A TREATISE OFON SOUS OF TEE OENERAL PRINCIPLES OF THE LAW. WHETHEB OF A LEGAL, OR OF AN EQUITABLE NATURE, INCLDOINQ THKIK EELATIOI^S A]^[D APPLIOATIO]^ ACTIONS AND DEFENSES IN GENERAL, WHETHSR IN COURTS OF COMMON LAW, OR COURTS OF EQUITY; AND EQUALLY ADAPTED TO COURTS GOVERNED BY CODES. By WILLIAM WAIT, OOUMSELOB AT LAV. VOLUME I. ALBANY: WILLIAM GOULD, Jr., & CO. Law Booksellers and Publisheks. 1885. T Bntered, according to act of Congress, in the year eighteen hundred and eeventy-seven. Bt WILLIAM WAIT, in the ofiBce of the Librarian of Congress, at Washington. •WEED, PARSONS AND COMPANY, PBINTEBS AND STEREOTYPBRe ALBANY, M. Y ;,'iorted cases should be cited; it will be sufficient to give a full variety of principles amply sustained by the authorities. Every student is required to study some series of text-books. This work will answer every purpose of a text-book while pur- suing his course of studies, and it will furnish information upon nearly all the titles of the law. But it will have a higher value still for him, because when he starts in the practice of his pro- fession, this will be one of the first works needed by him, and he will be entirely familiar with it, and ready to put its principles into practice as cases may require it. If every young lawyer had a full collection of English and American digests and text-books, he would have more informa- tion than can be given in a work like this. A moment's reflec- tion will show the cost of so large a number of books. To obviate this difficulty, this work covers most of the titles in the digests, or the subjects discussed in most of the text-books ; and the invariable rule is to present all of the important principles, fortified by a sufiicient number of reliable authorities. By doing this, the general rules of law or equity are furnished at a very moderate expense, and it may therefore be truly said that it furnishes the young lawyer with a loorking library. The skilled and successful veteran in the profession is familiar ■with much of the law, and may seldom be in doubt as to the true rule in any given case But while all this may be conceded, he may be called upon by the court or by the opposing counsel to viii PREFACE. furnish the authorities which sustain his position. This may sometimes be easily done, but there is no practitioner, however able, who does not sometimes find his equal, and who, at times, is not somewhat at a loss to meet the fully prepared points that are urged by experienced counsel against his position. When- ever this occurs, every available case is pressed into service, and this collection of authorities may sometimes prove of service, if examined and used. In short, loJiat the ablest lawyer wants is authorities to fortify such positions as he feels confident are correct in principle and established in law. It may be said, generally, that the whole business of the coun- try is transacted under some form of contract, express or implied. There are sales, and hiring and letting of property. There are bargains for labor and services. There are bills and notes, bonds and mortgages and other evidences of debts or contracts. And these are but a few of the numerous instances that could be men- tioned. And, to aid in an examination of the vast number of questions arising upon contract, most of the important titles of the law have been included in the plan. An examination of the volumes, as they are issued, is the true method of forming a cor- rect opinion as to their value. The number of actionable torts is very great, and the titles of the law relating to such actions are quite familiar to the profes sion. It is enough to say that this subject has received the most full and careful consideration. The common-law forms of action have all been very fully dis- cussed, and the latest authorities cited. Suits for equitable relief are of daily occurrence, and are steadily increasing in importance. The entire subject will be found to have been fully treated. Every available defense to an action at law is believed to be included in the part of this work devoted to defenses. The changes in the law have rendered these defenses much more available than formerly. And it is now common to inter- pose, by way of equitable defense, matters that once would have been the subject for a bill in equity. This subject has received PREFACE. ix the most lull and careful attention, and will be found very useful to the practitioner. The lawyer in active practice needs no work so much as one that will promptly and accurately answer the various and import- ant questions that daily arise. Every question may be satisfac- torily answered by taking time to examine it fully ; but time and the occasion are sometimes too pressing to permit extended investigations ; aad it is then that a reliable and extensive collec tion of principles, methodically arranged, will render the most valuable assistance. Every lawyer, of any experience, knows how often he is called upon to apply his legal learning to some case or question, and that, while he is clear as to the principle, he cannot, at the import- ant moment, find such cases as he desires to establish it. Again, he may feel quite confident as to the true rule, and yet have doubts, so that he is unwilling to advise or to act without the light of the authorities. So, too, he may have an impression that the law is opposed to his side of the case, while the reverse is actually the fact, as examination proves. It is in these, and similar instances, that this work is designed to meet the wants of the practitioner. And while there is no claim that every ques- tion will be answered, it will be found that the information given is very great. The perplexities of the office are generally quite sufficient ; but in the haste of the trial of an important cause, the most experi- enced lawyer is sometimes greatly in doubt. The continued changes in the aspect of the case, as the trial progresses, con- stantly present new and unexpected legal questions, which must be met at the moment. There is no adequate time for full exami- nation, and the most hasty research is all that is possible ; in such a case, a full and a most carefully-arranged system of jDrin- ciples is invaluable. This work has been written with this object constantly in view. And it is not merely in jury trials that it will be useful ; for, on trials before the court, before referees or arbitrators, or upon the B s PREFACE. argument of legal questions at special or general terms, the authorities collected will be equally available. From what has been said, it will be seen that the materials collected and arranged will serve as a ready-made brief upon a very great number and variety of questions. As the plan of the work proposes to give the greatest number and variety of legal principles in the least practicable space, and arranged in the most systematic order, the convenience of the work is sufficiently evident. It will not be bulky, and, therefore, it may always be conveniently taken wherever it may be useful to the owner. By means of the general arrangement of the chap- ters, and of a full table of contents, as well as a complete index, any principle contained in the work may readily be found. A comparison of this work with any other, or, indeed, with all others, is all that is required to determine whether it is not only much cheaper in a pecuniary point of view, but also to prove that it is equally useful in saving the time of the lawyer, which is often more valuable than money. It is a general remark that the laws are constantly changing, and, in some respects, the assertion is true. But, while statutes change the rules of practice, pleadings and evidence, and some- times the general rules of law, it will be found that the great hody of common-laio and equity prineiples rejnain unchanged^ and that the bulk of them are, in their very nature, unchangeable. This proposition is self-evident to every experienced lawyer or judge. There may be, and there actually is, a constant applica- tion of legal or equitable principles to new cases, and the great mass of the English and American reports are nothing more than cases to which settled legal and equitable rules were applied to particular facts and circumstances, either separately or in com- bination. The reports are really nothing more than illustrations of the application of such principles. Of course it is not intended to say that there are no new cases ; for new inventions and improvements, as well as the great changes in society, may sometimes require the creation of a new rule, and even here it will be found that the application of an old PREFACE. xi and well-settled principle to the same facts or circumstances is usually all that is required. The importance and the advantage of this permanence of principle is, that a work which is accur- ately written will he reliable for a long time in all its genera^ features^ and while new cases will continue to add new illus- trations of the rules, they loill not overturn or impair those already established. One of the most striking proofs of this fact is found in the constantly increasing volumes o "Leading Cases," many of which are among the oldest adjudications. They are simply old rules with new illustrations and occasional modifications. It is the aim of this work to select and furnish the largest practicable collection of important and well-settled principles, so that they may be permanently relied on, and at the same time to furnish the largest variety of useful illustra- tions. A collection of principles which have been settled by the differ- ent courts of the several States cannot fail to extend the acquaint- ance of the reader with reference to the adjudications of these courts. Such a comparison