . . 80-94 
 See Purchasers. 
 
 Notice of dishonor of 702-1028 
 
 By whom may be given . 702-728 
 
 generally by holder 703
 
 742 
 
 INDEX. 
 
 BILLS AND NOTES — Cojt^mtted. . Section 
 
 by any party to the instrument 703 
 
 criticism of authorities by Judge Story 704 
 
 party discliarged becomes stranger to bill .... 705 
 
 party not notified, not immediately discharged . . . 706 
 time must have elapsed within which should have 
 
 been notified 706 
 
 by any party, entitled to reimbursement on paying 707, 709 
 
 given by party before received 708 
 
 cannot be waived by party once discharged, so as to 
 
 render his notice valid 708 
 
 by acceptor 710 
 
 by acceptor, supra protest 711 
 
 by drawer of bill 713 
 
 by maker of note 713 
 
 by an agent . . : 714 
 
 for collection, or by notary 715 
 
 when by holder, need not be owner 716 
 
 by successive agents to each other 717 
 
 will not be affected by signing wrong name . . . 718 
 
 must have authority from party whose name is used 719 
 
 authority inipUed 720 
 
 by one holding as security 721 
 
 ratification by holder of act of stranger 732 
 
 by one without knowledge when given 733 
 
 by executor or administrator 724 
 
 by assignee in bankruptcy 735 
 
 when by bankrupt 736 
 
 by guardian or ward 737 
 
 by married woman 728 
 
 To ivhom given 739-775 
 
 to drawers and indorsers — reason for rule 739 
 
 drawer of bill 730 
 
 should not be waived by agent 731 
 
 when not entitled to notice 732 
 
 drawn upon partnership by member of firm . . 733 
 
 to indorser 734 
 
 need not be indorser for value 735 
 
 to any antecedent party 736 
 
 may be of partial dishonor 737 
 
 to indorsers of over-due paper 738 
 
 the same reasons apply as in case of dishonor of paper 
 
 indorsed before maturity 739 
 
 indorser who re-issues dishonored paper not entitled to . 740 
 
 purchase at indorser's request, notice unnecessary . . 741 
 
 transferrer by deUvery not entitled to 742
 
 INDEX. 743 
 
 BILLS AND NOTES — Continued. Section 
 
 to agent 743 
 
 authority of, to receive, what sufficient 744 
 
 may be imphed 745 
 
 question of fact 746 
 
 when inferred from nature of general authority . . 747 
 appointed prior to war, may be notified after hostilities 
 
 commenced 748 
 
 authority to receive, what lield insufficient .... 749 
 
 not implied from autliority to indorse 750 
 
 to partners 751 
 
 indorsement during partnership 752 
 
 after dissolution 753 
 
 to agent of one of the partners 754 
 
 to surviving partner 755 
 
 exception to the rule of, binding both by serving one 756 
 
 to joint indorsers, not pai'tners, not by service on one . 757 
 
 agency not implied from joint indoi-sement . . . 758 
 
 consequences of failure to notify both 759 
 
 assumption of authority by one, binds himself . . 760 
 
 admission of proper notice by one of two .... 761 
 
 joint administrators cannot tie then* hands .... 762 
 
 to personal representatives 763 
 
 how addressed to and served 764-768 
 
 in case of bankruptcy, part}' liable 769 
 
 before selection of assignee 770 
 
 no excuse for failure of notice 771 
 
 after assignment, might be to bankrapt 772 
 
 to infant party 773 
 
 to maiTied woman 774 
 
 to insane drawer or indorser 775 
 
 time of giving 776-827 
 
 importance of question of 776 
 
 rules of, settled by repeated decisions 777 
 
 division of subject 778 
 
 must be subsequent to dishonor 779 
 
 effect of payment on day of dishonor 780 
 
 may be on last day of grace 781 
 
 note dishonored on last day of grace when payment 
 
 refused 782 
 
 by failure to pay on presentment 783 
 
 by failure and qualified refusal 784 
 
 to resident of same place as holder 785 
 
 time of delivery and not of sending 786 
 
 at place of business or residence 7817 
 
 hours at place of business 78b
 
 74:4 INDEX. 
 
 BILLS AND 'NOTES — Continued. Section 
 
 hours at place of residence 789 
 
 nine o'clock, p, M 790 
 
 when left on day of dishonor 791 
 
 to parties resident in different place from holder . . . 792 
 
 by mail, time of depositmg letter 793 
 
 general construction of " reasonable time " .... 794 
 
 each party has his " day " 795 
 
 not required to neglect other business to give . . . 796 
 
 the "day " of one party not for the benefit of another 797 
 
 consequence of numerous parties taking one day , 798 
 
 time not always measured by number of indorsers . 799 
 
 difficulties in applying the rule 800 
 
 Chitty's doctrine as to " next day," by first mail . . 801 
 
 twenty-four-hour rule of Judge Story 802 
 
 impracticabiUty of Chitty's rule 803 
 
 inconvenience of twenty-four-hour nile .... 804 
 
 judicial interpretation of " next day " 805 
 
 what is unreasonably early horn* depends upon local 
 
 custom 806 
 
 the hour of closing the mail 807 
 
 five o'clock held too early 808 
 
 seven o'clock held too early 809 
 
 six o'clock the hour of closing 810 
 
 ten minutes past nine o'clock 811 
 
 might be earlier than nine 812 
 
 half -past nine held too early 813 
 
 construction of rule by Chief Justice Marshall . 814 
 
 not necessarily by first mail of next day .... 815 
 where no mail on next day deposited in time for nenct 
 
 mail 816 
 
 agents or attorneys have their day 817 
 
 must be secvilar day 818 
 
 Jewish festival 819 
 
 Sunday 820 
 
 time referred to hour of maiUng 821 
 
 governed by law of place of contract 822 
 
 consequences of adopting unusual modes 823 
 
 general rule one of enlargement rather than of restriction 824 
 
 waiver and excuse 825 
 
 deductions from authorities cited 826 
 
 no exceptions to rule requiring notice in reasonable time 827 
 
 ' Manner and mode of giving 828-929 
 
 division of subject 828 
 
 where and how siifficiently served, if duly received . . 829 
 
 by post to residents of same place 830
 
 INDEX. 745 
 
 BILLS AND NOTES- Continued. Section 
 
 whether written or oral 831 
 
 verbal notice delivered to wife 832 
 
 should be wTitten to distant parties 833 
 
 form and contents 834 
 
 no form prescribed 835 
 
 immaterial omissions 836 
 
 date of maturity 837 
 
 name of payee 838 
 
 clerical errors 839 
 
 mere ambiguities 840 
 
 must show presentment on business day 841 
 
 signed by one having authority 842 
 
 where, and ho^v served 843 
 
 parties residing in same place 844 
 
 in dorser temporarily absent from home 845 
 
 wnat constitutes a place of business 846 
 
 personally upon resident of same place, when place of 
 
 residence knouii 847 
 
 by post on resident of same placo, delivery must be 
 
 proved 848 
 
 different meanings of the word "town" .... 849 
 by post, between residents of different villages in 
 
 same town 850 
 
 leaving at residence or place of business .... 851 
 
 residence in one place, business in another .... 852 
 "place of business" and "residence," and what 
 
 amounts to leaving at either 853 
 
 residence 854 
 
 need not be domicile 855 
 
 leaving notice at 856 
 
 boarding-house 857 
 
 at counting house, with pretended agent . . . 858 
 
 will not sufiELce to leave near the place 859, 860 
 
 corresponding numbers not sufficient to identify place 861 
 
 several places of business, either will suffice .... 862 
 
 holder may elect between place of business and residence 863 
 
 may be left, when no one there to receive it .... 864 
 
 must be the proprietor of place of business 865 
 
 office of du-ectors of corporation 866, 867 
 
 difference in time, at residence or place of business . . 868 
 
 by mail between residents of the same place .... 869 
 
 letter carriers 870 
 
 drop-letters required to be stamped 871 
 
 penny post 873 
 
 in Baltimore, and other large cities 878
 
 746 INDEX. 
 
 BILLS AND l!iOTES — Continued. Sectiok 
 
 established custom of bank 874 
 
 when authorized by indorser 875 
 
 by mail to parties residing near place of dishonor , . 876, 877 
 partners — one residing in, and one near, place of dis- 
 honor 878 
 
 cases requiring personal notice to indorser residing in 
 
 neighborliood 879 
 
 residing thi-ee miles distant 880 
 
 personal, where party resides at great distance from 
 
 any postoffice 881 
 
 parties residing near different post towns . . . 882 
 
 office to which indorser visually resorts .... 883 
 
 general adoption of service by mail 884 
 
 exceptional case 885 
 
 necessity of a rule 886 
 
 by male to different places in same town 887 
 
 general direction to town postoffice, prima facie sufficient 888 
 
 private messenger 889 
 
 addressed to residence or place of business when known . 890 
 
 must be addressed to place of residence 89 1 
 
 may be notified at pretended place of residence . . . 893 
 
 exception to cases where mail most convenient mode. . 893 
 
 when holder may choose between places 894-896 
 
 cases governed by question of distance 897 
 
 criticism of, and true rule laid down 898 
 
 by mail 899-929 
 
 to principal office of parish 899 
 
 to county seat 900 
 
 to principal office of town 901 
 
 inquu-y should be made for residence 902, 903 
 
 sufficiency of, question for jury 904 
 
 to transient indorser, may be at temporary residence . 905 
 
 but not when he has a permanent place of abode . . 906 
 
 member of congi'ess, when, and how should be served . 907 
 
 when sufficient, if sent to last known residence . . . 908 
 
 diligent inquuy for unknown residence 909 
 
 inclosing notices to all, in letter to last indorser . . . 910 
 
 transitory place of business 911 
 
 through non-resident agent, between residents of same 
 
 place 912 
 
 from resident agent, of non-resident holder . . . . 913 
 through successive indorsers between parties residing in 
 
 same place 914 
 
 sending, without inquuy, to place of payment, insuffi- 
 cient 915
 
 INDEX. Y47 
 
 BILLS AND ^OTES— Continued. Sectiox 
 
 information sufficient to put upon inquiry .... 916 
 
 inquiry, suffi^cient and insufficient 917-921 
 
 to certain place on the strength of previously acquired 
 
 knowledge 922, 923 
 
 address by surname alone, insufficient 924 
 
 delay chargeable to indorser . . • 925 
 
 holder misled by place of date 926 
 
 address, should include name of state 927 
 
 to place designated by mdorser 928 
 
 delay from sending by usual route 929 
 
 Waiver and excuse of 930-1028 
 
 general character of waiver 930 
 
 division of subject 931 
 
 waiver may be antecedent or subsequent 933 
 
 antecedent waiver in writing 933 
 
 effect of " protest waived " 934 
 
 " I vraive demand of protest " 935 
 
 maybe embodied in the insti'ument — will not excuse 
 
 presentment 936 
 
 no special form required 937 
 
 by letter 938 
 
 may be verbal 939 
 
 established by circumstances 940 
 
 by promise to the maker to pay 941 
 
 when promise supported by consideration .... 942 
 
 indemnity taken does not always waive . . . . 943 
 reservation of title to real estate, for which note 
 
 given 944 
 
 when dejiends upon sufficiency of indemnity . . . . 945 
 
 indemnity taken by mdorser is for liis own security . 94G, 947 
 
 indorser with funds of maker does not become principal . 948 
 
 assignment to trustee will not excuse 949 
 
 taking mortgage of 'all makers' property held no waiver 950 
 indemnity ^taken furnishes stronger reason for notice . 951, 952 
 
 indorsement of renewal note, not accepted, no waiver . 953 
 
 request no waiver when not acceded to 954 
 
 by fii'st indorser does not bind subsequent .... 955 
 
 subsequent promise, effect of, conflicting views as to . 956 
 
 conditions of 957 
 
 when made without knowledge, no waiver . . . 958 
 
 express and imphed 959 
 
 implied 960 
 
 promise to see it paid held sufficient .... 961 
 
 recitals in contract of party acknowledging bill . 962 
 
 must be unequivocal 963
 
 748 INDEX. 
 
 BILLS AND NOTES — Con h'nrtecZ. Section 
 
 admissions to stnrangers do not amount to . . . 964 
 
 anxiety to have bill paid, no waiver 965 
 
 held evidence of priox* notice 966 
 
 held no evidence of notice, but might waive . . . 967 
 
 even written admission not conclusive 968 
 
 either waiver or admission 969 
 
 onus probandi 970, 973 
 
 prima facie evidence of diligence 971 
 
 of knowledge of laches 972 
 
 principles governing the question 974 
 
 knowledge of facts, and not their legal effect, neces- 
 sary to bind subsequent promisor 975 
 
 excuses of a general nature enumerated 976 
 
 inevitable accident 978 
 
 prevalence of malignant fever 979 
 
 existence of war 980 
 
 interdiction of commerce 981 
 
 actual hostilities 982 
 
 late war 983 
 
 interruption of postal comnmnication 984 
 
 existence of war, where note payable 985 
 
 if intercourse legal, no excuse 986 
 
 loss of note by, no excuse 987 
 
 when obstruction removed, party entitled to . . 988, 993 
 
 party not required to violate law of his domicile . . 989 
 
 failure to find after dUigent inquiry 990 
 
 facts excusing presentment will not always excuse fail- 
 ure of notice 991 
 
 death of holder 993 
 
 sudden sickness, and death of agent 994, 995 
 
 excuses of a special character, enumerated 977 
 
 special excuses — treated as waiver 996 
 
 bUl drawn for benefit of drawer 997 
 
 accommodation note or bUl 998, 999 
 
 mere understanding between drawer and drawee, that 
 
 former shall pay, will not excuse 1000 
 
 no funds in hands of di'awee, when wiU excuse . 1001, 1009 
 
 appHcation of the rule confined 1002 
 
 drawer has no right to anticipate payment .... 1004 
 
 bUl drawn against goods in transit 1005 
 
 amount in hands of drawee grossly inadequate . . . 1006 
 where drawer has been informed that draft would not 
 
 be paid 1007 
 
 where drawer indebted, but amount not yet due . . 1008 
 
 expectation of payment must continue to maturity . 1009
 
 INDEX. 74:9 
 
 BILLS AND ^OTES — Continued. Section 
 
 payment need not be anticipated from drawee . . . lOlO 
 
 may be anticipated from drawee's promise .... 1011 
 
 when drawee has already honored drafts .... 1012 
 
 running account between parties 1013 
 
 suspecting absence of funds, no excuse 1014 
 
 drawer being in debt to cb*awee, no excuse . . . . 1015 
 
 no expectation of funds at the place, no excuse . . . 1016 
 want of funds will not excuse failure to notify in- 
 