increases the general knowledge of the student, and greatly aids the lawyer and the judge in dealing with questions presented for settlement. The constant, tlie important and the intimate business relations existing between the citizens of the different States require, and they will ulti- mately accomplish a very general harrr.ony in all legal and equitable rules relating to commercial transactions. The ten- dency is toward harmony of decisions in the several States. The constant reference to other State authorities, and the careful examinations of the grounds upon which they are founded, tend to give strength to, as well as uniformity in, all American decisions. The English authorities have so long held an important place in our jurisprudence, that they will not be likely to be over- looked. But there has never been a time when they were so nearly like our own laws as at the present day. It is not now uncommon to find American authorities cited in the opinions of English judges ; but it shows the general tendency toward uni- xii PREFACE. formity in the establislimeiit of general legal and equitable prin ciples. No American work, upon general principles, can prop- erly omit due reference to so valuable illustrations as may be found in the English decisions. And they have accordingly been resorted to, in many cases, as additional authority upon new or important points. The more extensive the proper research^ the more reliable the conclusion as to the true rule to he followed. The increasing importance and the growing influence of the decisions of the United States courts have been very generally observed. In some cases they are obligatory, and in others their influence is limited to their value as expositions of general prin- ciples, and the reason upon which they are founded. It is quite evident, however, that their efl'ect is to consolidate and harmon- ize the decisions of the courts of the several States. A mere allusion to this subject is sufficient to show the importance of including many of these decisions in any general legal work. This work is submitted to the profession in the belief that it will be found useful to the student, the lawyer and the judge. Albany, Non. 21st, 1876. WILLIAM WAIT. TABLE OF CONTENTS. PART I. Of actions and defenses. In which they are considered gener- ally, and in their relations to remedies, whether of a legal oi of an equitable nature ; or whether founded upon contracts or upon torts ; upon legal duties or upon equities. PAOB. Ohaftsb I. Of rights and remedies and of the nature of actions 1 Title I. Of contracts and of torts 1 Article I. Of rights of persons and property in general 1 Section 1. Some general considerations 1 Section 2. Of contracts in general 3 Section 3. Of torts m general 4 Title II. Of the nature of actions 5 Article I. Of the necessity for actions, and of their origin 5 Section 1. Of laws ; their nature and objects 5 Section 2. Nature and definition of actions 9 Title III. Of some of the principal distinctions between legal actions and equitable suits 12 Article I. Of legal actions 12 Section 1. In general 12 Section 2. Legal actions relate to some act done or omitted, 13 Section 3. Compensation in damages, or not at all 14 Section 4. Affords no relief outside of the general rule .... 14 Section 5. Do not compel specific performance of contracts, 15 Section 6. Do not prevent the commission of wrongs 15 Section 7. Not adapted to complicated equitable cases .... 16 Section 8. Powers of the court terminate with the judg- ment and its enforcement 16 Section 9. Extension of remedies by common law 16 Section 10. Exceptions to general legal rules 17 Section 11. Tries questions of fact by a jury 18 Section 12. Legal remedies may exist and yet be insufficient, 19 Title IV. Of equitable suits 20 Article I. General principles 20 Section 1. Courts of equity act on the person independently of damages as a remedy 20 SectioL 2. Equity compels the performance of acts specific- aUy 21 XIV TABLE OF CONTENTS. Part I, Chap. I — Of rights and remedies and of the nature of actions — Cont. pagk. Section 3. Equity restrains the commission of wrongful acts, 23 Section 4. Equity generally acts without the aid of a jury. , 24 Section 5. Relief is granted or refused by courts of equity as justice requires 24 Section 6. Grants relief when the law does not 25 Section 7. Equity is governed by settled rules and principles, 26 Section 8. Equity devises new remedies 27 Section 9. Mode of relief differs more than principles of law 28 Section 10. General rules and maxims of equity 28 Title V. The union of legal and of equitable remedies 29 Article I. General principles 29 Section 1. Mode of uniting the two systems 29 Section 2. Principles of law and equity unchanged 30 Title VI. Of the right of action 35 Article I. Is a remedy given by law 35 Section 1. In general 35 Section 2. Are there sufficient existing facts 36 Section 3. Actions for injuries to person or personal rights, 37 Section 4. Actions relating to property, real or personal. . . 37 Section 5. Actions founded upon contracts 38 Section 6. Actions founded upon torts 38 Section 7. Is there an existing right of astion 40 Section 8. Cumulative or exclusive remedies by actioD .... 42 Section 9. Illegality of ground of action 43 Section 10. Of leave to bring or defend actions 43 Section 11. Of the parties to an action 43 Section 12. Of the pleadings in an action 44 Section 13. Of the evidence in an action 44 litle VII. Of the jurisdiction of actions 44 Article I. In general 44 Section 1. Definition and incidents 44 Article II. Common-law jurisdiction . 46 Section 1. Nature and origin 46 Article III. Constitutional and statutory provisions 46 Section 1. In general 46 Article IV. Jurisdiction of State courts 47 Section 1. In general 47 Article V. Superior and inferior courts 48 Section 1, In general 48 Article VI. Exclusive or concurrent jurisdiction 48 Section 1. In general 48 Article VII. Jurisdiction of subject-matter 49 Section 1. In general 49 Article VIII. Jurisdiction of the person 50 Section 1. In general 50 TABLE OF CONTENTS. ^v Part I, Chap. I — Of rights and remedies and of the nature of actions- Clmt pagi. Article IX. Disqualification of judges g. Section 1. In general 51 Article X. Jurisdiction in special cases 51 Section 1. In general . . - . Title VIII. Of remedies without action go Article I. Of preventive measures go Section 1. In general __ Article II. Defense bj resistance go Section 1. In general Article III. Defense of the person " * ' go Section 1. In general Article IV, Defense of personal property g3 Section 1, In general Article V. Defense of real property * g. Section 1. In general Article VI. Defense of others g, Section 1. In general >. Article VII. Apprehending criminals and wrong-doers 66 Section 1. In general ' ••••••« 56 Article VIII. Resistance of process, escapes, rescues, etc 57 Section 1. In general * ..» ° .... 57 Article IX. Recaption of person or property gg Section 1. In general " ' Section 2. Recaption of the person of a relative ." .' .' .' .' .[,, 59 Section 3. Recaption of personal property ....,..[ 58 ^ Section 4. Recaption or re-entry on real property.* ........ 59 Article X. Abatement of nuisance Section 1. In general Section 2. Private nuisance Section 3. Public nuisances Article XI. Distress and seizure of cattle go Section 1. In general Section 2. Damage feasant ^„ Article XII. Retainer, remitter and lien g^ Section 1. Retainer I^ Section 2. Remitter Section 3. Lien . ^* •••••......... 65 Article XIII. Redress by joint acts to the parties ' " " 66 Section I. In general '** " Section 2. Accord Section 3. Arbitration \ -^ Article XIV. Redress by operation of law gg Section 1. In general " -^ Section 2. Set-off [[ Sections. Marriage of debtor and creditor . /...... Z, 67 XTi TABLE OF CONTENTS. Flft I, Ohap. I — Of rights and remedies and of the nature of actiong — Oont. pa9B. Article XVI. Cautions in relation to resorting to these r&medies without action 67 Section 1. In general 67 Title IX. Of extraordinary remedies which are not usually termed actions 68 Article I. Of mandamus 68 Section 1. In general 68 Article II. Of injunctions 68 Section 1. In general 68 Article III. Of prohibition 68 Section 1. In general 68 Article IV. Of quo warranto 69 Section 1. In general 69 Article V. Of certiorari 69 Section 1. In general 69 OkAPnB II. Of some of the general principles of the law relating to ac- tions founded upon contract, upon equities, upon legal duties, or upon torts, or relating to defenses to actions 70 Title L Of some of the general principles of contracts 70 Article I. Definition 70 Section 1. In general 70 Article II. Of the different kinds of contracts and of their requi- sites 72 Section 1. Of contracts of record 72 Section 2. Of sealed contracts or specialties 72 Section 3. Of simple or unsealed contracts 72 Section 4. Of express or implied contracts 72 Section 5. Of executed and of executory contracts 74 Section 6. Of entire and divisible contracts 75 Section 7. Of contracts absolute or conditional 76 Section 8. Of joint and several contracts 76 Article III. Of the parties to contracts 77 Section 1. Of contracts made in person 77 Section 2. Of contracts by agents 77 Section 3. Of contracts by partners 78 Section 4. Of contracts by executors and administrators. . . 78 Section 5. Of contracts by trustees 78 Section 6. Of guardian and ward 79 Section 7. Of contracts by or with corporations 79 Section 8. Of joint-stock companies 79 Section 9. Of contracts by auctioneers 79 Section 10. Of contracts by brokers 79 Section 11. Of contracts by factors 80 Section 12. Of contracts by shipmasters 30 Section 13. Of the change of parties by novation or substi- tution 80 TABLE OF CO^^TENTS. xvii Part I. Chap II- General principles of the law, etc. - Continued. p^o^ Section 14. Of the change of parties by assignmea*., 81 Article IV. Of the assent of the parties to a contract 32 Section 1. Of the capacity to assent 82 Article V. What constitutes a valid assent to a contract 83 Section 1. Of assent in general go Section 2. Assent how affected by a mistake as to' the Yaw.' .' 84 Section 3. Assent how affected by mistake of fact 85 Section 4. Of assent obtained by duress .' ." " 85 Section 5. Of assent given, or contracts made by letters . .' . 86 Section 6. Of assent given, or contracts made by telegraph. .' 87 Article VI. Of the consideration of contracts 90 Section 1 A consideration is necessary 90 Section 2. Kinds of consideration 90 Section 3. Benefit or injury as a consideration 91 Section 4. Of the adequacy of the consideration 93 Section 5. Prevention of litigation as a consideration 95 Section 6. Forbearance as a consideration 96 Section 7, Assignment of a debt or a right of action arising upon contract 9g Section 8. Assignment or sale of property 99 Section 9. Services rendered, rewards offered 99 Section 10. Trust and confidence as a consideration 101 Section 11. Mutual promises as a consideration 102 Section 12. Considerations moving from third persons " or strangers jq3 Section 13. Gratuitous promises ; subscriptions and contribu- t'0"« 104 Section 14. Illegality of consideration 106 Section 15. Impossible considerations lOg Section 16. Considerations void in part 107 Seetion 17. Mere moral consideration IO7 Section 18. Of executed considerations ' * 109 Section 19. Of executory considerations HO Section 20. Of concurrent considerations HO Section 21. Of continuing considerations HO Section 22. Failure of consideration HI Section 23. Impeaching consideration HI Section 2i. Effect of a seal upon a consideration HI Article VII. Of the forms of contracts H2 Section 1. Of writing contracts H2 Section 2. Statute of frauds " h2 Section 3. Of the contents of a written contract . . 112 Section 4. Of certainty in contracts H3 Section 5. Signature to contract ^ H3 Section 6. Attestation of contract H3 Section 7. Recording contracts, etc .. . , H4 o xviii TABLE OF CONTENTS Part I, Chap II — General principles of the la^ , et- . — Co'uAnued. paor. Article VIII. Of the construction of ontra^s , 114 Section 1 , In general 114 Section 2. Construction of contracts is for the cocrt 114 Section 3. Construction, when for a jury 115 Section 4. The construction is the same at law or in equity, 116 Section 5. The intention of the parties controls 116 Section 6. Situation of parties, and evidence of surround- ing circumstances 118 Section 7. Construction to be reasonable 119 Section 8. Construction to be Hberal 120 Section 9. Construction to be favorable 120 Section 10. Words construed, according to their popular sense 121 Section 11. Technical words, how construed 122 Section 12. The construction to be upon the whole contract, 122 Section 13. Inconsistent clauses 123 Section 14. Against grantor, promisor, etc 124 Section 15. Greneral words 125 Section 16. Grammatical rules, how applied 125 Section 17. Transposition of words or clauses 126 Section 18. Presumptions, in relation to contracts 127 Section 19. Contracts, partly printed and partly written .... 127 Section 20. EflFect of custom or usage 128 Section 21. Of the law of place 129 Section 22. Of time of contract 130 Section 23. Of parol evidence, to explain or contradict con- tracts 131 Ktle IL Of actions founded upon torts 131 Article I. In general 131 Section 1. Rules, definitions and illustrations 131 Section 2. Novelty of actions 140 Section 3. Of fictitious or wager suits •. . . 141 Section 4. Illegal or wrongful acts ■ 142 Section 5. Rightful acts no ground of action 143 Section 6. Legislative authority for acts done 145 Section 7. Consent of injured party 146 Section 8. Demand or notice before suit brought 146 Section 9. Splitting demands 146 Section 10. Of damages not caused by wrongs not actionable, 146 Section 11. Of wrong without actual damage, though action- able 147 Section 12. Damages, when too remote and when not 148 Vtle III. Of principles relating to suits in equity 150 Article I. Rules and illustrations 250 Section 1. Courts of equity do not act when b 'egal remedy exists 150 Section 2. Equity fc Hows the law 152 TABLE OF CO^^TEIS'TS. xi^ Parti, Chap. II — General principles of the law, etc. — Continued. paob. Section 3. Where both parties are equally in the wrong, the court will not interfere 153 Section 4. Where the equities are equal, the law prevails. . . 154 Section 5. Prior in time, prior in right 155 Section 6. Equality is equity 155 Section 7. He who seeks equity must do equity 155 Section 8. Equity regards as done what ought to be done. . 156 Section 9. Union of law and equity 157 IRtle IV. Of some of the general principles relating to the defense of actions at law, or of suits in equity 157 Article I. Eules and illustrations 157 Section 1. Of defenses in general 157 Section 2. Of pleas or answers in abatement 158 Section 3. Pleas or answers in bar 158 Section 4. Demurrer 158 Section 5. Deny the facts , 159 Section 6. Admit the facts alleged, but set up matter in avoidance 159 Section 7. Counterclaim 159 Section 8. Set-off 159 Chaptbb III. Of actions founded upon, or relating to, accidents 160 Article I. Actions at law 160 Section 1. When an action lies 160 Section 2. When no action lies 160 Article II. Actions in equity, and when an action lies 162 Section 1. In general 162 Section 2. Lost instruments under seal 163 Section 3. Lost notes negotiable 165 Section 4. Forfeitures 167 Section 5. Executors and administrators, errors in pay- ments, etc 168 Section 6. Execution of powers 169 Section 7. Transfer of bills and notes 171 Article III. When no action lies 171 Section 1. Accident preventing fulfillment of contract 171 Section 2. Covenant to pay rent 171 Section 3. Negligence of party 172 Section 4. Equal equities 172 Section 5. Bona fide purchaser . 172 Ohaptxb 4. Of actions relating to, or founded upon, an accounting 173 Article I. Action of account at law 173 Section 1. When the action lies 173 Section 2. When the action does not lie 173 Article II. Actions of account in equity 174 Section 1. In general 174 Section 2. No remedy at law 174 Section 3. Mutual accounts 176 XX TABLE OF CONTENTS. Part I, Chap. IV — Of actions founded upon an accounting — Continued. page. Section 4. Appropriation 176 Section 5. Agency •. 178 Section 6. Apportionment 180 Section 7. Contribution 182 Section 8. Liens 186 Section 9. Rents and profits 186 Section 10. Waste 187 Article II. When no action can be maintained 187 Section 1. In general 187 Section 2. Defenses to action 188 Ghafteb V. Of actions relating to accounts, or to an account stated. ... 189 Article I. Actions upon or relating to accounts 189 Section 1. What is a matter of account 189 Section 2. What is not a matter of account 189 Section 3. Books of account, how kept 190 Section 4. Books, how proved 190 Article II. Actions upon or relating to an account stated 191 Section 1. An account stated 191 Section 2. Rendering an account 192 Section 3. Mutual agreements 192 Section 4. Admissions, etc 193 Section 5. No objection made 193 Section 6. Conclusiveness 195 Section 7. Opening account 196 Ohapteb VI. Of an action for adultery 199 Article I. Of the action in general 199 Section 1. Marriage must be proved 199 Section 2. The husband must be without fault 199 Section 3. Separation by agreement. , 200 Section 4. Ill treatment of wife . , 200 Section 5. Husband living in adultery 201 Section 6. Condonation 201 Section 7. Proof of the offense 201 Section 8. Damages 203 Obafrb VII. Advancement 205 Article I. General rules relating to advancement 205 Section 1. What is 205 Section 2. What is not advancement 206 Section 3. In what made 207 Section 4. To whom made 207 Section 5. From whom 207 Section 6. Value of 208 Section 7. Presumptions 208 Section 8. Parol evidence 209 Section 9. Hotchpot 210 Section 10. Failure of 212 Section 1 1. Interest on 212 TABLE OF CONTENTS. xxi Part I — Of actions and defenses — Continued. paok. Chapter VIII. Agency 21S Title I. Of the general principles relating to principal and agent. . . . 213 Article I. Of the nature of an agency 213 Section 1. In general 213 Section 2. Who may be a principal 214 Section 3. Who may be an agent 214 Section 4. An agent cannot delegate his authority 215 Section 5. Of a general or a special agency 216 Article II. Of the different kinds of agents 217 Section 1. In general 217 Article III. Of the appointment of agents 218 Section 1. How appointed 218 Section 2. By deed or sealed instrument 218 Section 3. B}'' parol, or by an unsealed writing 219 Section 4. By corporations 219 Section 5. Express or implied authority 219 Article IV. Of the nature and extent of an agent's authority. . . 220 Section 1. In general 220 Section 2. An agent's authority includes the usual and necessary means of executing it . 221 Section 3. Authority, when limited 224 Section 4. Notice of extent of agent's authority 226 Section 5. Private instructions to agent 227 Section 6. Ambiguous authority 228 Section 7. Usage or custom 228 Section 8. Parol evidence to enlarge authority 229 Section 9. Acts to be done in a foreign country or state. . . 230 Section 10. Extent of authority, how far implied 230 Section 11. Of notice to agents 231 Section 12. Powers on extraordinary occasions 232 Section 13. Ratification of assumed authority 232 Section 14. Agent's declarations do not prove authority . 