 dorser 1017 
 
 though he be accommodation indorser 1018 
 
 otherwise where indorsement is made with notice of 
 
 facts sufficient to excuse 1019 
 
 former partnership between drawer and drawee, no 
 
 excuse 1020 
 
 partner drawing upon his firm not entitled to notice . 1021 
 that goods purchased are for use of firm, will not ex- 
 cuse notice of dishonor of note, given for .... 1022 
 fraud practiced by indorser, will excuse failure of notice 1023 
 
 motives for indorsement immaterial 1024 
 
 adding the word " surety," will not excuse .... 1025 
 
 presence of indorser at refusal, will not excuse . . . 1026 
 
 attachment of funds in hands of drawee, no excuse . 1027 
 
 notice not required of dishonor of void note .... 1028 
 
 BOARDING-HOUSE, 
 
 when place of residence of party to biU, notice may be left at 857 
 
 BONDS, 
 
 negotiable, notice of defenses to, through trustees, . 676, note 2 
 
 notice to produce, in actions on, unnecessary 1265 
 
 motion for judgment on, notice of 1197 
 
 BOOKS, 
 
 and records constituting link in chain of title, notice from . 326 
 
 BOOKS AND PAPERS, 
 
 notice to produce, to be offered in evidence . . . 1257-1292 
 
 general remarks 1257 
 
 necessary to the admission of secondary evidence . . . 1258 
 
 demand before suit brought, not sufficient 1259 
 
 necessary when papei-s recorded 1260 
 
 rule same in criminal prosecution 1261 
 
 exceptions 1262 
 
 in action of trover, unnecessary 1263 
 
 in assumpsit, unnecessary 1264 
 
 debt on bond, unnecessary 1265 
 
 action of covenant, unnecessary ....... 1266
 
 750 INDEX. 
 
 BOOKS AND TAPERS — Continued. Section 
 
 against constable for making return, unnecessary . . 1367 
 
 papers filed or mentioned in pleadings 1268 
 
 pajiers in court 1269 
 
 paper must be traced to opposite party 1270 
 
 proof of possession from circumstances 1271 
 
 papers under control of adversary 1272 
 
 privity of party notified, with party in possession, 
 
 must be proven 1273 
 
 property passed out of party's possession .... 1274 
 
 party failing to produce may impeach copy 1275 
 
 not by introduction of original 1276 
 
 secondary evidence, where possession of paper disclaimed 1277 
 production is not an admission of genuineness of signa- 
 ture 1278 
 
 original need not be offered after production .... 1279 
 
 inference drawn from failure to produce 1280 
 
 notice to produce notice, unnecessary 1281 
 
 contents of notice 1282 
 
 should not be too general 1283 
 
 general, required to be in writing 1284 
 
 renewal unnecessary in case of continuance .... 1285 
 
 time of notice to produce 1286 
 
 served at trial — too late 1287 
 
 party notified not required to incur expense .... 1287 
 
 original not in existence, time of service immaterial . 1289 
 
 may be served upon opposite attorney, when .... 1290 
 
 may be served upon either of several joint parties . . 1291 
 
 personal service not indispensable 1292 
 
 BRIDGES, 
 
 notice to repair 4800^ 
 
 See Highways. 
 BUSINESS, 
 
 place of leaving notice of dishonor, ^ 
 
 See Bills and Notes. 
 CARRIERS, 
 
 Notice by, limiting their liability 531-577 
 
 division of subject. 1. Restricting their liability as in- 
 surers. 2. Terminating their liability as carriers . . 531 
 when their liabiUty to consignor has its inception . . . 532 
 upon delivery of goods for transportation — i-ule not af- 
 fected by public notice 533 
 
 nature of common law hability 534 
 
 different methods of giving 535 
 
 state of the law in England 536
 
 INDEX. 751 
 
 CAKRIERS— Continued. Section 
 
 where notice held sufficient, must be brouglit home to 
 
 consignor 537 
 
 posting insufficient, unless notice read 538-540 
 
 American rule — must be clear and explicit 541 
 
 value requu-ed to be stated, to fix cost of can-iage . . 542 
 
 printed on railroad ticket 543 
 
 must be seen and understood 544-546, 548 
 
 to whom given — agent or servant 547 
 
 must be seen and assented to when printed on bill of 
 
 lading 548 
 
 when several conflicting, bound by least favorable to one 
 
 giving 549, 550 
 
 to owner, will affect transactions by agent to whom not 
 
 communicated 551 
 
 general doctiine in America, cannot be limited by . . 553 
 
 may be by contract 553 
 
 notice and assent amounts to 554 
 
 assent must be voluntary 555-557 
 
 will not exempt from liability for negligence . . . 558-561 
 
 even where assent raises a contract 558 
 
 notice of an-ival 562-577 
 
 actual — opportunity to remove goods 577a 
 
 See Arrival. 
 of letters, when notice of dishonor delivered by . . 870 
 
 CAREIERS AND OTHER BAILEES, 
 
 Notice to 451-480 
 
 division of subject 451 
 
 of delivery of goods for carriage 452 
 
 in what cases required when goods deposited at public 
 
 wharf 453 
 
 will only bind carrier when he consents to receive them 454 
 when so delivered pursuant to previous understand- 
 ing 455 
 
 not necessary when delivered on carrier's private wharf 456 
 stopping in transitu 457-480 
 
 See Stoppage in Transitu. 
 
 of facts requiring extraordinary care 480a 
 
 of loss by shippers 480& 
 
 CERTAINTY, 
 
 as to facts communicated, sufficient if may be rendered cer- 
 tain by inquiry 30 
 
 of description in mortgage, what sufficient .... 180-185 
 in recitals of title papers, reasonable degree of, required to 
 affect purchasers 816-321
 
 752 INDEX. 
 
 CERTIFICATE, SECTION 
 
 of emancipation not recordable 121 
 
 of official character of officer taking acknowledgment, re- 
 quired 136 
 
 CHAIN OF TITLE, 
 
 instrument must be in some, for record to operate as no- 
 tice 205,206 
 
 effect of missing link 207 
 
 record imparts no notice of relations between parties . 208 
 
 example of broken 210-212 
 
 sheriff's deed of interest of apparent stranger, is not no- 
 tice 213 
 
 record of conveyance, anterior to grantor's acquisition of 
 title 214-216 
 
 CHANCERY PROCEEDINGS, 
 
 in United States courts, how notice of served 1356 
 
 when of summary nature, party entitled to notice of . . 1140 
 
 CHATTEL MORTGAGE, 
 
 notice of, by registration, and of unregistered- .... 77 
 
 deposit of, in wrong town, will not affect purchasers with 
 notice 194 
 
 effect of registry, as notice, follows property to another 
 state 244 
 
 luurecorded, held good against attaching creditors with no- 
 tice ... 271 
 
 CHATTELS, 
 
 purchasers of, with and without notice of title adverse to 
 
 grantor 67 
 
 innocent pledgee 68 
 
 mere possession not conclusive evidence of title ... 69 
 innocent purchaser from broker unaffected by secret in- 
 structions from principal 70 
 
 secret lien for purchase money ineffectual 71 
 
 conditional sales 72-76 
 
 See Conditional Sales. 
 
 not affected by, including in recorded deed to real estate 336 
 possession of, notice to purchasers of rights of possessor 78, 306 
 
 notice to custodian of their transfer 441 
 
 CHOSES IN ACTION. 
 
 purchaser charged with notice of equities against ... 79 
 
 notice of assignment of 428-450 
 
 See Assignment.
 
 INDEX. T53 
 
 CLERICAL ERRORS. Section 
 
 will not always vitiate notice of dishonor of commercial 
 
 paper 839 
 
 when not misleading, will not vitiate notice of taking depo- 
 sitions 1225 
 
 CLERK, 
 
 of municipality, service on; insufficient 1313 
 
 COmiERCE, 
 
 interdiction of, excuses notice of dishonor of negotiable in- 
 struments 981 
 
 COMMERCIAL PAPER, 
 
 notice of dishonor of. 
 
 See Bills and Notes. 
 COMMON CARRIERS, 
 
 See Carriers. 
 COMPUTATION OF TIME, 
 
 of publication of notice 1070 
 
 of notice to take depositions 1235 
 
 of service 1330, 1331 
 
 CONCEALMENT, 
 
 of agency will not exonerate principal 671 
 
 CONDITIONAL SALES, 
 
 purchasers from conditional vendee charged with notice . 73 
 
 property held in pledge, subject to rights of pledgor . . 73 
 
 condition binding when by parol 74 
 
 property may be unclaimed in an altered state .... 75 
 
 caveat emptor 76 
 
 CONDITIONS, 
 
 of a mortgage insufficiently expressed, registry void . . 179 
 
 of waiver of notice of dishonor of commercial paper , . 957 
 
 of insurance policy, assigned subject to 446 
 
 CONSENT, 
 
 to postponement of taking depositions . . . . ' . . • . 1250 
 
 to shortening the time of taking depositions 1251 
 
 CONGRESS, 
 
 notice of dishonor of bills, how served on member of . . 907 
 CONSIDERATION, 
 
 payment of, necessary to protection of purchaser of nego- 
 tiable instrument before maturity 93 
 
 notice of want or failure of 94a 
 
 want of, does not affect registration of deed .... 122, 123 
 payment of, no protection to purchaser pendente lite . . 347 
 necessary to support assigmnent of bill of lading as against 
 
 creditors 473 
 
 48
 
 T54: INDEX. 
 
 CONSIGNEE, Section 
 
 notice of rights of, adverse to consignors 458-480 
 
 See Stoppage in Transitu. 
 possession by, ends transit 466 
 
 CONSTRUCTIVE NOTICE, 
 
 definitions of .^ 37-39 
 
 held same as implied notice 38 
 
 when prescribed by statute 39 
 
 distinctions between, and actual, express or implied . . 40 
 
 different kinds of 41 
 
 is an inference of law 43 
 
 of contents of writing, to person executing 43 
 
 possession held as 44 
 
 to purchasers pendente lite 45 339 
 
 See Lis Pendens. 
 
 of recitals in title papers 46, 309 
 
 from possession of deeds 47 
 
 CONSTRUCTIVE POSSESSION, 
 
 as notice of claim of title 286, 288 
 
 CONTINUANCE, 
 
 of case does not require renewal of notice to produce . . 1285 
 
 CONTRACT, 
 
 to convey, prior and subsequent, effect of notice .... 55 
 executory, when not entitled to registration .... 122, 123 
 
 notice of, by recital in title papers 329 
 
 actions for specific performance of — Us pendens .... 342a 
 
 completed by notice of acceptance of proposal 378 
 
 can-iers may Umit their common law Mabilities by . . 353-357 
 See Carriers. 
 
 in agent's name may bind principal 670 
 
 ' acknowledging bUl of exchange held waiver of notice . . 952 
 for pubUc improvements, notice by publication .... 1123 
 certain liabilities arising in, fixed by notice .... 480Z-480o 
 
 of indemnity 480Z 
 
 measure of damages affected by notice 480m 
 
 notice of usage or custom • . . 480n, 480o 
 
 CONVEYANCES, 
 
 unregistered, purchasers with notice of 64 
 
 See Unregistered Instruiments. 
 between strangers to title, registry does not affect purchasers 223 
 
 by statute — execution sale 327 
 
 registration of 95-272 
 
 See Registration of Instruments.
 
 INDEX. 755 
 
 CONVICTS, Section 
 service of notice upon 1317 
 
 CORPORATIONS, 
 
 formed by partners, members individually liable .... 488 
 
 notice by, to quit 622 
 
 notice to, to quit 628 
 
 not affected with notice of every fact known to directors 683, 683a 
 
 notice to, through executive officers 683?> 
 
 office of, the place of business of directors 866, 867 
 
 foreign, how served with process 1303-1308 
 
 domestic, how served with process , . . . . . 1309-1311 
 
 See Jurisdiction. 
 municipal, service of notice on 1312, 1313 
 
 COURT, 
 
 when sufficiently designated in notice 1210 
 
 judicial notice of terms of 1414 
 
 COVENANT, 
 
 action of, when notice to produce books and papers unneces- 
 sary 1266 
 
 CREDITOR, 
 
 purchasing at execution sale, charged with notice by prior 
 registry 228-235 
 
 charged with notice of unregistered deed by prior informa- 
 tion 264 
 
 affected witli notice of unregistered chattel mortgage . . 271 
 
 affected with notice by possession 305 
 
 CREDITORS' BILL, 
 
 to operate as lis pendens must be definite in description 303, 342a 
 
 CUSTOMS, 
 
 notice of, that affects party to contract 480o 
 
 of community that control consignee's right to notice of 
 
 arrival of goods 576 
 
 of which judicial notice is taken 1404 
 
 of which judicial notice is not taken 1405, 1408 
 
 DAMAGES, 
 
 measure of, for breach of contract affected by notice . . 480m 
 
 DANGEROUS ANIMALS, 
 
 liability of owner of fixed by notice 480i 
 
 DAY, 
 
 party entitled to one, for giving notice of dishonor of bills 
 
 and notes 794-805 
 
 general construction of " reasonable time " 794
 
 756 mDEX. 
 
 DAY — Contintied. Section 
 
 each party has his day 795 
 
 statement of rule by Ellenborough 796 
 
 the " day " of one party not for the benefit of another 797 
 
 consequences of numerous parties taking one day . . 798 
 
 time not always measured by number of parties . . 799 
 
 difficulties in applying the rule of one day to give notice 800 
 
 Chitty's doctrine as to " next day " 801 
 
 criticism of Chitty, by Story — twenty-four hours . 802 
 
 impracticability of Chitty's nile 803 
 
 inconvenience of twenty-four hour rule .... 804 
 
 judicial construction of "next day" 805 
 
 agents or attorneys have one, for giving notice of dis- 
 honor . . . . • 817 
 
 must be secular day 818 
 
 Jewish festival 819 
 
 Sunday 820 
 
 DEATH, 
 
 of partner, dissolves partnership, notice unnecessaxy . . 496 
 
 DEBT, 
 
 action of — when notice to produce books and papers unnec- 
 essary 1266 
 
 DECEEE IN CHANCERY, 
 
 summary proceedings to obtain, require notice .... 1140 
 
 DEED, 
 
 possession of, as notice of rights of possessor 46, 56 
 
 registry of, as notice to purchasers, 
 
 See Registeation of Insteuments. 
 
 of assignment, should be recorded 115 
 
 with defeasance, is mortgage and should be so recorded 187-189 
 sheriff's, recorded as mortgage, will not operate as notice . 190 
 unregistered,notice of, 
 
 See U^^lEGISTERED Instruments. 
 notice from recitals in. 
 
 See Title Papers. 
 
 DEFEASANCE, 
 
 deed with, should be recorded as mortgage, to operate as 
 
 notice to purchasers 187-189 
 
 by parol, deed recorded as mortgage 189 
 
 DEFENDANT, 
 
 should be named in original process 1152 
 
 when omission of name held immaterial 1153 
 
 when infant — how served with process 1158
 
 INDEX- 757 
 
 DEFINITION, Section 
 
 of actual notice 3 
 
 of constructive notice 37 
 
 DELIVERY, 
 
 of instrument necessary to give effect to registry as notice 141-143 
 
 after recording 143 
 
 effect of 143 
 
 of goods for transportation, notice to carriers of . . . 452-456 
 
 See Carriers. 
 when negotiable paper passes by, transferrers not entitled to 
 
 notice 742 
 
 DELAY, 
 
 in sending notice of dishonor by usual route 929 
 
 DEMAND, 
 
 on principal, and notice, to bind guarantor, 
 
 See Guaranty. 
 for indemnity, after loss of insured property, notice of as- 
 signment of 450 
 
 by consignee, ends transit of goods 462 
 
 See Stoppage en Transitu. 
 for books and papers to be used in e^•idence, will not dis- 
 pense with notixje to produce 1259 
 
 DEPOSITIONS, 
 
 Notice of taking 1221-1256 
 
 when required 1221 
 
 generally in writing 1222 
 
 what to contain 1223 
 
 deemed sufficient 1224 
 
 clerical errors in 1225 
 
 name of officer 1226 
 
 witnesses need not all be named 1227 
 
 conditional — insufficient 1228 
 
 must be signed 1229 
 
 time of taking 1230 
 
 mistake in date of taking 1231 
 
 general requisites 1232 
 
 time of service 1233 
 
 decided by the comt 1234 
 
 computation of time and distance 1235 
 
 absence of statute or rule 1236 
 
 not always governed by distance 1237 
 
 not fixed by special cii'cumstances 1238 
 
 except when unusually short 1239 
 
 fixed by statute, may be shortened by the court . . 1240
 
 ^58 INDEX. 
 
 DEPOSITIONS — Continued. Section 
 
 objections on account of shortness of, when made . 1241 
 
 party objecting must show himself entitled to time 1242 
 
 service of 1243, 1300, 1301 
 
 insufficient 1244 
 
 upon several co-parties 1245 
 
 strict personal, not required 1246 
 
 proof of 1247 
 
 upon attorneys in partnership 1248 
 
 when deposition to be used in two cases 1249 
 
 postponement by consent 1250 
 
 effect of acknowledgment of service 1251 
 
 alteration of 1252 
 
 objections waived 1253 
 
 by presence at taking 1254 
 
 party may be present without waiver 1255 
 
 effect of adjournment without consent 1256 
 
 DESCRIPTION, 
 
 in title papers, sufficient to give notice to purchasers . 318-320 
 of property, in original process by publication .... 1059 
 
 in published notice of judicial sale 1088 
 
 of debt in mortgage, what is sufficient 180-185 
 
 errors in, how registry of instrvmients affected by, 
 See Eegistration of Instruments. 
 DESTRUCTION, 
 
 of records, does not affect notice by prior registration . . 157 
 
 DILIGENCE, 
 
 purchaser of real or personal property, put upon inqfuiry, 
 
 bound to exercise 17 
 
 imputation of bad faith from want of 11 
 
 purchaser of negotiable instruments bound to exercise . . 87 
 in prosecution of suit, necessary to notice by lis pendens 357-359 
 of holder of bill or note in presenting for acceptance or pay- 
 ' ment, and giving notice 990, 991 
 
 DIRECTOR, 
 
 of bank, notice to, affects corporation 683 
 
 corporation not affected with knowledge of every fact 
 
 known to 683, 683a 
 
 of corporation, place of business of, where notice may be 
 served 866 
 
 DISHONOR, 
 
 Of commercial paper, notice of, ... . Ch. VI, §§ 702-1028 
 
 by wJiom given 702-728 
 
 to whom given 729-775
 
 INDEX, 759 
 
 DJSRONOR— Continued. Section 
 
 time of giving 776-837 
 
 manner and mode of giving 828-929 
 
 waiver and excuse 930-1028 
 
 See Bills and Notes, 
 DISMISSAL, 
 
 of suit, effect of, upon notice by lis pendens 358 
 
 DISSOLUTION OF PARTNERSHIP, 
 
 Notice of 481-530 
 
 general nature of partnership 481 
 
 range of inquiry 482 
 
 reason for requiring notice 483 
 
 personal notice, oral or written 484 
 
 knowledge derived from circumstances 485 
 
 use of name after retirement 486 
 
 effect of legal notice of dissolution 487 
 
 corporation using partnership name 488 
 
 unnecessary to those ignorant of the partnership . . 489, 490 
 
 general knowledge of partnership sufficient .... 491 
 
 dormant partners . . . . " 492 
 
 dormant with respect to particular transaction . . . 493 
 
 must be unknown 494 
 
 known to some, unknown to others 495 
 
 dissolution by death 496 
 
 dissolution by bankruptcy 497 
 
 effect upon surviving or solvent partners 498 
 
 manner of giving 499 
 
 communication by mail 500 
 
 when not conclusive unless received 501 
 
 to agent or servant 503 
 
 altering signs, etc 503 
 
 public advertisement 504 
 
 publication insufficient to affect those having prior 
 
 dealings 505 
 
 reading papers not conclusive 506 
 
 inference drawn from publication 507 
 
 ■what are " prior dealings " 508 
 
 discounting notes 509 
 
 honoring successive drafts 510 
 
 renewal of accommodation paper 511 
 
 single purchase 513 
 
 to new customers 513 
 
 time of publication 514 
 
 publication in newspaper 515 
 
 when published 516
 
 7 GO INDEX. 
 
 DISSOLUTION OF PARTNERSHIP — CoJihnwed. Section 
 
 selection of newspaper 517 
 
 manner open to inquiry 518 
 
 English and American doctrine 519 
 
 liability of retii-ing partner affected by subsequent con- 
 duct 520 
 
 estoppel 521 
 
 example of new customer entitled to actual notice . . 522 
 
 knowledge of expiration of partnership 523 
 
 notice of limited partnership 524 
 
 special partnership 525 
 
 restrictions and limitations 526 
 
 assumption of excess of authority by one partner . . . 527 
 
 misapplication of funds 528 
 
 effect of dissolution upon guarantors 529 
 
 Onus probandi 530 
 
 DIVERSION, 
 
 of accommodation paper, notice of 946 
 
 DIVORCE, 
 
 and alimony, in suits for, service by publication .... 1083 
 
 DRAWER, 
 
 of biU, notice of dishonor should be given 739, 730 
 
 See Bills and Notes. 
 EASEMENT, 
 
 possession is notice to purchasers of reservation of . . . 300 
 
 EJECTMENT, 
 
 pendency of action of, notice to purchasers 343 
 
 of warrantee of title, and notice to warrantor . . 480c-480/ 
 
 EMPLOYEE, 
 
 misconduct of, liability of employer for fixed by notice . 480fc 
 
 ENGLISH REGISTRY LAWS, 
 
 decisions under, as to the effect of registration 104-106, 110-111 
 
 EQUITABLE INTEREST, 
 
 effect of filing conveyance of, for record 254 
 
 notice to purchasers of 97 
 
 See PUECHASEES. 
 
 EQUITABLE MORTGAGES, 
 
 under English and Irish registry acts 105-109 
 
 ERRORS, 
 
 in record of instrument, how registry affected by . . . 147 
 
 in description 148, 149, 159 
 
 after fihng for record 149 
 
 to whom is the oflScer responsible for ....... 150
 
 INDEX. 761 
 
 ERRORS — Continued. Section 
 
 notice unaffected by 152 
 
 partial omission 153 
 
 entire omission . 154 
 
 early American authorities 155, 156 
 
 in amount secured by mortgage 158 
 
 fraudulent concealment by officer 160 
 
 immaterial, or clerical, will not affect registry .... 161 
 
 principle governing question 163 
 
 failure to record in proper time 163 
 
 in indexing records 164-173 
 
 See Index. 
 or omission in instrument filed for record, effect of, when 
 
 misleading 174 
 
 insufficient description 175 
 
 in numbering tracts 176 
 
 in description of chattels 177 
 
 of debt due on mortgage 178 
 
 w^hen conditions insufficiently expressed 179 
 
 when with sufficient certainty 180-185 
 
 in sheriff's return of judicial sale, effect of 1094 
 
 in return of process, cured by amendment 1381 
 
 when immaterial 1369 
 
 EVIDENCE, 
 
 of title, possession is, 
 
 See Possession. 
 notice to produce books and papers to be used in . . 1257-1292 
 
 See Books and Papers. 
 
 secondary, of written instrument, when admissible . . . 1258 
 
 parol, in aid of defective return of process 1883 
 
 EXCUSES, 
 
 for failure of notice of dishonor of commercial paper . 976-1028 
 
 of a general nature, enumerated 976 
 
 inevitable accident 978 
 
 prevalence of malignant fever 979 
 
 existence of war 980 
 
 interdiction of commerce 981 
 
 actual hostilities 983 
 
 the late war 983 
 
 interruption of postal communication 984 
 
 war, where note payable 985 
 
 will not excdse if intercourse legal 986 
 
 loss of note by war, no excuse 987 
 
 entitled to notice when obstruction removed . . 988-992 
 
 party not required to violate law of his domicile . . 989
 
 762 iijDEX. 
 
 EXCUSES — Continued. Section 
 
 absconding of party liable — due diligence required . 990, 991 
 
 will not excuse notice of facts excusing demand . . . 991 
 
 of a special chai-acter enumerated 977 
 
 death of holder 993 
 
 sudden sickness and death of agent 994 
 
 sickness must be sudden and severe 995 
 
 treated as waiver 996 
 
 bill di'awn for benefit of drawer 997 
 
 note for accommodation of payee 998 
 
 for accommodation of drawee or acceptor 999 
 
 not excused by promise of drawee to provide for bill . 1000 
 
 no funds in hands of drawee 1001-1003 
 
 no right to expect payment • 1004 
 
 absence of funds, no excuse when payment expected . 1005 
 balance in hands of drawee not always good grounds 
 
 for expectation 1006 
 
 no reasonable expectation of payment .... 1007 
 
 mere existence of credit insufficient 1008 
 
 expectation of payment must continue to maturity 1009 
 
 need not be expected from drawee 1010 
 
 promise from di'awee 1011 
 
 where drawee has already honored drafts . . . 1012 
 
 running account between parties 1013 
 
 suspecting absence of funds, no excuse 1014 
 
 indebtedness of drawer to drawee, no excuse . . . 1015 
 no expectation of funds at j^lcice of xoayment, no ex- 
 cuse 1016 
 
 absence of funds, no excuse for failure to notify in- 
 
 dorser 1017-1019 
 
 former partnership between di'awer and drawee, no 
 
 excuse 1020 
 
 partner drawing upon his firm, not entitled to notice 1031 
 maker and indorser partners, and consideration 
 
 received by partnex'ship, no excuse 1023 
 
 fraud by indorser excuses failure of notice to him . . 1023 
 
 motives for indorsement, immaterial 1034 
 
 adding word ' ' surety " will not excuse 1025 
 
 present when payment refused, no excuse 1026 
 
 attachment of funds, no excuse 1027 
 
 note void at inception, notice unnecessary .... 1028 
 EXCUSE AND WAIVER, 
 
 of demand and notice to guarantors 426, 427 
 
 of notice of dishonor of commercial paper, 
 See Excuse. 
 See Waiver.
 
 INDEX. 763 
 
 EXECUTION SALE, Section 
 
 purchaser at, being the creditor, held not purchaser for 
 
 value 228 
 
 notified of prior conveyance by registry prior to sale . . 229 
 interest of mortgagee, not affected by bidding at ... . 230 
 purchaser at, protected by good faith of creditor .... 233 
 registration of deed prior to, gives precedence over judg- 
 ment hen 239 
 
 after purchase at, notice of prior unregistered conveyance, 
 
 too late 266 
 
 notice of, by publication 1086-1104 
 
 See Judicial Sales. 
 EXECUTOR, 
 
 notice to 693 
 
 EXPRESS NOTICE, 
 
 definition of — distinguished from notice by implication . 6, 7 
 
 FACTOR, 
 
 may give notice of stoppage in transitu 477 
 
 FACTS, 
 
 of which judicial notice is taken 1403-1417 
 
 See Judicial Notice. 
 
 FILING, 
 
 of instrument for registry, time within wliich to take place 101 
 
 consequences of delay in 102 
 
 effect of error in recording subsequent to 149 
 
 instruments for record, notice to purchasers from the time 
 
 of 162, 201 
 
 should be filed in their true character 186-191 
 
 should be in proper county 192-195 
 
 effect of withdrawing from files after 255 
 
 notice of motion, date of 1196 
 
 FORECLOSURE, 
 
 of mortgages, doctrine of lis pendens in actions for . . . 342a 
 suits — service by publication — notice should describe prop- 
 erty 1059 
 
 FORM, 
 
 of notice of dishonor of commercial paper 835 
 
 FRAUD, 
 
 disregard of notice amounting to 9, 89, 90, 93 
 
 of agent, principal not to be benefited by 32 
 
 purchaser guilty of, not protected 63 
 
 not imputed to one who withholds mortgage from record, 
 
 with knowledge of subsequent purchaser 253 
 
 practiced by agent 257
 
 7C-1 INDEX. 
 
 GAEXISHEE, SECTION 
 
 affected by notice of prior assignment of chose in action . 434 
 GEOGRAPHICAL FACTS, 
 
 of which judicial notice is taken 1410 
 
 GUARANTEE, 
 
 notice from, when necessary to fix liability of guarantor, 
 See Guaranty. 
 GUARANTOR, 
 
 may give notice to carrier, of stoppage in transitu . . -. 479 
 
 what necessary to fix liability of. 
 
 See GUAKANTY. 
 