234 Article V. Of the duties of agents 235 Section 1. In general 235 Section 2. Agents must act in person 235 Section 3. As to made of executing the authority 235 Section 4. Agency coupled with an interest 239 Section 5. Agent must act within the scope of his authority, 240 Section 6. What diligence and skill required 240 Section 7. Incidental duties of agents 241 Section 8. Instructions to agents 242 Section 9. Effect of usage 243 Section' 10. Of sub-agents or substitutes 243 Section 11. Losses, by whom borne 244 Section 12. Adverse interest by agent 245 Article VI. Of the liabilities of agents to their principals 249 Section 1. In general 249 xxii TABLE OF CONTENTS. Part I, Chap, VIII — Agency — Continued. pagb. Section 2. Accounting by agents 252 Article YII. Defenses of agents against principals 255 Section 1. In general 255 Section 2. Illegality as a defense 255 Section 3. No damage to principal 255 Section 4. Necessity 256 Section 6. Ratification 256 Article VIII. Liability of agents to third persons, on contracts. . 256 Section 1. A known agent is not responsible 256 Section 2. Agent assuming liability 256 Section 3. Agent exceeding his authority 257 Section 4. Not disclosing agency 258 Section 5. Agent's liability for a foreign principal 259 Section 6. Liability of agent who contracts in his own name, 259 Article IX. Of the liability of public agents upon contracts made by him 260 Section I. The general rule 260 Section 2. When a public agent is not liable 261 Section 3. When a public agent is liable upon contracts .... 262 Section 4. Liability of government or pnncipal. . . 263 Article X. Liability of agents for torts .... 263 Section 1. Of their liability in general 263 Section 2. When agent is liable to third persons 264 Section 3. Agent when not liable for torts 266 Section 4. Principal not liable for agent's willful torts 266 Section 5. Liability of public agents for lorts 267 Article XL Of the rights of agents in regard to their principals, 268 Section 1. In general 268 Section 2. Compensation of agent 268 Section 3. Service before payment 270 Section 4. Faithful discharge of duty before payment 271 Section 5. Adverse interests, or acting for two parties 271 Section 6. Reimbursement and indemnity of agents 271 Section 7. Loss or damage sustained for principal 272 Section 8. Illegal acts , 273 Section 9. Power of agent to pledge goods 273 Article XIT. Of the lien of agents . 273 Section 1. Of an agent's lien in general 273 Section 2. Particular liens 273 Section 3. General liens 274 Section 4. Lien, how acquired 274 Section 5. Upon what demands a lien may be had 275 Section 6. Waiver of lien, or of right to it 276 Section 7. Enforcing lien 277 Section 8. Lien of sub-agent 27V Article XIII. Rights of agents as to third persons 278 Section 1. Rights in general 278 TABLE OF CONTENTS. xxiii Part I, Chap. 7 III — Agency — Continued. p^^^ Section 2. Rights of agent to sue in his own name 278 Section 3. Principal may control actions 281 Section 4. Agent may sue for tort of third person .,, 281 Article XIY. Rights of principals against third persons 281 Section 1. In general '" 231 Section 2. Rights of principal on agent's contract 282 Section 3. Payment to agents 28'> Section 4. Payment by agents for principals 284 Section 5. Torts to property in agent's hands 285 Section 6. Wrongful sales or transfers by agent 285 Article XY. Rights of third persons against principals 285 Section 1. In general 285 Section 2. Rights of third persons on agent's contracts 286 Section 3. Principal's liability for torts of agent 287 Article XVI. Termination of an agent's authority 289 Section 1. In general 289 Section 2. Revocation of authority by principal 289 Section 3. Mode of revocation 289 Section 4. Renunciation of agent 290 Section 5. Termination by operation of law 290 Section 6. Revocation by death of principal 290 Section 7. Revocaiion by death cf agent 291 Chaptib IX. Ancient lights 292 Title I. General rules and principles 292 Article I. Of the Enghsh rule 292 Section 1. Right by prescription 292 Section 2. By statute in England 293 Section 3. Implied grant 293 Article II. Of American cases similar to the English rule 294 Section 1. As to ancient lights 294 Section 2. As to impHed grant 295 Article III. Of the American rule . 296 Section 1. In general 296 Chapter X. Animals 2q« Title I. Of the ownership of animals, and of the rights, duties and lia- bilities of their owners or possessors 298 Article I. Of the ownership of animals 298 Section 1. Definition, and general principles 298 Section 2. What animals are subjects of property 298 Section 3. What animals are not subjects of property 299 Section 4. Title to animals, how acquired 300 Section 5. Title, how transferred or lost 302 Article II. Rights of owners or possessors of animals 302 Section 1. Rights of the owner of animals 302 Section 2. Rights of the possessor of animals 302 Section 3. Wrongfully taking animals 302 XXIV TABLE OF CONTENTS. Part I, Chap. X — Animals — Continued. Pagk. Section 4. Wrongful destruction of animals 303 Section 5, Wrongful injury of animals 305 Section 6. Wrongful conversion of animals 306 Section 7. Rights as to mode or place of keeping 306 Article III. Duties and liabilities of owners or possessors of ani- mals 307 Section 1. Generally, when owner liable 307 Section 2. Injuries to persons by domestic animals 308 Section 3. Injuries to animals by domestic animals 309 Section 4. Injuries by wild animals 310 Section 5. Knowledge by owner, of vicious habits 311 Section 6. Agent's knowledge of viciousness 316 Section 7. Liability of possessor of animals 316 Section 8. Injuries by trespassing animals 316 Section 9. Communicating diseases 317 Section 10. Injuries by animals of different owners 318 Section 11. Liability by statute 319 Section 12. Contributory negligence 320 Article IV. Rights of third persons 320 Section 1. To kill dangerous animals 320 Section 2. Abating a nuisance 320 Section 3. To protect his own animals 320 Section 4. To protect his property from trespass 321 Chapter XI. Annuities 323 Article I. General rules relating to annuities 323 Section 1. Nature of an annuity 323 Section 2. How created 324 Section 3. Payment of 325 Section 4. Enforcement of 325 Section 5. How determined 326 Chapter XII. Application of purchase-money 327 Title I. General rules relating to the application of purchase money. . 327 Article I. Purchaser, in what cases bound to see the application of 327 Section 1. General rule as to 327 Section 2. Where the trust is specific 327 Section 3. Where the trust is general and indefinite 328 Section 4. Collusion or fraud of purchaser 328 Section 5. Purchaser of real estate 329 Section 6. Where discretion is to be exercised by trustee.. . 330 Section 7. Where the testator reposes the trust of applying the money in the trustee 330 Chapter XIII. Assault and battery 332 Article I. Of assault and battery , 332 Section 1. What ia an assault 332 Section 2. What is not an assault 333 Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. TABLE OF COA^ TENTS. xxv Part I, Chap. XIII — Assault and battery — Continued. paqr. Section 3. What is a batterj- , 335 Section 4. Wounding and mayhem 336 Article II. Of defenses, excuses and justification 337 Accident 337 Self-defense 337 Defense of another 338 Defense of land, house, etc 339 Defense of personal property 340 Preserving the peace, etc 341 Provocation 342 Expulsion by innkeepers 343 Removing from religious meetings 343 Section 10. Ejecting from public conveyances 344 Section 11. Consent 344 Section 12. Damages in general . 345 Section 13. Aggravation of damages 345 Section 14. Mitigation of damages 346 Chapter XIV. Assets, administration of 348 Article I. General rules relating to administration of 348 Section 1. What are to be deemed assets 348 Section 2. Legal assets 348 Section 3. Equitable assets 349 Section 4. Principles of distribution 350 Section 5. Marshaling assets 352 Obapteb XV. Assignments 355 Article I. Of the general rules relating to assignments 355 Section 1. Assignments in general 355 Article II. What is assignable 355 Section 1. In general 355 Section 2. Lands, and interests in lands 356 Section 3. Contracts 357 Section 4. Money due, or to become due 359 Section 5. Causes of action 359 Article III. What is not assignable 361 Section 1. In general 361 Article IV. Form and mode of assigning 362 Section 1. In general 362 Article V. Validity of assignment as to assignor's creditors 364 Section 1. In general 364 Article VI. Rights of assignee 364 Section 1. In general , 364 Article VII. Liabilities of assignee 360 Section 1. In general 366 Article VIII. Rights of assignor 366 Section 1. In general 368 xxvi TABLE OF CONTENTS. Part I, Chap. XV — Assignments — Continued. pagb, Article TX. Liability of assignor 367 Section 1. In general 367 Article X. Action at law by assignee 368 Section 1. In general 368 Article XI. Action in equity by assignee 369 Section 1. In general 369 Article XII. Fraudulent assignments 371 Section 1. In general 371 Chapter XVI, Assumpsit 373 Title I. Of the action of assumpsit, and when it may or may not be maintained 373 Article I. Nature and definition of 373 Section 1. In general 373 Section 2. Promise 374 Section 3. Consideration 374 Article II. Special or general assumpsit 375 Section 1. Special assumpsit 375 Section 2. G-eneral assumpsit 376 Article III. When the action lies 377 Section 1. In general 377 Section 2. General indebitatus assumpsit, when proper, .... 382 Section 3. When special assumpsit lies 385 Article IV. When the action does not lie 386 Section 1. In general ;..... 386 Section 2. When indebitatus assumpsit does not lie 388 Article V. Who may bring the action 390 Section 1. In general 390 Article VI. Of the pleadings in the action . . 392 * Section 1. The declaration, in general 392 Section 2. Averments 393 Section 3. What may be pleaded in defense 396 Section 4. The general issue .... 396 Section 5. Special pleas 397 Article VII. Of the evidence in the action 398 Section 1. Under the common counts 398 Section 2. Under special counts 399 Section 3. Under the general issue 400 Section 4. Under plea of payment 401 Section 5. Incompetent evidence 401 Section 6. Variance 403 Article VIII. Of the damages in the action 404 Section 1. In general 404 Article IX. Election between assumpsit and other actions 403 Section 1. Plaintiff may waive tort and bring assumpsit 405 Section 2. Election in other cases 409 TABLE OF CONTENTS. xxvi, Part I — Of actions and defenses — Continued. pj^oe Chapter XVII. Attachment 4Iq Title I. Of the remedy by, in general 410 Article I. Nature of remedy 410 Section 1. Origin of 410 Section 2. Remedy in the United States 411 Article II. In what actions allowed 412 Section 1. In general 412 Article III. In what actions not allowed 413 Section 1. In general 413 Article IV. In whose favor issued 415 Section 1. In general 415 Article V. Against whom issued 415 Section 1. In general 415 Section 2. Absent debtors .' 415 Section 3. Absconding debtors 416 Section 4. Removal, or fraudulent disposition of property by debtors 417 Section 5. Non-resident debtors 418 Section 6. Corporations 421 Section 7. Persons in a representative capacity 421 Article VI. What property may be taken 422 Section 1. Real estate 422 Section 2. Personal property 423 Article VII. What property exempt from .... 423 Section 1. In general 423 Article VIII. Remedies for illegal attachment or seizure 426 Section 1. By action on attachment bond 426 Section 2. By action for malicious attachment 428 Chapter XVIII. Attorneys 43C Title I. Of the powers, rights, duties and liabilites of attorneys in general 43C Article I. Nature of the office and qualifications for 430 Section 1. Nature of the office generally 43C Section 2. Who may be admitted 43I Section 3. Qualiflcations 432 Section 4. Suspension 433 Section 5. Striking oflf the roll 434 Article II. Authority or powers of attorneys 434 Section 1. In general 434 Section 2. To demand client's money, etc 435 Section 3. To dispose of securities, etc 436 Section 4. To make settlements, compromises, etc 436 Section 5. To control proceedings, etc., of suits 437 Section 6. To make admissions, stipulations, etc 44C Section 7 To control judgment, execution, etc 44] Section 8. To prosecute auxiliary proceedings 443 xxviii TABLE OF CONTENTS. Parti, Chap. XVIII — Attorneys — Continued. paob Article III. Duties, liabilities and disabilities of attorneys 444 Section 1. In general 444 Section 2. Skill and fidelity 445 Section 3. Attorney as bail 445 Section 4. Attorney as witness 446 Section 5. Attorney cannot act in other capacity 447 Section 6. Cannot act on opposite sides 448 Section 7. Liability to third persons 448 Section 8. Liability for costs, fees, etc 449 Article IV. Rights and privileges of attorneys 450 Section 1. In gen eral 450 Section 2. To compensation , 451 Section 3. Special agreements for pay 452 Section A. Lien for costs. . 453 Section 5. Privileges generally 455 Article V. Action by attorney against client 456 Section 1. In general 456 Section 2. Retainer 456 Section 3. Proof of retainer 457 Section 4. Unauthorized appearance 458 Article VI. Actions and proceedings by client against attorney, . 459 Section 1. In general 459 Section 2. For negligence 459 Section 3. For accounting and payment 461 Section 4. Summary proceedings to collect, etc 462 Section 5. Oth-er relief 462 Article VII. Change, etc , of attorneys 462 Section 1. In general, by client 462 Section 2. Withdrawing by attorney 463 Section 3. Assistants or substitutes 463 Section 4. Partners of attorney 464 Section 5. Clerks 465 Article VIII. Dealings between attorney and client 465 Section 1, In general 465 Section 2. Presumptions 466 Section 3. Relief granted to client 466 Section 4. Protection to attorney 467 Section 5. Purchases adverse to client 467 Section 6. Attorney held as trustee 467 Article IX. Privileged communications 468 Section 1. In general 468 Section 2. Exceptions and limits to rule 469 Section 3. Presence of both parties 470 Section 4. Production of papers 471 Section 5. Waiving privilege 471 Section 6. Termination of privilege 471 Section 7. What are privileged communications 472 Section 8. What not privileged 472 TABLE OF COJS'TENTS. xxix Part I, Chap. XVIII — Attorneys — Continued. p^^ck Article X. Disbarring ^^.^ Section 1. In general ^^^ Section 2. What is ground for 473 Section 3. Notice to attorney 474 Section 4. Decision and effect of 475 Section 5. Restoration 475 Chapter XIX, Auctioneers 4-y Title I. Of auctions and auctioneers in general 476 Article I. Who may be an auctioneer 476 Section 1. In general 47g Section 2. Statutes relating to 476 Article II. Rights and powers of auctioneers 477 Section 1. As to conditions of sale 477 Section 2. Ma_v receive payment 477 Section 3. No right to warrant 473 Section 4. Cannot delegate his powers ; 473 Section 5. Limited to perfecting sale by auction 478 Section 6. May bring actions 478 Section 7. Cannot sell at private sale 479 Section 8. Cannot bid or buy for another 479 Article III. Duties and liabilities of auctioneers 479 Section 1. As to care of property 479 Section 2. To obey instructions 480 Section 3. Selling for undiscovered principal 480 Section 4. Diligence and honesty 480 Section 5. Sale of stolen goods 480 Section 6. Liable as a stakeholder 481 Article IV. Effect of puffing and combinations 482 Section 1. In general 432 Section 2. Illusory bids, when allowed 433 Article V. Sale, when binding 435 Section 1. In general 435 Article VL Effect of statute of frauds 435 Section 1. Auctioneer agent of both parties 48.5 Section 2. Form of memorandum of sale 486 Article VII. Compensation of auctioneer 487 Section 1. In general 437 Section 2. Loss by negligence or fraud 487 Article VIII. Actions founded upon auction sale 488 Section 1. Auctioneer may sue 488 Section 2. Vendor liable for auctioneer's statements 488 OsAPTSR XX. Audita Querela 439 Article I. Nature of the remedy 439 Section 1. In general 439 Section 2. Where it will He 439 Section 3. When it does not lie 491 XXX TABLE OF CONTENTS. Part I, Chap. XX — Audita Querela - Continued. page. Section 4. Procedure, etc 492 Section 5. Relief upon motion 492 Chapter XXI. Bailments 494 Title I, Of bailments generally 494 Article I. Nature and definition 494 Section 1. In general 494 Article II. Of the various kinds of bailments 495 Section 1. In general 495 Section 2. G-eneral rules relating to bailments 495 Section 3. What care and diligence is required 496 Section 4. Effect of custom or usage 496 Section 5. Of the kinds and degrees of negligence 497 Section 6. Fraud by bailee 497 Ohapter XXII. Banks and banking 498 Title I. Of the rights, powers, duties and liabilities of banks and bankers 498 Article I. General principles relating to banks and bankers 498 Section 1. Nature of their dealings in general. 498 Section 2. Effect of usage upon the contracts and dealings with banks 499 Section 3. By-laws of bank, force of 500 Section 4. Liens of banks and bankers 500 Section 5. Deposits, general and special 501 Section 6. Relation between bank and depositor 502 Section 7. Repayment of deposits 503 Section 8. Who may withdraw deposits 504 Section 9. Demand of deposit 504 Section 10. Checks, nature and requisites of 505 Section 11. Certified checks 507 Section 12. Paying forged checks . 508 Section 13. Notes payable at a bank 509 Section 14. Over-drafts 509 Section 15. Pass-books 510 Section 16. Certificate of deposit 511 Section 17. Nature of bank notes or bills 511 Section 18. Destroyed, mutilated or lost notes 512 Section 19. Forged or stolen bills 512 Section 20. Demanding payment of bank bills 513 Section 21. Mode of payment 514 Section 22. Refusal to redeem, consequence of 514 Section 23. Loans and discounts 514 Section 24. Collections by banks and bankers 516 Section 25. Liability of collecting bank 516 Section 26. Employing second bank 517 Section 27. Liability of second bank 517 Section 28. Powers and duties of cashier 518 Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Section 11. TABLE OF CONTENTS. xxxl Part I — Of actions and defenses — Contiiiued. P.48E. Chapter XXIII. Bills of lading 521 Title I. Of the rights, duties, liabilities and remedies cf parties to bills of lading, or to indorsees or holders of them, or of possessors of the property in them 521 Article I. General principles relating to bills of lading 521 iSTature of a bill of lading 521 Who may make them 522 To- whom given 522 Form and requisites 522 Duration and currency 523 Negotiabihty 524 Exemption of risks 525 Rigts of shipper of property 626 Eights of indorsee or holder 526 Who is a bona fide holder 527 Right of vendor or consignor to stop in transitu^ 528 Section 12. Who not a holder for value 529 Section 13. Pledging 529 Section 14. Lien of shipping agent 530 Section 15. Presentation and production 530 Section 16. How affected or varied by parol evidence 530 Section 17. Legal remedies 532 Section 18. Equitable remedies 53-3 Ohapteb XXIY. Bills of exchange and promissory notes 534 Article I. General principles and definitions 534 Section 1. In general 534 Article II. Parties to a bill or note 53" Section 1. In general 537 Article III. Forms and requisites of bills and notes, etc 538 Section 1. In general 538 Article IV. Negotiability of bills and notes 561 Section 1. In general 561 Article V. Bills and notes not negotiable 573 Section 1. In general , 573 Article VI. Guaranty of bills and notes 582 Section 1. In general 582 Article VII. Indorsement and transfer of bills and notes 585 Section 1. In general 585 Article VIII. Lost bills and notes 602 Section 1. In general 602 Article IX. Consideration of bills and notes 607 Section 1. In general 607 Article X. Presentment for acceptance 618 Section 1. In general 618 Article XI. Acceptance of bills 621 Section 1. In general 621 xxxii TABLE OF CONTENTS. Part I, Chap. XXIV — Bills of exchange and promissory notes — Conidnued. r lS.k. Article XII. Proceedings on non-acceptance 626 Section 1. In general 626 Article XIII. Presentment for payment, and payment 635 Section 1. In general 635 Article XIV. Payment, by whom 641. Section 1. In general 641 Article XV. Proceedings on non-payment, notice 644 Section 1. In general 644 Ohaptkb XXV. Bills of peace 649 Title I. Nature of the remedy by, and in what cases allowed 649 Article I. When the remedy will lie 649 Section 1. Nature of the remedy 649 Section 2. To quiet claims established at law 649 Section 3. To establish rights of all parties 650 Section 4. In other analogous cases 651 Article II. When the remedy will not lie. ._ 652 Section 1. To establish private right against the rights of the public 652 Section 2. No privity among parties 652 Section 3. No legal or equitable title in party 653 Section 4. Remedy at law . 