 GUARANTY, 
 
 notice of 386-427 
 
 different forms of collateral UabiUty 386 
 
 division of subject 387 
 
 conflicting decisions as to notice of acceptance . . . 388 
 
 early authorities 389 
 
 guarantor entitled to notice — absolute guaranty . . 390 
 
 proposal to guaranty 391 
 
 letter of credit held to be proposal 392 
 
 reason for notice of proposed guaranty 393 
 
 absolute guaranty — notice not required 394 
 
 distinction between different kinds of guaranties . . . 395 
 
 uncertainty of demand 396 
 
 general indefinite letters of credit 397 
 
 definiteness of amount 398 
 
 guaranty of proposed credit 399 
 
 absolute guaranty of uncertata amount 400 
 
 notice of acceptance held unnecessary • . . . . 401 
 
 continuing absolute guaranty 402 
 
 principles regarded as settled 403 
 
 weight of authority 404 
 
 rule as to indefinite letters of credit 405 
 
 time of giving notice of acceptance 406 
 
 notice of action on faith of the guaranty 407 
 
 change of manner of reimbursement 408 
 
 report of particular transaction, not generally required . 409 
 
 notice of state of accounts, on demand of guarantor . 410 
 
 notice of principal's failure 411 
 
 conflict of authority 412 
 
 early Massachusets cases 413 
 
 demand and notice held necessary 414 
 
 later decisions, contra to above 415 
 
 Indiana authorities 416 
 
 negligence of guarantee 417
 
 INDEX. 765 
 
 GVARAJ^TY— Continued. Section 
 
 rule in Connecticut — absolute guaranty 418 
 
 uncertainty of amount 419 
 
 means of knowledge within reach of guarantor . . 420 
 
 Pennsylvania doctrine 421 
 
 guaranty and suretyships 423 
 
 deductions from authorities 423 
 
 obligation unUmited and uncertain 424 
 
 notice required, not same as of dishonor of bills and 
 
 notes 423 
 
 notice excused — reasonable time 426 
 
 waiver of notice 427 
 
 GUARDIAN, 
 
 of holder of bill or note, may give notice of dishonor . . 727 
 HEIR, 
 
 purchaser from, without notice of unregistered deed from 
 
 ancestors . • 217-223 
 
 protected, the same as though he purchased from ancestor 
 
 without notice 217 
 
 reasons assigned for the rule 218 
 
 held not to be protected, because title never descended • 219 
 
 the better reason in favor of innocent purchaser from heir 220 
 
 review of authorities, jji-o and con 221 
 
 weight of authority, and governing principle .... 222 
 
 HIGHWAYS, 
 
 public Uability of municipal corporations for failure to keep 
 
 in repair .... 480gf 
 
 HISTORICAL FACTS, 
 
 of which judicial notice is taken 1411 
 
 HOLDER, 
 
 of note or bill, generally the proper party to give notice of 
 
 dishonor 702 
 
 need not be for value 716 
 
 may hold as coUateral security 721 
 
 adoption by, of notice from stranger 722 
 
 when may choose between places of sending notice . 894-896 
 
 misled by place of date 926 
 
 HOURS, 
 
 of giving notice of dishonor of negotiable paper, at place of 
 
 business 788 
 
 at place of residence 789-791 
 
 nine o'clock P. M., held not too late 790 
 
 when left too late on day of dishonor, may serve for 
 
 next day 791
 
 706 INDEX. 
 
 HOURS — Continued. Section 
 
 unreasonably early, for sending notice of dishonor by mail 806 
 
 mail closed before two o'clock A. M., too early . . . . 807 
 
 five o'clock A. M., too early for business 808 
 
 six o'clock the hour of closing, too early 810 
 
 ten minutes past nine A. M., held not unreasonably early 811 
 
 might be reasonably earlier than nine 812 
 
 half-past nine held too early 813 
 
 of closing mail determines whether notice should be sent 
 thereby 807,814 
 
 of mailing notice of dishonor, to non-resident, will deter- 
 mine whether in time 821 
 
 HUSBAND AND WIFE, 
 
 relative rights and liabilities of, affected by law of agency . 671 
 
 wife affected with notice by knowledge of husband . . 679 
 
 confined to transactions in which he is active . . . 680 
 
 IGNORANCE, 
 
 voluntary, imputed to one neglecting to make taquiry . . 279 
 
 IMPLICATION, 
 
 notice by 8-36 
 
 insufficient to affect purchaser of real estate . . . 245-252 
 sufficient to affect purchasers of real estate .... 249-251 
 of authority of agent to give notice of dishonor .... 720 
 INDEMNITY, 
 
 contracts of, affected by notice 480Z 
 
 measure of damages 480»i 
 
 taken by indorser, not always a waiver of notice . . . 943-953 
 INDEX, 
 
 to record of instrument, effect of 164 
 
 failure to, does not affect record 165 
 
 effect of indexing under Iowa statute . 167 
 
 sufficient to put upon inquiry 168 
 
 held part of record 169 
 
 making of, an official act of which grantor has no control . 170 
 
 mortgagee not affected by officer's failure to 171 
 
 held no part of the record 172, 173 
 
 INDORSEMENT, 
 
 by partnership — notice of dishonor 752 
 
 of renewal note considered as waiving notice 953 
 
 See Indorsee. 
 See Bills and Notes. 
 INDORSER, 
 
 of bill or note, notice of dishonor should be given . 729, 734r-741 
 need not be Indorser for value 735
 
 INDEX. 767 
 
 mDORSER- Continued. Section 
 
 may be from any subsequent party 736 
 
 case of partial dishonor, liability pro tanto 737 
 
 over-due negotiable paper, governed by same rule . . 738, 739 
 when re-issued by indorser, notice of subsequent dis- 
 honor unnecessary 740 
 
 paper piu-chased' at indorser's request — unnecessary . . 741 
 
 when delay in giving notice chargeable to 925-928 
 
 waiver of notice by 95o 
 
 See Waiver. 
 when failure of notice to, will, and will not, be excused 1017-1028 
 
 See Excuses. 
 INFANT, 
 
 notice of dishonor of negotiable insti-ument by ... . 727 
 
 notice of dishonor of negotiable instrument to ... . 773 
 
 service upon, of notice or summons 1316 
 
 sti'ict conformity to law required 1158 
 
 INFERENCE, 
 
 of fact, implied notice an 8, 40 
 
 of law, constructive notice an 8, 42 
 
 of bad faith by jury, from circumstances 88, note 
 
 from general language of return 1377 
 
 INFORMATION, 
 
 direct, is express notice ^ 6, 7 
 
 sufficient to put upon inquiry 27 
 
 different sources of 28 
 
 allaying suspicion, when may be relied on 35 
 
 from doubtful sources, effect of reliance upon .... 36 
 
 vague and uncertain, to be disregarded 258 
 
 INJUNCTION, 
 
 application for, service of notice 1325 
 
 INQXHRY, 
 
 circumstances sufficient to put purchaser on 10 
 
 facts sufficient to excite 13 
 
 knowledge of trust sufficient to put purchaser upon , . . 21, 22 
 
 inadequacy of price sufficient to excite 23, 24 
 
 relationship between parties will put purchaser on . . . 25 
 excited by notice of partnership interest in property pur- 
 chased 26 
 
 information sufficient to excite 27 
 
 when fruitless, purchaser will be protected 34 
 
 due 65a 
 
 facts which excite held inadmissible against purchaser of 
 
 negotiable instruments 86
 
 708 INDEX. 
 
 INQUIRY — Continued. Section 
 excited by inspection of negotiable paper, will affect pur- 
 chaser 90 
 
 examination of records insuflScient to protect purchaser . 270 
 
 possession sufficient to put purchaser on 876, 277 
 
 failiire to make — voluntary ignorance 279 
 
 excited by recitals in title papers should lead to examina- 
 tion of papers 335 
 
 purchaser put upon, as to assignment of choses in action 488, 439 
 for residence of party to bill or note, necessary before notice 
 dispensed with 913-921 
 
 INSTRUMENTS, 
 
 the registration of which will operate as notice . . . 113-123 
 See Registration of Instruments. 
 
 INSURANCE, 
 
 notice of assignment of policy of 444-446 
 
 effect of transfer of insured property 447-449 
 
 by retiring partner 448 
 
 notice and assent implied from receipt of premium . . 449 
 assignment of demand for indemnity, after loss . . . 450 
 notice of loss 4801 
 
 INTERCEPTION, 
 
 of goods by consignee, ends transit 474 
 
 JOINT PURCHASERS, 
 
 do not always sustain towards each other the relation of 
 
 principal and agent 684 
 
 JUDGMENT CREDITORS, 
 
 rights of, subordinate to those of vendor of goods in transitu 475 
 
 JUDGMENTS, 
 
 given precedence over prior unregistered deeds .... 288 
 held not liens upon real estate, superior to prior unregistered 
 
 conveyances 240 
 
 obtained by service of process by pubUcation, only bind 
 
 property 1084 
 
 not subject to collateral attack 1085 
 
 against sureties cannot be obtained without process . . , 1141 
 attacked and set aside for failure of notice of trial . 1176-1179 
 
 assented to in the alternative in notice of appeal .... 1214 
 
 JUDICIAL NOTICE OF FACTS, 
 
 general view 1403 
 
 public statutes, common law and general customs . . . 1404 
 
 foreign laws and customs 1405 
 
 pubhc treaties 1406 
 
 public institutions 1407
 
 • INDEX. 769 
 
 JUDICIAL NOTICE OF FACTS — Continued. Section 
 
 local customs, special statutes 1408 
 
 municipal ordinances 1409 
 
 geographical facts 1410 
 
 historical facts 1411 
 
 election and appointment of officers 1413 
 
 official signatures and seals ^ .... 1413 
 
 terms of court and judicial proceedings 1414 
 
 the general course of nature 1415 
 
 scientific and other facts of uniform occurrence . . . . 1410 
 facts occurring in tlie general course of human life, the 
 
 arts, etc 1417 
 
 JUDICIAL PROCEEDINGS, 
 
 parties defendant must have notice of 1138 
 
 JUDICIAL SALES, 
 
 Notice of , by pnblication 1086-1104 
 
 statutory requirement, merely dii'ectory 1086 
 
 puix'haser with notice 1087 
 
 description of property 1088 
 
 immaterial omissions in 1089 
 
 changing name of paper 1090 
 
 several executions in one advertisement 1091 
 
 sale may be adjourned 1092 
 
 may be had under alias execution 1093 
 
 error in sheriff's return 1094 
 
 publication in paper, when posting required .... 109.") 
 
 failure to give notice will not always render sale void . 1096 
 
 strict compliance with statute required 1097 
 
 sale void for want of proper notice 1098 
 
 no uniform rule as to publication of notice of sales . . 1099 
 
 time of pubUcation 1100 
 
 six weeks' notice 1101 
 
 once a week, for three months 1102 
 
 what constitutes publication 1103 
 
 posting in public places 1104 
 
 JURISDICTION, 
 
 necessary to be obtained by process, to affect purchasers 
 
 pendente lite with notice 354 
 
 holder of legal title must be impleaded 355 
 
 should be stated in affidavit or declaration for order of pub- 
 lication 1033 
 
 definition of, and how obtained by service of process . . 1101 
 for purpose of hearing motion for new trial, lost at end of 
 
 tlieterm 1203 
 
 49
 
 70 INDEX. 
 
 JURISDICTION — Continued. Section 
 
 how obtained by state courts, of forei^ corporations . . 1303 
 
 must be cause of action arising within the state . . . 1304 
 reasonableness of rule requiring foreign corporations to 
 
 accept service 1305 
 
 not obtained by federal courts by service on corporations 
 
 foreign to the district 1306, 1307 
 
 how obtainecf of foreign corporations, in federal courts . . 1308 
 
 how obtained of domestic corporations — officers served . 1309 
 
 service upon ticket agent of raih"oad 1310 
 
 upon director or station agent 1311 
 
 how obtained in action against municipal corporation . . 1312 
 
 upon city clerk, insufficient 1313 
 
 See Service. 
 KNOWLEDGE, 
 
 distinction between and notice 3 
 
 imputed to one who has means of knowing 11 
 
 of infirmities of negotiable instrument purchased, a ques- 
 tion of fact 85 
 
 derived from recitals in muniments of title. 
 
 See Title Papers. 
 of facts sufficient to excite inquiry, raise inference of no- 
 tice of assignment 438, 439 
 
 of dissolution of pai'tnership, derived from circumstances . 485 
 of partnership, generally sufficient to entitle one to notice 
 
 of dissolution 491 
 
 of trustee before creation of trust 694 
 
 of dishonor, not necessary at time of giving notice . . . 723 
 previously acquired, of place of residence of party to bUl 
 
 or note 922 
 
 of laches, subsequent promise must be made with, to amount 
 
 to waiver of notice 972-975 
 
 See Bills and Notes. 
 See Waiver. 
 
 will not excuse faUure to serve original process .... 1146 
 
 LANDLORD AND TENANT, 
 
 tenant's possession as notice of landlord's title . . . 281-286 
 the rights and liabilities growing out of the relation of, af- 
 fected by notice 578-650 
 
 notice to quit — a reciprocal right 578 
 
 division of subject 579 
 
 statutory provisions 580 
 
 nature of tenancy requiring notice 581 
 
 frona year to year 582 
 
 growing out of possession under contract .... 583
 
 INDEX. 7 1 1 
 
 LANDLORD AND TENANT — C'onhni<ed. Section 
 
 occupancy with owner's consent 584 
 
 holding over term 585 
 
 lease void under statute of frauds 586 
 
 implied agreement sufJicient 587 
 
 when payment of rent not essential .... 588 
 
 possession by mortgagor after forfeiture .... 589 
 
 general tenancy at will 590 
 
 termination of strict tenancy at will 591 
 
 mere occupant not entitled to notice 593 
 
 contract of purchase by trespasser will not entitle him 
 
 to notice 593 
 
 trespasser negotiating for lease not entitled to notice . 594 
 
 bailiff or servant of owner not entitled to notice . . 595 
 general tenancy at will not created by holding over 
 
 term 596 
 
 tenant for life of another not entitled to notice . . . 597 
 
 tenant disputing landlord's title not entitled to notice . 598 
 
 grantee of mortgagor not entitled to notice .... 599 
 
 tenancy strictly at will or by sufferance 600 
 
 tenancy by the quarter 601 
 
 when owner of premises may elect as to nature of ten- 
 ancy 605 
 
 holding over under agreement for new lease .... 603 
 
 proof of tenancy from year to year 604 
 
 bmlhens and benefits equally divided 605 
 
 increase of rate 606 
 
 time of notice 607 
 
 regulated by statute 608 
 
 must expire at commencement of new term . . . 609 
 
 when tenancy by the quarter 610 
 
 tenants from month to month 611 
 
 governed by taking possession — principal and acces- 
 sorial subject of demise 612 
 
 the different kinds of uncertain tenancies 613 
 
 circumstances by whicli may be determined . . . 614 
 
 by whom notice should and may be given .... 615 
 
 joint lessees or lessors 616 
 
 partners 617 
 
 one giving notice as agent of co-tenant 618 
 
 agent must have authority at time of giving notice 619 
 
 agency must extend to the duty undertaken . . 620 
 
 when authority inferred 621 
 
 by corporation 623 
 
 by receiver 623 
 
 when should be by tenant 624
 
 772 INDEX. 
 
 LANDLORD AND TENANT — Continued. Section 
 
 when by landlord 625 
 
 to whom given 636 
 
 joint tenants, tenants in common, partners . . . 627 
 
 to corporation 628 
 
 form and sufficiency 629 
 
 address of written notice 630 
 
 what to contain 631 
 
 statement of cause 632 
 
 time to be mentioned in general terms .... 633 
 
 tenant from week to week 634 
 
 must not demand possession forthwith . . . 635 
 
 undue strictness not required 636 
 
 description 637 
 
 substantial accuracy sufficient 638-640 
 
 service 640 
 
 may be waived 641 
 
 voluntary smTender by tenant 642 
 
 by parol, and acceptance by landlord .... 643 
 
 offering to let, not waiver of notice by landlord . 644 
 
 parol surrender must go into immediate effect . . 645 
 verbal license to suixender tenancy from year to 
 
 year 646 
 
 defects in notice may be waived 647 
 
 waiver of rights under notice 648 
 
 wiU not be presumed frojtn acceptance of rent by an 
 
 unauthorized person 649 
 
 mere permission to remain after notice, no waiver . 650 
 LAWS, 
 
 of which judicial notice is taken '^. . . . 1404 
 
 not judicially noticed 1405, 1408 
 
 LEASE, 
 
 assignment of, properly recordable 116 
 
 verbal, termination of by notice to quit, 
 
 See Landlord and Tenant. 
 