653 Chaptxr XXVI. Bills quia timet 654 Title I. Of the nature of bills qtiia timet, and in what cases allowed. . 654 Article I. When the remedy will lie 654 Section 1. Definition and nature of bills quia timet 654 Section 2. To preserve property for the party entitled thereto, 654 Section 3. Application of remedy to future interests in per- sonalty 6[ 5 Section 4. Protection of sureties 656 Section 5. Micellaneous cases 657 Article II. Mode of obtaining relief. 657 ^ Section 1. In general 657 Section 2. By appointment of receiver 658 Section 3. By ordering money to be paid into court 660 Section 4. By ordering defendant to give security 661 Section 5. By writ of injunction. 661 Ohaptkr XXVII. Bill to remove cloud on title 362 Title I. Nature of the remedy, and when obtainable 662 Article I. When the remedy lies 662 Section 1. What constitutes cloud on titlb 662 Section 2. Jurisdiction to remove, in what court 663 Section 3. Who may maintain the bill 663 Section 4. In what cases maintainable 664 TABLE OF CONTENTS xxxiii Part I, Ohap. XXVII — Bills to remove cloud on title — CotHnutd, page. Article II. When the remedy will not lie 666 Section 1. Where party is out of possession 666 Section 2. Complainant's title doubtful 666 Section 3. Instrument void on its face 666 Section 4. Other cases 6G7 Article III. Mode of granting relief 668 Section 1. In general 608 Chapter XXVIII. Bonds 670 Title I. Of bonds in general 670 Article I. Nature and definition 670 Section 1. In general 670 Article II. Parties 671 Section 1. Obligor 671 Section 2. Obhgee 672 Article III. Form and contents of bond 672 Section 1. In general 672 Section 2. Consideration 673 Section 3. Seal 674 Article IV. Execution, mode of 676 Section 1. Attestations, etc 676 Section 2. Filling up blanks 678 Section 3. Delivery and acceptance 679 Article V. Construction and effect 680 Section 1. Recitals 680 Section 2. General rules 680 Section 3. Of particiilar words and phrases 682 Section 4. Validity 683 Section 5. Performance 685 Section 6. Breach 686 Article VI. Release and discharge 687 Section 1. In general 687 Article VII. Negotiable bonds , 688 * Section 1. What are 688 Section 2. Rights of bona fide holder 689 Article VIII . Official bonds 689 Section 1. Construction and enfect of 689 Section 2. Validity 690 Section 3. Rights and liabilities under 691 Section 4. Breach .... 691 Section 5. Discharge 691 Section 6. Of United States officers 692 Section 7. Of sheriffs, constables, etc. 693 Article IX. Indemnity bonds 693 Section 1. In general 693 xxxiv TABLE OF CONTENTS Part I, Chap . XX VIII — Bonds — Continued. page. Article X. Bonds in particular cases 694 Section 1. To pay money 694 Section 2, To perform services, etc 694 Article XI. Action upon bonds 695 Section 1. Jurisdiction, etc 695 Section 2. When an action lies 696 Section 3. Upon what state of facts 697 Article XII. Defenses to action on bond 699 Section 1. Grounds of, in general 699 Section 2. Denying execution 700 Section 3. Impeaching consideration 701 Section 4. Averment of fraud 701 Section 5. Performance of condition 703 Section 6. Discharge by payment, etc 704 Article XIII. Remedy on lost bond 705 Section 1. In general 705 Ghapteb XXIX. Boundaries , 707 Title I. Private boundaries 707 Article I. How established between individual proprietors 707 Section 1. Boundary defined 707 Section 2. Public street or highway 708 Section 3. Sea shore 710 Section 4. Lakes or rivers 711 Section 5. Other boundaries 713 Section 6. Marshaling boundaries 713 Section 7. Construction of grants, in respect to boundary . . 714 Section 8. Effect of acquiescence in boundary line 717 Section 9. Special agreements as to boundary line 718 Section 10. Settlement of disputed boundaries 720 Obaptkb XXX. Breach of marriage promise 722 Article I. As to right of action for breach of promise to marry . . 722 Section 1. Nature of contract to marry 722 Section 2. Promises must be reciprocal 723 Section 3. Conditional promises 724 Section 4. Time of performance 724 Section 5. Validity of promise 725 Section G. Excuses for breach of promise 725 Section 7. Abandonment of contract to marry 726 Section 8. Who may maintain action for breach of promifle. , 726 Section 9. Damages in action for 727 Ohapteb XXXI. Bridges 729 Article I. Of the general rules of law relating to bridges 729 Section 1. Definition of 729 Section 2. How established 730 Section 3. Reparation of bridges , .... 731 TABLE OF CO:S^TENTS. ^xxr Part 1 , Chap. XXXI - Bridges - Continued. Section 4. Remedies for neglect to repair. %*Ji Sections. Toll bridges '.'.".'.[ 733 Ohapteb XXXII. Canals 736 Article I. General rules of law relating to canals 733 Section 1. Definition Section 2. Construction and management ot. .... ..,,[,] 73(3 Section 3. Seeping in repair -o^ Section 4. Tolls.... I Section 5. Negligence ^„q Section 6. Liability of officers in charge .*.'.'.'.' * .' .' ' ][ 735 TABLE OF CASES. PAOB. Abbott V. Abbott 123, 715, 719 Abbott V. Blossom 405, 406 Abbott V. Dutton 458 Abbott V. Gatch 404 Abbott V. Sliepard 86 Abbott V. Zeigler 446 Abbe V. Eaton 531 Abbe V. Rood 437 Abeel v. Radcliflf" 113 Abercrombie v. Manly 569 Aberdeen v. Blackmar 686 Acheson v. Miller 183 Ackermau v. Humphrey 525 Acton V. Blundell 144 Adams v. Adams 119, 120, 354 Adams v. Bean 677 Adams v. Brackett 351 Adams v. Brougbton 372 Adams v. Burton 300 Adams v. Clark 275 Adams v. Frotbingham 131 Adams v. Fort Plain Bank 443 Adams v Rivers 148 Adams v. Hall 318 Adams v. Honness 71 Adams v. Hopkins 450 Adams v. Roller 436 Adams v. Jones 565 Adams v. Paige 141 Adams v. Hill 123 Adams v. Warner 124 Adams v. Orange County Bank 504 Adams v. Otterbach 499 Adams v. Olive 427 Adams v. Packet Co 521 Adams v. King 539 Adains v. Leland 636 Adamson v. Jarvis 272, 481 Adsit V. Brady 739 J&rnii, National Bank v. Fourth Na- tioaal Bank 502, 505, 535 /Etna Ins. Co. v. Allen Bank 517 JStna Ins. Co. v. Church 249 A'nern v. Nat. Steamship Co 421 Aikin v. Bloodgood 386 Aikin v. Buck 285 Aiken v. Peay ... 186 PAOBL Aiuslee v. Wilson 618 Alabama County v. Brainard 592 Albany City Bank v. Schermerhorn, 659 Albany City Ins. Co. v. Whitney. . . . 411 Albert Wiley v. Keokuk 346 Alcada v. Morales 679 Alcorn v. Mitchell 346 Aldred's Case 293 A Id rich v. Cooper 353 Aiuiich V. Jackson 368 . . M: ich V. Wright 321 Aldrich v. Boston & Worcester R. R. Co 250 Aldridge v. Branch Bank 556 Alexander v. Jacobs 427 Alexander v. Jameson 675 Alexander v. Mackenzie 591 Alexander v. Pendleton. . . 650, 651, 652 Alexander v. Thomas 549 Algeo V. Algeo 886 Alger V. Scott 363, 552, 557 Alger V. Thacher 674 Allen V. Brown 360, 480 Allen V. Clark 569 Allen V. City of Buffalo 662 Allen V. Fosgate 584 Allen V. Ford 408 Allen V. Fourth Nat. Bank of New York 503 Allen V. Hammond Ill Allen V. Harrison 470 Allen V. Jarvis 389 Allen V. Kingsbury 707 Allen V. Merchants' Bank 517 Allen V. Miller " 368 Allen V. McNew 382 Allen V. Rightmere 583 Allen V. Smith 99 Allen V. State Bank 163, 499 Allen V. Sullivan R. R 675 Allen V. Suydam 637 Allen V. Wood 185 Allen V. Woodward 104, 407 Allen V. Prvor 97 AUiare v. Ouland 396, 487 Allard v. Lamirande 45a Allard v. Smith 723, 724 XXXVUl TABLE OF CASES. PAGE. Alley V. Rogers 516 Allston V. Clay 435 Almony v. Hicbs . . 633, 666, 667 Alna V. Plummer 486 Alsbrook v. Hathaway 406 Alsliire v . Hulse 714 Alspaugh V. Jones 438, 442 Alston V. Mumford 352 Alston V. Newcomer 419 AJthorf V. Wolfe 264 Alvord V. Baker 576 Ambler v. Church 147 American Bank v. Rollins 411 American Exchange Bank v. Blan- chard 548 American Express Co. v. Pinckney, . 127 Ames V. Meriam 507 Amick V. O'Hara 305. 322 Amidon v. Aikin 491 Amory v. Flynn 398, 300 Amos V. Allnut 684 Ancher v. Bank of England 591, 597 Anderson v. Clark 533 Anderson v. Coonley 216, 223 Anderson v. Drake 557, 620, 636 Anderson v. Doak 424 Anderson v. Earns 683 Anderson v. Hays 402 Anderson v. Hooks 662 Anderson v. James 717 Ande^rson v. Longden 691 Anderson v. Miller 366 Anderson v. Solomon 387 Anderson v. State of Georgia 353 Anderson v. Talbot 664, 667 Anderson v. Van Alen 369 Anderson v. Weiser 349 Andrews v. Bagg 635 Andrew v. Blackby 506 Andrews v. Chadbourne 567 Andrews v. Estes 337 Andrews v. Hall 211 Andrews v. Hobson 180 Andrews v. Ives Ill Andrews v. Michigan Central R. R. Co 415, 421 Andrews v. Montgomery.. . 384. 