 LESSEE, 
 
 possession by, changed to possession as owner, effect of as 
 
 notice 303 
 
 LETTER CARRIERS, 
 
 notice of dishonor of commercial paper served by . . 869-874 
 See Bills and Notes. 
 
 LETTER OF CREDIT, 
 
 notice of acceptance of, and of failure of principal, 
 See Guarantor.
 
 INDEX. 773 
 
 LIABILITIES, ' Section 
 
 notice by which certain, created . . . . Ch. Ill, §§ 378-480 
 See Acceptance. 
 " guaeanty. 
 " Assignment. 
 " Carriers. 
 " Stoppage in Transitu. 
 
 for tort fixed by notice 480gr-480fc 
 
 notice by which certain, extinguished or modified Ch. IV, §§ 481-650 
 See Dissolution of P^vrtnership. 
 " Carriers. 
 " Arrival. 
 
 " Landlord and Tenant. 
 LIEN, 
 
 for purchase money of chattels, undisclosed 71 
 
 notice of, from recitals in title papei-s , 
 See Title Papers. 
 LIS PENDENS, 
 
 notice to purchasers by 337-377 
 
 Lord Bacon's rule 337 
 
 pubUc policy 338 
 
 doctrine of constructive notice applied 339 
 
 views of Judge Story 340 
 
 of Chancellor Kent 341 
 
 rule of equity jurisprudence 342 
 
 various actions in which the doctrine has been apphed 342a 
 
 applied to action of ejectment 343 
 
 confined to proceedings in courts of general jurisdic- 
 tion 343 
 
 the doctrine indispensable 344 
 
 applied in partition suits 342a, 343 
 
 views of Lord Hardwicke 345 
 
 effect of revivor 346 
 
 payment of consideration no protection to purchasers . 347 
 
 commencement of suit 348 
 
 service of process 349 
 
 harshness of the rule 350 
 
 property to be identified 351 
 
 alimony 352 
 
 creditor's biU 353 
 
 jurisdiction necessary 354 
 
 holder of legal title must be impleaded ' 355 
 
 equitable interests between co-defendants unaffected 356 
 
 suit must be continuously prosecuted 357 
 
 effect of dismissal 358
 
 774 LNDEX. 
 
 LIS PENDENS — Co7itimied. Section 
 
 diligence in prosecution 359 
 
 not affected by deatli of party 359 
 
 rule not extended to affect others than subsequent pur- 
 chasers 360 
 
 nor to affect purchasers from different source of title 360 
 
 jjrior mortgagee unaffected 861 
 
 foreclosure of prior mortgage 363 
 
 antecedent equity 363, 364 
 
 owner of, may acquu-e legal title, pendente lite . . 365 
 contingent right may be rendered absolute, pendente 
 
 lite 366 
 
 waiver of rights by plaintiff, after judgment or decree - 367 
 
 purchase must be from party to the suit 368 
 
 generally confined to purchaser of real estate .... 369 
 
 purchaser of securities affected 370, 371 
 
 does not affect purchasers of negotiable instruments . 372 
 
 peculiar kind of property 373 
 
 statutory provisions 374 
 
 purchaser not affected personally 375 
 
 statute of limitations does not run during suit .... 376 
 
 purchaser at execution sale 877 
 
 LOST BILL, 
 
 negotiable, notice of to pui-chasers, not sufficient by adver- 
 tisement 81 
 
 MACHINERY, 
 
 dangerous, liabUity of owner for, fixed by notice. . . . 480A; 
 
 MAIL, 
 
 notice of dissolution of partnership by 500, 501 
 
 notice of dishonor of commercial paper by 807, 815, 816, 869-929 
 
 See Bills and Notes, 
 MAKER, 
 
 of note, when may give notice of its dishonor 713 
 
 MANNER AND MODE, 
 
 of giving notice of dishonor of negotiable instrument . 828-929 
 See Bills and Notes. 
 
 MARRIAGE SETTLEMENT, 
 
 purchaser of real estate with notice of 51 
 
 registry of, required by English statute 106 
 
 MARRIED WOMAN, 
 
 when party to bill or note may give notice of dishonor . . 728 
 
 MECHANIC'S LIEN, 
 
 notice of 1155
 
 INDEX. 775 
 
 MESSENGEE, Section 
 
 notice of dishonor of commercial paper sent by, sufficient 
 
 if in time 889 
 
 MINOR, 
 
 should be notified of dishonor of bill or note to which he is 
 
 a pai-ty 773 
 
 may give notice of dishonor of bill or note held by him . 727 
 
 service of summons in suits against 1316 
 
 MISCELLANEOUS PROCEEDINGS, 
 
 of which notice given by publication 1122-1134 
 
 general remarks 1123 
 
 conti-act for pubhc improvements 1123 
 
 special assessments 1124 
 
 intention to order improvements 1125 
 
 opening street 1126 
 
 eminent domain 1127 
 
 sales by guardians and cm'ators 1128 
 
 executors' sales 1129 
 
 sold for paying debts of decedent 1130 
 
 executor's notice, how addi-essed 1131 
 
 meeting to divide township 1132 
 
 mortgagees' sales 1133 
 
 matters elsewhere treated 1134 
 
 MORTGAGE, 
 
 released by one other than mortgagee, should put ptirchaser 
 
 from mortgagor on inquiry 20 
 
 of chattels, how affected by registry laws 77 
 
 equitable, under British registry acts 105-109 
 
 registered, claim under, as against unregistered wiU . . 108 
 
 agreement to execute, a proper subject for registration . . Ill 
 
 assignment of, is recordable 117 
 
 conditions of, should be expressed to operate as notice when 
 
 registered 179, 273 
 
 when with sufficient certainty 181, 183 
 
 securing future advances, registration of, as notice . . 182 
 
 secret, record of, wiU not operate as notice 191 
 
 two simultaneously executed and delivered, effect of prior 
 
 registiy of one 197 
 
 purchaser with knowledge of unrecorded 253 
 
 assignee of, regarded as piu-chaser 263 
 
 description in, of debt secured by, and of property incum- 
 bered 273 
 
 See Registration of Instruments. 
 notice from recitals in, 
 
 See Title Papers.
 
 776 INDEX. 
 
 MORTGAGEE, Section 
 not prejudiced by officer's failure to index record of mort- 
 gage 171 
 
 sales by 113S 
 
 MOTIONS, 
 
 And other proceedings in court, notice of ... . 1182-1207 
 
 by entry in book 1183 
 
 when should be given 1184 
 
 presence of counsel will not waive 1185 
 
 parties charged with 1186 
 
 motion in the nature of summary judicial proceeding . 1187 
 
 to set aside sheriff's sale 1188 
 
 filed dm-ing term of court 1189 
 
 examples under different statutes 1190 
 
 motion to dismiss appeal 1191 
 
 sufficiency of 1192 
 
 substantial accuracy 1193 
 
 against constable 1194 
 
 designation of court 1195 
 
 date of ffling 1196 
 
 circumstances affecting sufficieucy 1197 
 
 should generally be in writing 1198 
 
 service 1199-1203 
 
 upon party or his attorney — generally from one attor- 
 ney to another 1199 
 
 upon the party 1200 
 
 time 1201 
 
 motion for new trial 1202 
 
 waiver by appearance 1203 
 
 reference 1204 
 
 reiustatement of case 1205 
 
 rule to show cause 1206 
 
 of examination of accounts 1207 
 
 MUNICIPAL CORPORATIONS, 
 
 UabUity of, for torts, fixed by notice 480sr 
 
 MUNICIPAL ORDINANCES, 
 
 extent to wliich judicially noticed 1409 
 
 NAME, 
 
 error in, wiU not affect notice of dishonor from proper party 718 
 NEGLIGENCE, 
 
 for purchaser put upon inquiry, not to inquire . . . . 17, 88 
 
 by wliich purchasers of negotiable instruments affected 
 with notice 82, 87 
 
 and bad faith of purchaser, questions of fact 83
 
 INDEX. 777 
 
 NEGLIGENCE — Continued. Section 
 
 notice given by caiTier will not exempt from consequences 
 
 of 558-561 
 
 in failing to inquire amounts to voluntary ignorance . . 279 
 
 NEGOTIABLE INSTRUMENT, 
 
 purchaser of, before maturity, only affected with actual no- 
 tice of infii-mities 36a, 40^2a, 80-94 
 
 lost bill 81 
 
 holder of, only affected when grossly negligent in pur. 
 
 chasing 82 
 
 bad faith requisite to defeat rights of purchaser before 
 
 matm-ity 83 
 
 pm-chaser without notice protected 84 
 
 knowledge a question of fact 85 
 
 facts which excite iiiquiry held inadmissible against pur- 
 chasers before maturity 86 
 
 circumstances which put purchaser on his guai'd ... 87 
 
 bad faith an inference of fact 88, note 1 
 
 inquiiy excited by inspection of paper 90 
 
 when " general notice " sufficient 91 
 
 suspicious circumstances 92 
 
 payment before and after notice 93 
 
 patent defects affecting pm-chasers 94 
 
 unaffected by lis xnndcns 372 
 
 without indorsement notice of assignment held necessary 442 
 
 Notice of dishonor of 702-1028 
 
 hy icJiom given 702-728 
 
 to whom given 729-775 
 
 time of giving 776-827 
 
 manner and mode of giving 828-929 
 
 waiver and excuse 930-1028 
 
 See Bills and Notes. 
 NEWSPAPER, 
 
 what is 1066 
 
 containing advertisement of dissolution, reading. \\W\. not 
 
 charge old customer with notice 504-507 
 
 advertisement in, will not be sufficient notice to limit car- 
 rier's liability 546 
 
 publication of original process in 1065-1067 
 
 effect of changing name of, upon published notice of judi- 
 cial sale 1090 
 
 NON-JUDICIAL INVOLUNTARY SALES, 
 
 Notice of, by publication 1105-1131 
 
 strict compliance with statute required 1105 
 
 tax sales 1106 
 
 publication an official act 1107
 
 7 i S INDEX. 
 
 NON-JUDICIAL INVOLUNTARY SALES — Continued. Section 
 
 when state printers designated 1108 
 
 should state the amount due 1109 
 
 should give the name of tax debtors 1110 
 
 time fixed by statute to be closely followed .... 1111 
 
 sale held void for failure of notice, after fifty years . 1112 
 
 construction of statute as to time of publication , . 1113 
 
 three successive publications for three months . . 1114 
 
 during three successive weeks . . v 1115 
 
 should commence after tax becomes due . . . . 1116 
 
 form and sufficiency 1117 
 
 when form prescribed by statute 1118 
 
 proof of publication 1119 
 
 statutory mode of, exclusive 1130 
 
 required certificate must be contained in statement . 1121 
 
 NON-RESIDENTS, 
 
 service of summons upon 1358, 1359 
 
 NOTES, 
 
 See Bills and Notes. 
 See Negotiable Instruments. 
 NOTICE, 
 
 Different kinds of 1-47 
 
 actual notice 1-36 
 
 constructive notice 37-47 
 
 to purchasers 48-377 
 
 of different kinds of property or securities 48-94 
 
 registration of instruments 95-272 
 
 notice by possession 273-306 
 
 notice from title papers 307-336 
 
 lis pendens 337-377 
 
 by which certain liabilities are created 378-480 
 
 of acceptance of proposals 378-385 
 
 of guaranty 386-427 
 
 of assignment 428-450 
 
 to carriers and, other bailees 451-480 
 
 by loliicli liability is extinguished or modified .... 481-650 
 
 dissolution of partnership 481-530 
 
 limiting the liability of common carriers and other 
 
 bailees 531-577 
 
 landlord and tenant 578-650 
 
 between principal and agent 651-701 
 
 of agency 651-671 
 
 to an agent 672-695 
 
 by an agent 696-701 
 
 of dishonor of commercial paper 702-1028 
 
 See Dishonor.
 
 INDEX. 770 
 
 NUISANCE, Section 
 
 liability for, fixed by notice 480{/, ASOk 
 
 notice to abate 480/i 
 
 OCCUPANCY, 
 
 by tenant, notice of landlord's title 284, 285 
 
 by church society, is notice to purchasers 289 
 
 See Possession. 
 