387, 388 Andrews v. Morse 454 Andrews v. Ohio, etc.,R. R. Co 471 Andrews v. Rue 368 Andrews v. Stone 345 Andrews v. Sparhawk 328, 329 Andrews v. Thompson 471 Andre v. Johnson 341 Angel V. Feltou 570 Angel V. Smith 659 Angle V. Hanua 386 Angus V. Radin 304, 308, 310 Annuity, A 323 Annuity, C 325 Anonymous 169,189,433,463, 685 Ansliutz V. Anshutz 656 Anthony v. Haneys 59, 162 Antlioiiy V. Shiid 149 Anthony v. Wilson 703 Appleby v. Biddulph 545 PAon Appleby v . Brown 173 Applebee v. Percy 316 Appleton V. Bascom 109 Appleton V. Chase 103 Appleton V. FuUerton 142 Apperson v. Bynum 632 Apperson v. Ford 666 A pthorp V . Comstock 669 xAranguren v. Scholfield 165 Archer v . Clafiiu 574 Archer v. Hart 682 Archibald v. Thomas 119, 131, 137 Arents v. Com 688 Argenbriglit v. Campbell 677 Armstrong v . Armstrong 659 Armstrong County v. Clarion County 183 Armstrong v. Craig 460 Armstrong v. Dubois 448 Armstrong v. Elliott 346 Armstrong v. Garrow 384 Armstrong v. Smith 354 Armstrong v. Toler 355 Armitage v. Wadsworth 162 Armstrong v. Webster 397 Arms V. Ashley 90 Arnold v. Arnold 403 Arnold v. Barrow 210, 363 Arnold v. Elmore 711 Arnold v. Elwell 365 Arnold v. Lyman 390 Arnold v. Macungie Savings Bank. . 517 Arnold v . Mundy 301 Arnold v. Norton 308, 314 Arnold v. Paxton 400 Arnold v. Rock River, etc., R. R 553 Arnold v. Robertson 460 Arnold v. Sprague 538, 623 Arriugton v. Liscomb 664 Arrington v . Sneed 453, 463 Arthur v. Griswold 140 Artisans' Bank v. Backus 633 Ascutney Bank v. McOrmsby 406 Ashby V. White 140, 148 Ashley's Case 206 Ashley v. Harrison 39, 149 Aspinwall v. Sacchi 183. 185, 186 Aspiuwall V. Torrance 258 Astor V. Mayor, etc., of New York. . 666 Astreen v. Flanagan 208 Atcheson v. Mallon 483 Atchinson v. Baker 725 Atkinson v . Gray 350 Atkinson v. Leonard 163 Atkinson v. Manks 546, 552, 574, 575 Atkinson v. Runnells 369 Atkinson v. Settree 375 Atkins V. Farr 723 Atkins V. Rison 168 Atkyns v. Amber 47 Atlantic Mut. Ins. Co. v. McLoon 418 Atlee V. Backhouse 671 Attorney-General v. Brunning 349 Attorney-General v. Mayor, etc., of Dublin 174 Attorneys' License 433 Attwood T. Emery 120 TABLE OF CASES. XXXiX Atwood V. Fisk 154 Atwood V. Fowler 198 Atwood V. Griffin 542 Attwood V. Munnings 591 Atwood V. Small 139 Atwood V. Vincent 156 Aubin V. Laly 323 Auburn & Cato Plank-Road Co. v. Douglass 36 Auchmuty v. Ham 318, 319 Augur V. N. Y. Belting & Packing Co.. 358 Aultman v. Jones 224, 231 Aureutz v. Porter 659 Aurora City v. West 689 Austin V. Crawford 129 Austin V. Burbank 694 Austin V. Burgett 415 Austin V. Burns 547 Austin's Case 430, 473 Austin V. Hudson R. R. Co 144 Austin V. Monroe 444 Austin V. Rodman 628 Austin V. Wheeler 189 Autrey v. Autrey 207, 209, 210 Avards v. Rhodes 50 Avery v. Halsey 272 Avery v. Tyringham 394 Averill v. Loucks 350, 352 A wde V. Dixon 610 Axtell V. Caldwell 703 Aymar v. Beers 619 Aymar v. Sheldon 593 Ayer v. Hawkins 177 Ayers v. Harness 678 Ayres v. Milroy 565 Ayres v. Wilson 567 Ayrault v. McQueen 61 1 Ayrault v. Pacific Bank, 243, 244, 251, 266 516, 517 Babcock v. Beman 238, 588, 589, 598 Babcock v. McCamant 152 Babcock v. Utter 716 Baber v. Harris 374 Bachelder v. Bickford 384 Bachelder v. Fiske 186 Bachelor v. Priest 634 Bache v. Proctor 703 Backus v. Shipherd 635 Backhouse v. Patton 350 Backenstoss v. Stabler 483 Back v. Stacy 292 Bacon v. Brown 177 Bacon v. Burnham 602 Bacon v. Lane 695 Bacon v. Marshall 413 Baddely v. Mortlock 725 Badger v. Bank of Cumberland 520 Badlam v. Tucker 685 Bagley v. Morrill 715 Bailey v. Adams 276 Bailey v. Bagley 435 Bailey v. Bidwell 611 Bailey v. Bussing 110 Bailey v. Butterfield 388 Bailey v. Day 95 FAOS, Bailey v. Delaplaine 431 Bailey v. Freeman 39,3 Bailey v. Jackson 704 Bailey v. Johnson 404 Bailey v. Jones 719 Bailey v. Quint 276 Bfxiley v. Ryder 21 Bain v. Brown 246 Bain V. Clark 253 Bain v. Hunt 384 Bain V. Lvle 685,703 Bain v. Sadler 349, 350 Bain v. Wilson 543 Bainbridge v. Pickering 378 Baird v. Blagrave 377 Baird v. Hall 245 Baker v. Block 596 Baker v. Bonesteel 573 Baker v. Cartwright 726 Baker v. Cook 454 Baker v. Haley 683 Baker v. Howell 387 Baker v. Johnson Co 83 Baker v. Johnson 145, 171 Baker v. Judges, etc 490, 493 Baker v. Kentworthy 425 Baker v. Ridgway 489 Balch v. Patten 408 Baldy v. Stratton 727, 728 Baldwin v. Bennett 404 Baldwin v. Brown 718 Baldwin v. Burrows 219 Baldwin v. Casella 316 Baldwin v. Hayden 338 Baldwin v. Leonard 259 Baldwin v. Potter 253, 255 Balfe V West 375 Ball V. Ball 708 Ball V. Cox 718 Ball v. Sleeper 491 Ball V. Storie 116 Ballard v. Bond 343 Ballard v. Randall 505 Ballard v. Walker 373 Baltimore R. R. Co. v. Breinig 346 Baltimore, etc., R. R. v. Rathbone. . . 402 Baltimore v. Reynolds 261 Baltimore & Ohio R. R. t . Polty .... 382 Baltzen v. Nicolay . ' 257, 488 Balsbaugh v. Frazier 451 Ballston Spa Bank v. Marine Bank, 234 519 Bancroft v. Dumas. . 177 Bancroft v. Stanton 675 Bancroft v. Winspear 696 Banfield v. Rumsey 544 Bangor Bridge Co. v. McMahon 381 Bangor, etc., R. R. Co. v. Smith 143 Bangs V. Little ... 341 Bank v. Beebe 396 Banks v. Dixon 165 Banks v. Evans 442 Bank v. Lonergan's Adm'r 621 Banks v. Ogden 709 Bank v. Thornsberry 514 Bank v. Willard 681 xl TABLE OF CASES. PAGE. Bank head v. Alloway 196 Bank of Albion v. Smith 596, (J26 Bank of Alexandria v. Deueale 499 Bank of Alexandria v. Mandeville . . 515 Bank of Bennington v. Raymond . . . 619 Bank of British North America v. Hooper 239 Bank of Chenango v. Root 618 Bank of Columbia v. Magruder 499 Bank of Commerce v. Union Bank, 508 600 Bank of Cumberland v. May berry . . . 5.56 Bank of England v. Newman 562 Bank of Genesee v. Patchin Bank. . . 288 Bank of India v. Bugbee 223 Bank of Kentucky v. Brooking 219 Bank of Kentucky v. Schuvlkill Bank ' ' 266, 519 Bank of Kentucky v. Wister 503 Bank of Louisville v. Ellery 593 Bank of Louisville v. Summers 512 Bank of Mobile v. Huggins. . . . 378, 516 Bank of the Metropolis v New Eng- land Bank 500 B :nk of Metropolis v. Jones 519 Bank of Missouri v. Benoist 504 Bank of Montgomery v. Knox 516 Bank of Newbern v. Pugh 680 Bank of North America v. National Bank of Commonwealth 508 Bank of New York v. Bank of Ohio, 588 Bank of New York v. Vanderhorst . . 590 Ban!; of Northern Liberties v. Jones, 503 Bank of Orange County v. Colby. . . . 130 Bank of Orleans v. Merrill 511 Bank of Peru v. Earns worth 511 Bank of the Republic v. Millard, 502, 505 Bank of Rochester v. Gray 634 Bank of Rochester v. Monteath. 634 Bank of Rutland v. Buck 612 Bank for Savings v. The Collector. . . 498 Bank of the State v. i-ord 515 Bank of Syracuse v. HoUister . . 620, 638 Bank oi 'J'roy v. Topping 563, 588 Bank of Utica v. McKinster 243 Bank of Utica v. Magher 239 Bank of Utica v. Merserau 469, 471 Bank of Utica v. Smith. . . . 596, 646, 648 Bank of United States v. Dandridge, 219 Bank of United States v. Davis, 232, 646 648 Bank of United States v. Donnally, 129 Bank of the United States v. Dunn. 515 Bank of the United States v. Bank of (jeorgia 513 Bank of the United States v. Macal- ester 502 Bank of the United States v. Owens, 699 Bank of Vergennes v. Cameron 639 Bank of Virginia v. Ward 512 Bank of Washington V. Triplett .... 517 Banter v. Levy 446 Barber v. Brace 531 Barbrr v. K'-rr 615 Barber v. Taylor. . . 530 Barber v. Taylor's Heira 2U7 PAGE. Barden v. Soutlierland 679 Bardwell v. Ames 713 Bard well v. Jamaica ... 731 Barger v. Collins 370 Baring v. Corrie 283 Barker v. Bradlev 104 Barker v. Buckliii 104 Barker v. Cassidy 601, 647 Barker v. Cory ." 378 Barker v. Mar. Ine. Co 476, 479 Barker v. Mathews 141 Barker v. May 349 Barker v. Richardson 292 Barksdale v. Finney 180 Barlow v. Broadhuist 551 Barlow v. Scott 117, 124 Barlow v. Stal worth. 406 Barnard v. Campbell 275, 528 Barnard v. Kellogg.. 122, 128, 129, 532 Barnett v. Chicago & Lake Huron R. R. Co 421 Barnett v. Emerson 704 Barnett v. Johnson 295 Barnett v. Smith 505, 508 Barnes v. Buck 418 Barnes v. Chapin 307. 314 Barnes v. Harris 470 Barnes v. Martin 333. 341 Barnes v. Ontario Bank 499, 519 Barnes v. Perriue 105 Barnes v. Profilet 459 Barney v. Newcomb 124, 622 Barney v. Patterson 411 Barnum v. Thurston 133 Barnum v. Vandusen. ... 307 Baron v . Porter 370 Barr v. Hatch 170 Barry v . Abbott 659 Barry v. Bockover 419 Barry v. Ingles 343 Barry v . Page , 282 Barry v . Stevens 179 Barrick v . Austin 581 Barrin v. Bobbins 666 Barringer v. Warden 92, 104 Barriugton v. Bank of Washington. 687 Barrow v. Bobbins 663 Barrett v. Barron 687 Barret v. Rhem 216 Barrett v. Third Avenue R. R. Co ... 439 Barickman v. Kuykendall 384 Barwick v. English Joint-Stock Bank 264 Barnstein v. Lans 270 Barough v. White 559 Bartle v. Nutt 183 Bartlett v . Board of Education 678 Bartlett v. Emery 195 Bartlett v. Hamilton 241 Bartlett v. Holmes 157 Bartlett v. Pearson 358, 368 Bartlett v. Purnell 477 Bartlett v. Punnell 486 Bartlett v. Robinson 630 Bartlett v. Tucker 338, 339, 258 Bartholomew v. Edwards 716 Bartholomew v. Jackson 104, 269 TABLE OF CASES. xli PAGE. Bartholomew v. Leach 246 Barton v. Baker 637, 628 Barton v. Faherty , 379 Barton v. Kaue 402 Barton v. Port Jackson Plank -road Co. 699 Barton v. Speir 584 Bash V. Bash 899 Easten v. Butler S7~ Bass V. Mitchell 128 Bass V. Peirce 281 Bassell v. Elmore 149 Bassett v. Avery 609 Bassett v. Lederer 129, 282 Bassett v. Sanborn 568 Bassett v. Spofford 191 Bates V. Bank of Alabama 219 Bates V. Best 234 Bates V. Butler 538, 542 Bates V. Hinton 701 Bates V. Pike 438 Bates V. Quattlebom 146 Bates V. Todd 530 Bates V. Tymason 707 Bateman v. Black 62 Batternian v. Pierce 377 Batty V. Garswell 240 Batchellor v. Priest 619 Bath V. Freeport 377 Bathgate v. Haskin 444 Baum V . Dubois 219 Baur V. Roth 702 Bausman v. Smith 413 Baviugton v. Pittsburgh, etc., R. R. Co 378 Bawling v. Arthur 517 Baxter v. Dureu 368 Baxter v. Evett 714 Baxter v. Graves 629 Baxter v. Lamont 227 Baxter v. State 125 Bay v. Cooke 210 Bayard v. Hoffman 372 Bayard v. Shunk 573 Bayer v. Reeside 393 Bayley v. Fitsmaurice 113 Bayley v. Manchester, etc.. Railway Co 265 Bayliffe v. Butterworth 229 Baylis v. Dineley 671 Bavliss V. Pricture 269 Baylies v. Fethyplace 385, 402, 685 Beach v. Nixon 50 Beach v. Raritan and Delaware Bay R. R. Co 89 Beach v. Vandewater 227 Beale v. Parish 646, 647 Beal T. Miller 155 Beal V. Thompson 383 Bean v. Coleman 651 Beach v. Hancock 332 Bean v. Keen 166 Beard V. Kirk 290 Beardsley v. Baldwin 549 Beardslee v. Boyd 254 Beatty v. McCleod 501 Beaumont v. Reeve Si^, 725 V PAGE. Beaulieu v. Finglam 17 Beavers v. Winn 211 Beck V. Thompson 634 Becker v. Sweetser 861 Beckett v. Lawrence 343 Beckley v. Newcomb 458 Beckwith v. Benner 472 Beckwith v. Union Bank 501 Becton v. Fercruson 363 Bedell v. Bedell 9fc Bedell v. Carll 50? Bedell v. Janney 252. 