 OFFER, 
 
 continuing and limited, notice of acceptance of ... . 378 
 by auctioneer, what amounts to acceptance of .... 381 
 
 OFFICER, 
 
 before whom acknowledgment of deeds may be made . 130-136 
 See Acknowledgment. 
 
 by whom instrument may be recorded 144-146 
 
 . 145, 146 
 
 . . 6836 
 
 1052-1054 
 
 . . 1298 
 
 by officer de facto 
 
 of corporation, notice to is notice to corporation 
 by whom publication of notice to be ordered . 
 when party to action, by whom process served 
 
 OFFICERS, 
 
 election and appointment of, judicially noticed . . . . 1412 
 signature of, judicially noticed 1413 
 
 OMISSIONS, 
 
 from notice of dishonor, immaterial, will not affect . . 836-840 
 
 immaterial, in published notice of judicial sale .... 1089 
 
 in original process 1155 
 
 ORDER OF PUBLICATION, 
 
 See Process. 
 
 See Publication. 
 
 ORIGINAL PROCESS, 
 
 See Process. 
 
 PAPERS, 
 
 notice to produce to be offered in evidence . . . . 1257-1202 
 
 See Books and Papers. 
 in the hands of attorney, he may be required to testify to 
 their existence, though intrusted to him in confidence . 1272 
 
 PAROL, 
 
 contract to convey, purchaser affected with notice of . . 52 
 
 PARTIES, 
 
 affected vrith notice by pendency of suit 355, 356 
 
 to notes or bills may give notice of dishonor .... 703-713 
 
 PARTITION, 
 
 lis pendens, in action to set aside decree of .... 342a, 343 
 original process in suits for, property should be described . 1059
 
 780 INDEX. 
 
 PARTNER, Section 
 
 retiring, must give notice of assignment of insurance 
 
 policy 448 
 
 dormant, notice of dissolution unnecessary 493 
 
 who is, within meaning of the rule 493-495 
 
 not entitled to notice of dishonor of bill drawn by co- 
 partner 733 
 
 notice to, of dishonor of partnership paper .... 751, 752 
 
 how served to bind both 878, 1314, 1315 
 
 See Bills and Notes. 
 PARTNERSHIP, 
 
 effect of knowledge of, by one purchasing from one of the 
 
 partners 26 
 
 Notice of dissolution of 481-530 
 
 See Dissolution op Partnership. 
 PATENT, 
 
 to real estate, notice from recitals in 311, 312 
 
 PAYMENT, 
 
 notice prior to, will bind jDurchasers . 60, 93 
 
 effect of, when made on day of dishonor of note or bill . 780 
 
 refusal of, at maturity, will justify notice of dishonor . . 783 
 
 failure of and qualified refusal 784 
 
 PENNY POST, 
 
 as a means of serving notice of dishonor of bills and notes 772 
 See Bills and Notes. 
 
 PERSONAL PROPERTY, 
 
 how purchasers of, may be notified of adverse interests, 
 
 See Chattels. 
 notice of title to, from recitals in title papers, 
 
 See Title Papers. 
 notice of title to, by possession. 
 
 See Possession. 
 PLEADING, 
 
 division of subject 1388 
 
 when necessary to aver notice 1387 
 
 action on guaranty 1388 
 
 when notice unnecessary 1389 
 
 facts within defendant's knowledge 1390 
 
 when knowledge Ues between the parties 1391 
 
 when want of notice to be averred 1392 
 
 manner of alleging notice 1393 
 
 must aver that it was given to proper party . . 1394, 1396 
 when substituted by statute, should show strict compli- 
 ance 1395
 
 INDEX. 781 
 
 PLEADING — Co?if/>med Section 
 
 should appear to be giTen in due time 1396 
 
 waiver and excuse to be alleged 1396, 1^97 
 
 facts pleaded according to their legal effect 1398 
 
 manner of aveiTing want of notice 1399 
 
 admissions in plea or answer 1400 
 
 consequences of defective pleading 1401 
 
 practice under the code 1402 
 
 PLEDGE, 
 
 property held in, will be subject to terms of contract be- 
 tween parties 73 
 
 not subject to secret trusts of which pledgee had no no- 
 tice 68 
 
 POLICY OF INSUEANCE, 
 
 assignment of, notice requisite 444-447 
 
 POSSESSION, 
 
 Notice by 273-306 
 
 general doctrine 273 
 
 modified by registry laws 274 
 
 evidence of actual notice 275 
 
 sufficient to put pvirchaser on inquiry 276, 277 
 
 effect of knowledge of jjossession, where actual notice not 
 
 required 278 
 
 voluntary ignorance 279 
 
 character of occupancy 280 
 
 by tenant under lease 281 
 
 of interest claimed by occupant 282 
 
 of interest of occupant's creditors 283 
 
 tenant's occupancy, notice of landlord's title . 284-286, note 
 
 no evidence of title in stranger 287 
 
 possession must be actual, notorious and continuous 286, note, 
 
 288 
 
 occupancy by church society 289 
 
 should be exclusive 290 
 
 xinequivocal 291 
 
 when doubtful in extent 292, 293 
 
 possession and claim of right should be contempora- 
 neous 294-802 
 
 instance where possession and claim not required to be 
 
 concurrent 295 
 
 effect of abandonment 296 
 
 when possession referred to record title 297, 298 
 
 claim inconsistent with record 299 
 
 of reservation of easement 300
 
 782 INDEX. 
 
 POSSESSION— Co jifMMteri'. Section 
 exception to rule requiring claim and record to be con- 
 sistent 301 
 
 possession to begin with uni-ecorded title .... 30S-304 
 lessee's occupancy, changed to possession as owner . . 303 
 
 creditors affected with notice by 305 
 
 chattels 306 
 
 held insufficient to affect purchasers 14 
 
 held sufficient 16, 78 
 
 regarded as constructive 44 
 
 of deeds, that the one in possession has an interest in the 
 
 land 46,56 
 
 of chattels, not conclusive evidence of title 69 
 
 as notice to purchasers generally 78 
 
 of goods by consignee, ends transit 466 
 
 POSTING, 
 
 notices by carriers, limiting their liability as insurers, insuf- 
 ficient 538, 539 
 
 notices of judicial sales, in public places 1104 
 
 as a substitute for personal service. 
 See Service. 
 POSTOFFICE, 
 
 to which notice of dishonor of bill or note should be 
 
 directed 883-909 
 
 See Bills and Notes. 
 
 PEACTICE AND PLEADING 1135-1402 
 
 Original process 1135-1161 
 
 Notice of trial 1162-1181 
 
 Notice of motions and other proceedings .... 1182-1207 
 
 Notice of appeals 1208-1220 
 
 Notice of taking depositions 1221-1256 
 
 Notice to produce books and-papers 1257-1292 
 
 Service 1293-1360 
 
 Return 1361-1385 
 
 Pleading 1386-1402 
 
 PRESUMPTION, 
 
 of knowledge conclusive from record 97 
 
 PRESUMPTIVE NOTICE, 
 
 distinction between and constructive notice 40 
 
 when dependent upon presumption of fact — actual, 
 
 See Actual Notice. 
 when dependent upon presumption of law — constructive, ■ 
 
 See CoNSTRUCTivB Notice. 
 PRICE, 
 
 inadequacy of, sufficient to put purchaser on inquiry . . 23, 24
 
 , INDEX. T83 
 
 PRINCIPAL AND AGENT, SECTION 
 
 See Agency. 
 See Agent. 
 PRINCIPAL AND GUARANTOR, 
 
 See Guarantor. 
 PRIORITY, 
 
 between, deeds as affected by registry 196-202, 256 
 
 simultaneous mortgages 197 
 
 as between original parties, priority subject to agreement 198 
 
 registration will not divest accrued rights 199 
 
 innocent purchaser not chai-ged with notice of, except by 
 
 the record 200 
 
 order of filing governs 201 
 
 deeds recorded in reasonable time after delivery, — suf- 
 ficient 202 
 
 PROCESS, 
 
 Original, publication of 1029-1085 
 
 general character of service by publication 1029 
 
 must conform to statute 1030, 1148 
 
 suits in which generally employed 1031 
 
 affidavit or declaration 1032 
 
 must aver jurisdictional facts 1033 
 
 should state that property of defendant within state . 1084 
 
 must state a cause of action . . , 1035 
 
 ground of attachment 1036 
 
 attachment of property 1037 
 
 requisites of affidavit in New York 1038 
 
 example of sufl[icient affidavit in California .... 1039 
 
 averment of " due diligence '' held sufficient .... 1040 
 
 difference in statutes 1041 
 
 conclusion of law not to be stated 1042 
 
 expression of opinion not sufficient 1043 
 
 information and belief 1044 
 
 sufficient statement of absence from state 1045 
 
 affidavit attached to other papers 1046 
 
 when sufficiency of, presumed 1047 
 
 not impeachable in collateral proceeding 1048 
 
 averments in pleading, same as in affidavit .... 1049 
 
 amendments not allowed after publication .... lO.IO 
 
 order of publication and notice 1051 
 
 who to make order 1052 
 
 must be by officer designated by law 1053 
 
 effect of change of order without authority . . . 1054 
 
 contents of order * . 1055 
 
 must contain sufficient recitals to inform defendant . 1056
 
 784 INDEX.* 
 
 PROCESS — Continued. Section 
 
 averment of attachment, in notice 1057 
 
 nature and amount of plaintiff's demand .... 1058 
 
 foreclosure and partition — description 1059 
 
 names of defendants 1060 
 
 unnecessary to mention statute 1061 
 
 order must be properly signed 1063 
 
 should state the return day 1063 
 
 publication 1064 
 
 in newspaper 1065 
 
 what is 1066 
 
 must be published in the one designated .... 1067 
 
 substitute for publication in 1068 
 
 must be for full time 1069 
 
 computation of time 1070 
 
 three calendar months 1071 
 
 three weeks successively 1072 
 
 last insertion four weeks prior to time .... 1073 
 
 six weeks' publication 1074 
 
 when period cannot be shortened 1075 
 
 days, weeks or months 1076 
 
 certain time or certain number of times . • . 1077 
 
 ten publications in ten weeks 1078 
 
 two weeks in daily paper 1079 
 
 proof of publication 1080 
 
 must be to satisfaction of court 1081 
 
 affidavit not conclusive 1083 
 
 divorce and alimony 1083 
 
 judgment binds property only 1084 
 
 not subject to collateral attack 1085 
 
 Original, hy which judicial proceedings instituted . 1135-1161 
 
 general nature of modern summons 1135 
 
 importance of due service 1136 
 
 when personal notice required 1137 
 
 rule applies to all judicial or quasi-judicial proceedings . 1138 
 
 assessment of damages to property H39 
 
 decree in chancery, summary proceedings .... 1140 
 
 judgment against sureties 1141 
 
 divorce and alimony 1143 
 
 in actions before justices of the peace 1143 
 
 actions in rem 1144 
 
 annulling certificate of purchase 1145 
 
 knowledge will not answer as a substitute for notice . 1146 
 
 must be written or printed 1147 
 
 what notice or summons should contain . . . 1148-1157 
 
 should state time and place 1149
 
 INDEX. i S'O 
 
 PROCESS — Continued. Section 
 
 when but one cause of action stated 1150 
 
 scire fadas — citation and copy of petition required 1151 
 
 should contain names of defendants 1152 
 
 omission of, held immaterial 115i> 
 
 mere irregularity in stating, will not defeat . . . 1154 
 
 immaterial variations and omissions 1155 
 
 requirements of different states as to certainty . . 1156 
 when the purpose of the action to be stated . . . 1157 
 infant defendants, sti'ictness required in the inter- 
 est of 1158 
 
 when returnable 1159 
 
 substantial and technical defects, how jurisdiction af- 
 fected by 1160 
 
 jurisdiction defined 1161 
 
 service of. 
 
 See Service. 
 PROMISE, 
 
 subsequent to dishonor of biU or note, considered as waiver 
 
 of notice 957-975 
 
 conditions of waiver ■ 957 
 
 made without knowledge 958 
 
 express or imphed waiver 959 
 
 mipUed 960 
 
 promise to " see it paid " 961 
 
 recitals in contract acknowledging bill 963 
 
 must be unequivocal 963 
 
 admissions to strangers not sufficient 964 
 
 when regarded as evidence of notice 966 
 
 either waiver or admission of due notice ' 969 
 
 burthen of proof 970 
 
 prima facie evidence of diligence 971 
 
 evidence of knowledge of laches 972 
 
 onus cast upon the holder . 973 
 
 principles governing the question 974 
 
 PROOF, '"^^ 
 
 of publication 1080-1082 
 
 must be satisfactory to court 1081 
 
 affidavit not conclusive 1082 
 
 PROPOSALS, 
 
 notice of acceptance of, 
 
 See Acceptance. 
 PUBLICATION, 
 
 of notice of dissolution, when, and when not, effectual 504-519 
 
 not available against those who have had prior dealings . 504 
 50
 
 786 INDEX. 
 
 PUBLICATION — Continued. . Section 
 
 insufficient, though printed near advertisement of old 
 
 customer 505 
 
 reading paper containing announcement, not conclu- 
 sive 506 
 
 inference drawn from publication 507 
 
 what ai-e prior dealings 508 
 
 discounting notes 509 
 
 honoring successive drafts 510 
 
 renewal of accommodation i^aper 511 
 
 single purchase may be sufficient 512 
 
 constructive notice to those who have had no prior deal- 
 ings 513 
 
 no fixed rule as to time of publication 514 
 
 should be in newspaper 515 
 
 where papers should be published 516 
 
 selection of paper 517 
 
 maimer of, open to inquuy 518 
 
 English and American docti'ine — publication not indis- 
 pensable 519 
 
 of notice, will not limit carrier's liability 533 
 
 of notices 1049-1134 
 
 See Process. 
 " Judicial Sales. 
 
 " NoN- Judicial Involuntary Sales. 
 " Miscellaneous Proceedings. 
 
 PUBLIC POLICY, 
 
 the foundation of doctrine of lis pendens 338 
 
 PURCHASERS, 
 
 Notice to 48-377 
 
 when actual . 12 
 
 to use diligence when put upon inquiry 17 
 
 of equitable interest, with knowledge of legal title in another 18 
 
 with notice of vendor's lien 19 
 
 from mortgagor 20 
 
 inadequacy of price will put upon inquuy 23, 24 
 
 relationship between the parties, ground for inference of 
 
 notice 25 
 
 affected with notice that property belongs to partnership . 26 
 
 put upon inquiry by information 27 
 
 may disregard vague statements 29 
 
 protected after fruitless inquuy 34 
 
 pendente lite, bound by notice constractively 45 
 
 See Lis Pendens. 
 
 constructively notified by recitals in title papers .... 46
 
 INDEX. To i 
 
 PURCHASERS — Continued. Section 
 
 Difference in effect of notice to, of different kinds of property 
 
 or securities 48-94 
 
 division of subject 48 
 
 of real property, by what kind of notice affected . . . 49-66 
 See Real Estate. 
 
 without, from purchasers with, notice 61 
 
 with, from purchaser without, notice 62 
 
 when original mala fide purchaser not protected ... 63 
 
 with notice of umregistered conveyance ■ . 64 
 
 See Unregistered Instruments. 
 
 of chattels, notice to 67-78 
 
 See Chattels. 
 of negotiable securities, how affected with notice . . . 80-94 
 
 time when notice must be given to affect 92a 
 
 See Negotiable Instruments. 
 of real estate, affected Avith notice by registry of prior deed 97 
 
 See Registration of Instruments. 
 to take advantage of failure to record deed, must be for value 226 
 put upon inquu-y by knowledge of possession by one claim- 
 ing adversely to gi'antor, 
 
 See Possession. 
 notified by recitals in title papers, 
 
 See Title Papers. 
 of bills of lading, bona fide, entitled to protection . . 472, 473 
 at judicial sale, with notice 1087 
 
 QUIT, 
 
 notice to, when given by agent 698-701 
 
 written or verbal 699 
 
 effect of subseqtient ratification 700 
 
 unauthorized when given, vaUd only from ratification . 701 
 reciprocal right between landlord and tenant, 
 See Landlord and Tenant. 
 
 QUITCLAIM DEED, 
 
 registration of, is constructive notice only of what I'ecord 
 shows 204 
 
 RAILROADS, 
 
 when their liability as common carriers may be fixed by 
 
 notice 451-480 
 
 See Carriers and Other Bailees. 
 when they may be affected with notice of vendor's lien on 
 
 goods 457^80 
 
 See Stoppage in Transitu.
 
 78S INDEX, 
 
 "RAILROADS— Continued. Sectiow 
 notice limiting the liability of, as insurers of goods car- 
 ried 531-560 
 
 See Carriers. 
 termination of responsibility of, by notice to consignee . 563-577 
 . See Arrival. 
 
 RATIFICATION, 
 
 by principal, of acts of agent 667 
 
 with notice, binds principal 668 
 
 effect of sUent acquiescence 669 
 
 of notice to agent, — when validity depends upon ... 691 
 
 of act of agent in giving notice for principal 700 
 
 valid only from time of principal's approval .... 701 
 
 of acts after authority revoked 671a 
 
 REAL ESTATE, 
 
 purchasers of, affected with notice, actual or constructive, 
 
 of adverse claims 49-66 
 
 when subsequent purchase, in bad faith 50 
 
 purchase with notice of prior marriage settlement . . 51 
 
 parol contract to convey 53 
 
 vendor's hen — vendee required to perform in lieu of his 
 
 grantor 53 
 
 an adopted son's equity arising out of contract made at 
 
 time of adoption 54 
 
 prior and subsequent contracts to convey 55 
 
 possession of title deeds as notice of possessor's rights . 56 
 
 purchaser, with knowledge of ti'vist, becomes trustee . 57 
 
 mortgagee, with knowledge of trusts 58 
 
 notice to trustee, to affect cestui que trust 59 
 
 notice prior to payment, sufficient 60 
 
 purchaser without, from pui'chaser with, notice ... 61 
 
 piirchaser with, from purchaser without, notice ... 62 
 
 repurchase by original mala fide purchaser .... 63 
 
 unregistered conveyances of 64 
 
 how subsequent purchasers may be affected with notice of 65, 66 
 See Unregistered Instruments. 
 notice of prior conveyances from recitals in deeds. 
 See Title Papers. 
 
 RECITALS, 
 
 in deeds, effect of as notice to purchasers, 
 
 See Title Papers. 
 what sufficient in published notice of suit .... 1055-1059 
 See Process.
 
 INDEX. 789 
 
 RE(X)RD, Section 
 
 of conveyances by grantor, prior to his acquisition of title . 214 
 will not affect subsequent purchaser, who takes without 
 
 further notice 215 
 
 contrary doctrine examined 216 
 
 REFERENCE, 
 
 notice of ^ . . . . 1204 
 
 REGISTRATION OF INSTRUMENTS, 
 
 notice by 95-272 
 
 the general scope and operation of the statute . . , 95-112 
 
 provided for by statute 95 
 
 object of American registry laws to protect bona fide pur- 
 chasers ..... 96 
 
 registration notice to subsequent purchasers .... 97 
 
 must be properly of record 98 
 
 prerequisites to valid registry 99 
 
 subscribing witnesses 100 
 
 when instrument to be filed 101 
 
 consequence of delay in filing 102 
 
 exceptional legislation 103 
 
 English and Irish registry acts 104 
 
 equitable mortgage 105 
 
 registry of marriage settlement 106 
 
 Irish act 107 
 
 registered mortgage and unregistered will .... 108 
 registered legal mortgage and unregistered equitable 
 
 mortgage 109 
 
 memorandirm of " fiirther change" 110 
 
 agreement to mortgage Ill 
 
 acknowledgment of execution 112 
 
 recordable instruments 113-123 
 
 what instruments should be recorded 113 
 
 reservation of right of way 114 
 
 deed of assignment 115 
 
 assignment of lease 116 
 
 assignment of mortgage 117 
 
 consideration . . 118 
 
 instruments not recordable 119 
 
 assignment for benefit of creditors 120 
 
 certificate of emancipation 121 
 
 executory contracts 122, 123 
 
 Btatutory prerequisites to recording 124-146 
 
 requirements of the statute must be complied with . . 124 
 
 necessity for acknowledgment 125-136 
 
 See ACILNOWLEDGMENT.
 
 790 INDEX. 
 
 REGISTRATION OF INSTRUMENTS — Cojih'nwed. Section 
 
 attestiug witnesses 137 
 
 when two requii'ed 138 
 
 witnessed by one, insufficient 139 
 
 defective execution held immaterial 140 
 
 record iuoiierative wnitliout delivery 141 
 
 dehvery after recording 142 
 
 effect of 143 
 
 delivery to the recorder for the gi-antee 143a 
 
 must be recorded by jDroper officer 144 
 
 by officer de facto . 145, 146 
 
 errors in the record 147-173 
 
 effect of 147 
 
 in description 148 
 
 effect of filing, and subsequent error in recording . . 149 
 to whom is the officer responsible for errors .... 150 
 
 different constiiiction of the statute 151 
 
 tbe notice unaffected by eiTors in recording .... 152 
 
 partial omission 153 
 
 entu'e omission 154 
 
 early American authorities 155, 156 
 
 destruction of the records does not affect the notice . 157 
 effect of error in amount secured by mortgage . . 158 
 
 error in description of property 159 
 
 fraudulent concealment by officer 160 
 
 immaterial errors 161 
 
 princiijle governing eiTors in the record 162 
 
 eiTors in the original, and eiTors of the recorder, dis- 
 tinguished 162 
 
 faUiu-e to record in proper time 168 
 
 the index 164-173 
 
 See Index. 
 errors by the party filing the instrument .... 174r-195 
 
 misleading errors in original 174 
 
 insufficient description 175 
 
 errors in numbering 176 
 
 description of chattels 177 
 
 description in mortgage, of debt due 178, 372, note 3 
 
 conditions insufficiently expressed 179 
 
 what degree of certainty held sufficient . 180, 181 
 
 mortgage securing future advances 182 
 
 descrijjtion which may be rendered certain by in- 
 quiry, sufficient 183 
 
 errors by wliich purchasers not misled, held imma- 
 terial 184, 185 
 
 instruments should be filed in their true character . 186
 
 INDEX. 791 
 
 REGISTRATION OF INSTRUMENTS — C'o?if/nHecZ. Section 
 
 deed with defeasance should be filed as mortgage . 187 
 should be recorded as mortgage, and not as deed 
 
 of conveyance 188 
 
 same rule applies where defeasance is by parol . 189 
 sheriff's deed, recorded as mortgage, will not oper- 
 ate as constructive notice 190 
 
 record of secret mortgage 191 
 
 must be filed in proper county 192 
 
 effect of filing in wrong county 193 
 
 deposit of chattel mortgage in wrong town . . . 194 
 change of county subsequent to filing wiU not 
 
 affect registry 195 
 
 conflicting titles affected by priority of registration 196-230 
 order of priority between deeds as affected by regis- 
 tration 196 
 
 See Priority. 
 
 reasonable time for filing instrument 202 
 
 subsequent purchasers alone affected by registration 203 
 
 record of quitclaim deed 204 
 
 the instrument must be in the chain of title . . 205-213 
 
 See Chain of Title. 
 instruments filed for record prior to acquisition of 
 
 title 214-216 
 
 See Record. 
 piu'chaser from heu-s without notice of unrecorded 
 
 deed from ancestor 217-223 
 
 See Heirs. 
 record of conveyances between strangers, void as no- 
 tice 223 
 
 of instruments affecting chattels, foUows property . 224 
 
 time given for registration of deeds 225 
 
 advantage taken of failure to register only by pur- 
 chaser for value 226 
 
 record of voluntary deed effective 226 
 
 assignee for benefit of creditors 227 
 
 creditor purchasing at execution sale 228 
 
 notified by registry prior to sale 229 
 
 interest of mortgagee not affected by bidding at 
 
 execution sale 230 
 
 other notice considered in connection with registra- 
 tion 231-272 
 
 actual notice of unregistered deeds 231-253 
 
 the extent to wliich affects subsequent purchaser . 231a 
 See Unregistered Instruments.
 
 792 INDEX. 
 
 EEGISTRATION OF INSTEUIMENTS— Confmwed. Section 
 
 unregistered deeds and judgments, 
 
 See Judgments. 
 
 instruments affecting an equitable interest . . . 254 
 
 pffect of withdrawing from files before recording . 255 
 
 RELATIONSHIP, 
 
 between parties to contract, sufficient to put purchaser on 
 
 inquiry 25 
 
 RESIDENCE, 
 
 respective places of, of parties to bills and notes, as it affects 
 the manner of giving notice of dishonor .... 843-929 
 See Bills and Notks. 
 
 in one place, and place of business in another .... 852 
 
 what is place of 854 
 
 need not be domicile 855 
 
 having notice of dishonor at 856 
 
 notice may be served at, or at place of business .... 863 
 
 RETURN, 
 
 the, by which proof of service is made 1361-1385 
 
 nature and pm-pose of, form and sufficiency 1362 
 
 when name of officer not used 1363 
 
 sei-ved without state 1364 
 
 should show comphance with statute 1365 
 
 to the proper term 1366 
 
 contents of 1367, 1368 
 
 immaterial errors 1369 
 
 defects cured by recital in judgment 1370 
 
 judgment by default on insufficient, void .... 1371, 1372 
 
 contradicted by the record 1373 
 
 examples of defective 1374 
 
 what deemed sufficient 1375 
 
 of service on corporation 1376 
 
 inference from general language of 1377 
 
 cannot be contradicted 1378 
 
 exception to above 1379 
 
 presumptions in favor of return 1380 
 
 may be amended 1381 
 
 aided by presumption 1382 
 
 aided by parol evidence 1383 
 
 aided by contents of bUl 1384 
 
 confficting views as to impeaching 1385 
 
 RIGHT OF WAY, 
 
 agreement reserving should be recorded 114
 
 INDEX. ' T93 
 
 SALES, Section 
 
 conditional, of personal property 72-75 
 
 See CorroiTiONAL Sales. 
 judicial, 
 
 See Judicial Sales. 
 non- judicial involuntary. 
 
 See NoN-JuDiCL\.L Involuntary Sales. 
 
 by guardians and curators, notice by publication . . . . 1128 
 
 by executors or administrators 1129, 1130 
 
 SCIENTIFIC FACTS, 
 
 of which courts take judicial notice 1416 
 
 SEALS, 
 
 official, judicially noticed 1413 
 
 SECRET INSTRUCTIONS, 
 
 to broker will not affect purchaser in good faith .... 70 
 
 SERVANT, 
 
 notice to, dissolution of partnership 503 
 
 occupying premises of master, not entitled to notice to quit 595 
 SERVICE, 
 
 of different kinds of notices 1293-1860 
 
 division of subject . 1294 
 
 by whom served 1295-1298 
 
 not by party in interest 1296 
 
 by unofficial person 1297 
 
 when the officer whose duty to serve is a party . . 1298 
 
 notice of motions, etc 1299 
 
 to take depositions . 1243, 1300 
 
 upon whom served — depositions 1301 
 
 original process, on agent 1302 
 
 upon foreign corporations 1303 
 
 statute for benefit of residents 1304 
 
 reasonableness of rule 1305 
 
 federal judiciaiy act in relation to 1306 
 
 United States circuit courts have Umited jurisdic- 
 tion 1307 
 
 how jurisdiction obtained in federal courts . . 1308 
 
 how corjiorations served 1309 
 
 upon ticket agent 1310 
 
 where statute, directory and permissive . . . 1311 
 
 on municipal corporations 1312 
 
 on city clerk, insufficient 1313 
 
 upon partners 1314 
 
 principal defendant 1315 
 
 upon minors 1316 
 
 upon convicts 1317
 
 TOi INDEX. 
 
 SERVICE — Continued. Section 
 
 upon party by wrong name 1318 
 
 vai-iance between name in process and other papers 1319 
 
 several defendants in different counties 1320 
 
 upon attorney 1331 
 
 in suit before justice of peace 1322 
 
 should not be after his connection with case has 
 
 ceased 1323 
 
 "due" notice -. 1324 
 
 application for injunction 1325 
 
 construction of " reasonable notice" 132(5 
 
 time iixed by statute 1327 
 
 admissions 1328 
 
 notice of motion for new trial 1329 
 
 time computed from date of service 1330 
 
 how computed 1331 
 
 summons must be for full time 1332 
 
 manner and mode of 1334 
 
 personal 1335 
 
 leaving at place of abode, not sufficient 1336 
 
 pei-sonal upon attorney 1337 
 
 strict requirements as to summons 1338 
 
 different modes of j)ersonal service 1339 
 
 by reading original, or delivering writing , . . 1340 
 
 written, must be by delivery 1341 
 
 rule deduced from foregoing 1342 
 
 at place of abode 1343, 1344, 1347-1350 
 
 leaving at residence or place of business, good only 
 
 when prescribed by statute 1345 
 
 in what cases officer may elect 1346 
 
 leaving at place of residence 1348 
 
 with member of family to which party belongs • 1348 
 
 must be at present place of abode 1349 
 
 necessity for strict construction 1350 
 
 actions against property by posting, etc 1351 
 
 personal in foreign state 1352 
 
 proof of 1353 
 
 effect of acknowledgment or waiver 1354 
 
 by mail 1355 
 
 chancery proceedings in United States courts . . . 1356 
 
 on board foreign vessel 1357 
 
 non-resident, temj)orarily within jurisdiction . . . 1358 
 
 Sunday or legal holiday 1353 
 
 reference to other chapters 1360 
 
 of notice to quit 640 
 
 may be waived . . . . , 641
 
 INDEX. 795 
 
 SERVICE — Continued. Sectiox 
 
 of notice of dishonor of commercial paper .... 843-929 
 See Bills and Notes. 
 
 of notice of trial 1170-1173 
 
 of notice of appeal, upon attorney 1209 
 
 personal not always required 1217 
 
 of notice to take depositions 1243-1248, 1251 
 
 of notice to produce books and papers at the trial . 1287-1292 
 
 personal, not indispensable 1292 
 
 SPECIAL ASSESSMENTS, 
 
 notice of, by publication 1124 
 
 STATE, 
 
 name of, should be in address of notice by mad .... 927 
 
 STATUTES, 
 
 public, domestic, of which courts take judicial notice . . 1404 
 
 foreign, not judicially noticed 1405 
 
 local and special, not judicially noticed 1408 
 
 STOCKS, 
 
 notice of infirmities of title to, from recital in will . . . 333 
 
 STOPPAGE IN TRANSITU, 
 
 by notice to carrier 457-480 
 
 object of, to affect consignee tlu'ough carrier .... 457 
 
 inquiry confined to affect upon can-iers 458 
 
 time of giving notice 459 
 
 during traiisit — when transit begins and ends . . . 460 
 
 before arrival and demand of consignee 461 
 
 aiTival and demand to be concurrent facts .... 462 
 
 effect of notice, to give vendor right of possession . . 463 
 
 end of transitus by delivery 464 
 
 fact of delivery determined by intent 465 
 
 effect of possession by consignee 466 
 
 views of Chancellor Kent 468 
 
 storage in government warehouse 469 
 
 notice to employee of carrier 470 
 
 responsibility of carrier 471 
 
 effect of assigning bill of lading 472 
 
 must be to ?>ou« _/!rfe purchaser 473 
 
 end of transit by interception 474 
 
 vendor's right, takes precedence of judgment lien . . 475 
 
 by whom notice may be given 476 
 
 by factor 477 
 
 by party to conti-act respecting goods 478 
 
 by owner's guarantor 479 
 
 by agent 480
 
 796 lA'DEx. 
 
 STRANGERS, Section 
 to the title, record of conveyances between, will not affect 
 purchasers 223 
 
 STREETS, 
 
 notice of opening 1126 
 
 notice of dangerous condition of 480gf 
 
 SUBSEQUENT PURCHASER, 
 
 with actual notice 231a 
 
 See PUKCHASER. 
 
 SUIT, 
 
 when commenced so as to operate as lis pendens . . . 348, 349 
 
 must be continuously prosecuted 357-359 
 
 notice of commencement of, 
 
 See Process. 
 SUMMONS, 
 
 See Process. 
 SUNDAY, 
 
 or legal holiday, service of notice on 1359 
 
 party to bill or note not bound, notice given on . . . 818-820 
 
 SURETIES, 
 
 entitled to notice of proceedings to obtain judgment against 
 
 them 1141 
 
 SURRENDER, 
 
 of property held under tenancy from year to year . . . 642 
 by parol and acceptance, effect of 643 
 
 TAX SALES, 
 
 notice of by publication 1106-11 "^ 
 
 See Non-Judicial Involuntary Sales. 
 TENANCY, 
 
 nature of, requiring notice to quit , 
 
 which does not require notice to quit 
 
 from year to year, proof of 
 
 by the quarter „ , 
 
 from month to month 611 
 
 different kinds of, uncertain 613 
 
 from week to week 614 
 
 See Landlord and Tenant. 
 TENANT, 
 
 notice to quit, to and by . . .* 578-650 
 
 See Landlord and Tenant. 
 TERM, 
 
 of court to be designated in notice of trial .... 1168, 1169 
 
 of which judicial notice is taken 1414 
 
 to which process returnable, 
 
 See Process. 
 See Return.
 
 INDEX. 797 
 
 TIME, Section 
 
 when notice must be acquired to affect purchasers . . . 92a 
 of recording instruments, to be operative as notice . . 196-202 
 
 given for registration of deeds 203 
 
 within which notice of unrecorded deed given, to affect 
 
 purchaser of real estate 263 
 
 to attaching creditor 264 
 
 when too late 265 
 
 after purchase at execution sale 266 
 
 in time if before legal title conveyed 367 
 
 not necessarily within limits prescribed by statute . . 268 
 after death of grantor, too late as against creditors . . 269 
 
 of giving notice of acceptance of guaranty 406 
 
 of giving notice to quit 607 
 
 regulated by statute 608 
 
 expiration of, must be at commencement of new term . 609 
 
 tenancy by the quarter 610 
 
 from month to month 611 
 
 principal and accessorial subject of demise 613 
 
 of acquhing knowledge by agent, to affect principal . 687-690 
 For giving notice, 
 
 of dishonor of commercial paper 776-837 
 
 See Bills and Notes. 
 
 reasonable time required 794 
 
 no exception to rule requiring 827 
 
 of publication of original process 1069-1079 
 
 of judicial sales 1100-1102 
 
 of non-judicial sales 1111-1116 
 
 and place to be stated in original process 1149 
 
 Of notice of trial 1178-1181 
 
 Of notice of motions and otlier proceedings 1301 
 
 Of notice of appeal 1315, 1316 
 
 of taking depositions, should be mentioned in notice . . 1230 
 
 Of notice to take depositions 1233-1343 
 
 See Depositions. 
 
 Of notice to produce books and papers 1386-1888 
 
 Of service, 
 
 See Seevice. 
 
 TITLE PAPERS, 
 
 Notice from recitals in 307-336 
 
 general statement of doctrine 307 
 
 equivalent to actual notice 15,^ 308 
 
 treated as constructive notice 46, 309 
 
 modification of the rule •' 310 
 
 recitals in original patent 311, 312
 
 798 ixDEx, 
 
 TITLE PAPERS — Continued. Section 
 
 sufficient if recitals lead to knowledge 313 
 
 must be in same transaction 314 
 
 should be in same chain of title 315 
 
 recitals reasonably cei-tain 316, 317 
 
 example of general recital 318 
 
 uncertainty of description 319 
 
 striking peculiarities of recitals 320 
 
 in will .• 331 
 
 limitations upon effect of recitals 322 
 
 recital of a trust 323 
 
 may be from recitals in variety of instraments — will 324 
 
 insti'uments collateral to the chain of title .... 324 
 
 in mortgages 325 
 
 in books of i-ecord 326 
 
 in conveyance by statute 327 
 
 in deed — facts which may be thus brought home to 
 
 purcliaser 328 
 
 in contract to convey 329 
 
 in deed — of vendor's lien 330 
 
 who affected 331 
 
 different kinds of j)roperty 332 
 
 stocks — transferred by executor 333 
 
 personal property 334 
 
 inquu-y excited by, should extend to examination of 
 
 papers 335 
 
 deed of real estate containing bill of chattels . . . 336 
 TORTS, 
 
 notice by which liability for may be fixed .... 480gr-480A; 
 
 notice of, to agents and servants 695 
 
 TOWNS, 
 
 incorporation of judicially noticed 1411 
 
 TRANSITU, 
 
 stoppage in 457-480 
 
 See Stoppage in Transitu. 
 TREATIES, 
 
 public, judicial notice taken of 14C6 
 
 TRIAL, 
 
 Notice of 1162-1181 
 
 required by statute 1162 
 
 example from New York Code • 1163 
 
 English rule 1164 
 
 should not be vague or misleading 1165 
 
 should specify the suit 1166 
 
 may be noticed for trial by either party 1167
 
 INDEX. 799 
 
 TRIAL — Continued. Section 
 
 sufficiently explicit as to time 1168 
 
 party notified may safely rely on time designated . . 1169 
 
 served before issue joined 1170 
 
 does not depend upon discretion of court 1171 
 
 service upon party or attorney 1172 
 
 effect of continuance 1173 
 
 effect of amendment after notice 1174 
 
 ■waived 1175 
 
 judgment attacked for want of 1176 
 
 must be for substantial defects 1177 
 
 statement of wrong day of commencement of term, 
 
 not fatal . . . . ' 1178 
 
 failure to place on calendar — judgment set aside . 1179 
 
 Wisconsin Code 1180 
 
 time under English rule 1181 
 
 TROVER, 
 
 actions of, wlien notice to produce books and papers unnec- 
 essary 1263 
 
 TRUSTEE, 
 
 insolvency of, should put purchaser from, on inquiry . . 32 
 
 purchaser from, decreed to perform 57-59 
 
 when member of partnership, notice to, will affect partners 59 
 
 TRUSTS, 
 
 purchaser with implied notice of 21, 22 
 
 sufficient to affect his conscience, takes place of original 
 
 trustee 57-59 
 
 notice of, from recitals in title papers. 
 See Title Papers. 
 
 UNREGISTERED INSTRUMENTS, 
 
 can only be taken advantage of by purchaser for value 226, 227 
 good against subsequent purchaser at execution sale . 228, 229 
 
 actual notice of, will bind subsequent purchaser .... 231 
 purchaser at execution sale protected against, by good faith 
 
 of execution creditor 232 
 
 equitable interference in favor of holder of 233 
 
 recorded, after adverse levy, not i^refeiTed to purchaser at 
 
 execution sale 234 
 
 good against creditors with notice 235 
 
 notice of, to be effectual, must be subsequent to delivery . 236 
 
 judgment liens preferred to 238 
 
 take precedence if registered prior to execution sale . . 239 
 title under, superior to judgments subsequently rendered . 240 
 purchaser without notice of, may give good title to subse- 
 quent purcha.ser with notice 241, 242
 
 800 INDEX. 
 
 UNREGISTERED INSTRUMENTS— Coyt^muecZ. Section 
 
 but not to fraudulent grantor, or original purchaser with 
 
 notice 243 
 
 conflicting decisions, as to what is sufl&cient notice of . . 244 
 
 express notice required 245 
 
 either actual or constructive held sufficient 246 
 
 See Possession. 
 See Title Papers. 
 See Lis Pendens. 
 
 cases holding notice of, ineffectual against the record . . 248 
 
 cases holding implied notice sufficient 249-251 
 
 should amount to imputation of fraud 252 
 
 withholding from record no fraud upon those having 
 
 knowledge 253 
 
 effect of withdrawing from files before recorded .... 255 
 
 recorded prior to subsequent j)urchase 256 
 
 vague information of, insufficient to affect subsequent pur- 
 chaser 258 
 
 VAGUE STATEMENTS, 
 
 of facts affecting title to real estate, disregarded by pur- 
 chaser 29, 258 
 
 VENDOR'S LIEN, 
 
 purchaser with notice of 19 
 
 decreed to perform in lieu of original contracting party . 53 
 notice of, to pui-chasers, from recitals in title papers . 329, 330 
 
 from pendency of action to foreclose 342a 
 
 VOID NOTE, 
 
 notice of dishonor of, unnecessary 1028 
 
 VOUCHER, 
 
 to waiTanty, 
 
 See Warranty. 
 
 WAIVER, 
 
 of hen on property, by plaintiff, as against purchaser pen- 
 dente lite 367 
 
 of notice of dishonor of commercial paper .... 930-975 
 
 general character of 930, 931 
 
 may be antecedent or subsequent to dishonor .... 932 
 antecedent waiver in writing — examples .... 933-938 
 
 may be verbal 939 
 
 estabUshed by circumstances 940-956 
 
 by subsequent promise to pay 957-975 
 
 of notice of trial . 1175
 
 INDEX. SOI 
 
 WAIVER — Continued. ' Section 
 of notice of motions, and other court proceedings by appear- 
 ance 120:5 
 
 of notice of appeals 1220 
 
 of notice to take depositions 1253-1255 
 
 of notice to produce boolis and papers, to be offered in evi- 
 dence 1284 
 
 of defective service of process by general, but not by special 
 
 appearance 135S, 1859 
 
 of notice to quit 641-G44 
 
 offering to let will not amount to 044 
 
 of rights under notice to quit 648 
 
 will not be presumed from acceptance of rent by unau- 
 thorized person 649 
 
 nor from mere perm.ission to remain after expiration of 
 original term 650 
 
 WAIVER AND EXCUSE, 
 
 of demand and notice to guarantor.) 426, 427 
 
 of notice of arrival of goods by common carrier , . . . 576 
 
 of notice, should be averred in pleading 1397 
 
 of notice of dishonor of commercial paper .... 930-1028 
 See Bills and Notes. 
 See Waiveu. 
 See Excuse. 
 
 WARD, 
 
 when a party to bill or note, may give notice of dishonor . 727 
 when notice may be given to 773 
 
 WARRANTY, 
 
 of title, notice of breach of 480c-48Qf 
 
 the remedy that depends on notice 480(^ 
 
 form and sufficiency of notice 4S0ri 
 
 waiver of notice 4S0s 
 
 by whom given 480/ 
 
 WIFE, 
 
 affected by husband's knowledge, when acting as her agent 679 
 confined to transactions in which he acts for her . . - 630 
 
 W^ILLS, 
 
 registration of, operating as jiot'ce to purchasers ... lOS 
 
 notice from recitals in 334, 333 
 
 WITHDRAWAL, 
 
 of offer, notice of, before acceptance will bo efce^tual . . 385 
 
 WITNESSES, 
 
 subscribing to deed, necessary to entitle to registry . 100, 137-139 
 need not be all named in notice to take depositions . . . 1227 
 51
 
 802 INDEX. 
 
 WRITING, Section 
 
 contents of, conclusively presumed to be known to party 
 
 executing same 43 
 
 notice by agent may be in, or verbal 699 
 
 original process required to be in 1147 
 
 notice of appeal to be in 1209 
 
 notice of taking depositions, generally in 1222 
 
 notice of dishonor of commercial paper, generally in . 831, 832 
 
 when to distant parties, should always be 833
 
 OEC 5 19B^ 

 
 iiiiiiiimir-^ 
 
 D 000 955 049