2o4 Bedell v. Powell 72i Bedger v. Nicolls 3ie Bedow's Case 67J Beebe v. Johnson 107, 383 Beebe v. Robert 192, 25S Beech v. White 396 Beedle v. Grant 389 Beene v. State 47o Beers v. Hendrickson 445' Beers v. Robinson 10^ Beeson v. Beeson 470 Beeson v. Howard 9(, Beet V. McLaughlin 391 Begins v. Armistead 700 Belden v. Meeker 586 Belknap v. Bender 95 Belknap v. Milliken 407 Belknap v. Nat. Bank 508 Belknap v. Reinhart 262 Bellas V. Fagely 381 Beller v. Blo>;k 479, 487 Bell v. Bruen 130, 680 Bell V. Bverson 234 Bell V. Cafferty 367 Bell V. Cunningham 353 Bell V. Eaton 726 Bell V. Ellis 388 Bell V. Douglass 426 Bell V. Greenwood 669 Bell V. Hansley 345 Bell V. Hobbs 394 Bell V. Keefe 678 Bell V. Mason 449 Bell V. Moore 166 Bell V. State 7 Bell V. Ursury 459 Benden v. Manning.. . 393, 394, 395, 403 Benedict v. Bray 683 Benedict v. Field 571 Benedict v. Nat. Bank of Common- wealth 406, 407 Benedict v. Stuart 452 Benuehan v. Webb 680, 681 Bennington v. Dinsmore 539 Bennington v. The Governor 164 Benjamin v. Coventry 471 Benjamin v. Fillman 563 Benjamin v. McConnell 118 Bennett v. Avant 416 Bennett v. Davis 214 Bennett v. Ford o 38 Bennett v. Hotchkiss. . . 668 Bennett v. Judson 139 Benoist v. Caxondelet 670 xlii TABLE OF CASES. Benson v. Campbell 413 Benson v. Leroy 349, 350 Benson v. Whitfield 449 Bent V. Cassidy 669 Bent V. Cobb 486 Benton v. Craig 462 Benton v. Piatt 139 Beinhard v. Brunner 566 Berkill v. Keighly 404 Berkley v. Watling 532 Berley v. Taylor 407 Bernard v. Dickins 385 Berry v. Alderman 611 Berry v. Bakeman 726 Berry v. Da Costa 727 Berry v. Harris 682 Berry v. Robinson 546, 592 Berridge v. Ward 709 Bertie v. Lord Abingdon 660 Bertine v. Varian 188 Berwick v. Horsfall 115 Besozzi V. Harris 311 Bessant v. Gjeat Western R. R. Co. . 304 Bessent v. Harris 242 Beswick v. Swindells 685 Bethlehem v. Annis 362 Bexwell v. Christie 255 Bibb V. Smith 466 Bickford v. First, etc., Bank, 257, 260, 506 Bickerton v. Burrell 280 Bickerdike v. Bollman 628 Biddle v. Ash 296 Bidwell V. Madison 251 Bigelow V. Bridge 691 Bigelow V. Comeggs 678 Bigelow V. Davis Ill Bigelow V. Heaton 376 Bigelow V. Jones 408 Bigler v. Reyher 468 Biggs V. Blue 412 Bill V. Porter 568 Billings V. Jane 586 Billings V. Morrow 233 Billings V. O'Brien 361 Billington v. Wagoner 158 Binney v. Chapman 387 Binney v. Chesapeake & Ohio Canal Co. 736 Bingham v. Supervisors 440 Binghamton Bridge 733 Birckhead v. Brown 584, 585 Birchard v. Booth 347 Birkbeck v. Staiford. . . .99, 359, 450, 465 Bird V. Boulter 486 Birt V. Barlow 199 Birney v. Washington Printing Tel. Co 264 Bisbing v. Graham 166 Bishop V. Ely 304, 305 Bishop V. Fahay 320 Bishop V. Williamson 267 Bishop V. Sniffen 600 Bissell V. First Nat. Bank 518 Bissell V. Kellogg 662, 664 Bissell V. New York Cent. R. R. Co. . 709 Bissell V. Price 525, 531 Bissell V. Rodeu 216 PAGR Bittick V. Wilkins , , 427 Bixler v. Ream 98 Blzzell V. Booker , 161 Black V. Brisbin 412 Black V. CafFe 545 Black V. Caruthers 697 Black V. Ward 546 Black V. Whitall 211 Black V. Scott 350 Blackett V. Wall 704 Blauckenhagen v. Blundell 539 Blackmer v. Blackmer 326 Blackstone v. Buttermore 289 Blackwell v. Fosters 120 Blade v. Chicago, etc., R. R 522 Blade v. Nolaud 164, 166, 167, 004 Blades v. Higgs 59, 300, 341 Blake v. Barnard 334 Blake v. Buffalo Creek R. R. Co 246 Blake v. Crowninshield 403 Blake v. Livingston 688 Blake v. Niles 685 Blakey v. Blakey ... 676 Blauciiard v. Baker 148 Blanchard v. Isaacs 287 Blanchard v. Page 279, 524 Blanchard v. Russell 130 Blanchard v. Stearns 148 Blanchard v. W. U. Tel. Co 730 Blandford v. Andrews 704 Blankman v. Vallejo 680 Blalack v, Phillips 406 Blattmacher v. Saal 727 Bliss v. Greeley 145 Bliss v. Lawrence 99, 3i'>l Bliss V. Lee 169 Bliss v. Thompson 703 Bliu V. Pierce 364 Blinn v. Torre 488 Elodget v. Blodget 664 Blodgett V. Conklin 458 Blodgett V. Durgin 635 Blood V. French 478 Blood V. Goodrich 234 Bloodgood V. Zeily 197 Bloomer v. Denman 222 Bloomer v. State 334 Bloss V. Kittridge 110 Blossom V. Champion 526, 528 Blore V. Sutton 236 Blount V. Robeson 246 Blount V. Windley 514 Bliime V. Bowman 679 Blunt V. Boyd 81, 391 Blunt V. Walker 568 Blydenburg v. Thayer 366 Board of Supervisors v. Brodhead. . . 463 Board, etc. v. Strader 729 Boardraan v. Bickford 41G Boardman v. De Forest 704 Boardman v. Gaiilard 229 Boardman v. Keeler 694 Boardman v. Paige 18 Brown v . James 353 Brown v. Kendall 161, 33^* Brown v . Laugford 106 Brown v. Leavitt 611 Brown v . Maine Bank 359 Brown v. Nevitt 130 Brown v . Newall 25 Brown v. O'Brien . . 104 Brown v. Orlaud 115 Brown v. Payson , 473 Brown v . Pforr 289 Rrown v. Post 250 Brown v. Rundlett 263 Brown v. Seymour 337 Brown v. Slater 120 Brown v . State 440 Brown v. Staton 487 Brown v. Taber 611 Brown v. Vandyke 193, 198 Browning v. Atkinson ''15^( Browning v. Long Island R. R. Co. . 139 Brownlow v. Metropolitan Board of Works 145 Brubaker v. Robinson 381 Bruce v. Coleman 427 Bruce v. Davenport 348 Bruce v . Loi'd 598 Bruce v. Parsons 380 Bruce v . We.scott 543, 558 Bruen v. Hone 193, 197, 198 Bruuer v. Wheaton 88 Brunswick v. Slowman 345 Brush v . Reeves 563 Brutt V . Picard 558 Bryan v . Baldwin 277 Bryans v. Nix 533, 523 Biyant's Case 43S Bryant v. Damariscotta Bank 518 Bryant v. Edson 130 Bryant v. Johnson ^ ..... - 490 TABLE OF CASES. xlv Bryant v. Moore 232, 227 Bryant v. Rich 265 Biyant v. Sinioneau 417 Brydges v. Lewis 397 Bucknam v. Bucknam 709 Buchanan v. Comstock 41 Buchanan v. Marshall 635 Buchanan, etc., Co. v. Woodman . . . 502 Buchegger v. Schultz 512 Buck V. Albee 106 Buck V. Burk 579 Buck V. Squires 717 Bucklin v. Chapin 195 Buckley v. Blackwell 716 Buckley v. Leonard 313, 314 Buckley v. Lowery 411 Buckley v. Wells 215 Buckmaster v. Smith , . 424 Buddington v. Shearer 318 Buell V. Chapin 245 Buffington v. Gerrish 424 Buffum V. Chadwick 279 Bugbee v. Sargent 327 Building Association v. Ashmead. . . 657 Bull V. Colton 336 Bull V. Sims 544, 553, 564, 565 Bull V. St. Johns 452 Buller V. Fisher 526 Bullene v. Hiatt 422, 423 Bullet V. Bank of Pennsylvannia . . . . 166 Bullock V. Babcock 160 Bullock V. Boyd 195, 197, 198 Bulkley v. Clkrk 379 Bulkley v. Finch 697 Bulkley v. Landon 403 Balkeley v. Noble 210 Bunneirv. Greathead 200, 201 Buuu V. W"inthrop 674 Banker v. Athern 548 Bunker v. Miles 249 Bunce v. Gallagher 663, 664 Burchell v. Slocock 563 Burch V. Newberry 156 Burdick v. Green 568, 570, 595, 643 Burghart v. Gardner 456 Burke v. Haley ... 485 Burke v. Isham 198 Burks V. Shain 728 Burke v. Wolfe 191 Burkhalter v. Second Nat. Bank 630 Burkholder v. Plank 695 Burkhart v. Jennings 428 Burling v. King 466 Burling v. Read 62 Burlingame v. Bell , 425 Burmester v. Norris 231 Burns v. Graham 581 Burns v. Poulsom 264 Burnap v. Marsh 265, 448 Burnham v. Allen 115 Burnham v. Corn well 723 Burnham v. Stevens 147 Burue v Cummiugs 97 Burr V. B-^ers 392 Burr V. Sickles 245, 253 Burrall v Jacot 401 PAGE. Burrill v. Phillips 240 Burrill v. Watertown Bank aiid Loan Co 573 Burridge v. Nicholetts 59 Burroughs v. Housatonic R. R. Co. . . 145 Burroughs v. Lowder 684 Burrough v. Skinner 481 Burroughs v. Wright 425 Burson v. Huntington 565 Burson v. Kincaid 687 Burt V. Cassity 664, 669 Burt V. Dewey Ill Burtis V. Thompson 724 Burton v. Driggs 379 Burton v. Dickinson 208 Burton v. Gleason 663, 666 Burton v. Scherpf 340 Burton v. Stewart 376, 615 Bury V. Pope 292 Bush V. Brainard 305, 317 Bush V. Cole 480 Bush V. Golden 172 Bush V. Lathrop 364 Bush V. Miller 221 Bushel V. Com. Ins. Co 421 Buster v. Newkirk 301 Butler V. Duval 631 Butler V. Eschleman 726 Butler V. Evening Mail Association. . 260 Butler V. Lee 380 Butler V. Mercer 346 Butler V. Merchants' Ins. Co 208 Butler V. Kawson 545 Butler V. The Arrow 531 Butler V. Viele 668 Butts V. Collins 405, 406 Butt V. Hoge 644 Button's Case 333 Button V. Hampson 678 Butterfield v. Seligman 385 Battermere v. Hays 397 Butterworth v. Crawford 294 Butter worth v. Peck 622 Byers v. Bostwick 384 Byers v. McClanahan 677, 678 Byram v. McGuire 288 Byrne v. Stewart 430 Bysbie v. Wood 360 Cabarga v. Seeger 121 Cabot v. Haskins 96, 97, 375 Cadbury v. Duval 328, 331 Cadogan v. Cadogan 201 Cadogau v. Kennett 372 Cady V. Shepard 59a Cafiero v. Welsh 521, 531 Cage V. Acton 672 Cahill V. Benu 437 Cahill V. Eastman 161 Cahoon v. Bank of Utica 605 I'ahoon v. Moore _587 Cairnes v. Bleecker 234, ' 256 Cakish v. Ross 446 Calcroft V. Harborough 203 Caldwell V. Cassidy 626, 633 CaldweUv. Fifield 56g xlvi TABLE OF CASES. PAGE. Caldwell v. Haley 411 Caldwell v. Mohawk, etc., Bank, 518, 520 Caldwell v. Went worth 177 Calhoun v. Atchison 88 Calhoun v. Cozzens 415 Calk V. Stribbing 712 Calkins v. Barger 144 <'alkins v. Lock wood 355 Call V. Barker 714 Calla.an v. Boazman 177 Callenderv. Dinsmore 118, 122, 128 Calton V. Bragg 481 Calvert v. Carter 177 Camberford v. Hall 412 Camden v. Creel 71 1 Cameron v. McFarland G74 Camidge v. Allenby 578 Camp V. Barker 389 Camp V. Bostwick 185, 186 Camp V. Elston 667 Camp V. Tompkins 563 Campbell v. Bristol 458 Campbell v. Chamberlain 427 Campbell v. Cothran 450 Campbell v. Erie Railway Co 157 Campbell v. Evans 63 Campbell v. Hall 411 Campbell v. Kincaid 444 Campbell v. Mesier 183 Campbells V. Patterson 685 Campbell v. Pettengill 625, 628 Campbell v. Vedder 177 Canal Bank v. Bank of Albany. . 589, 601 621, 642 Canal Commissioners, etc. v. People, 712 Canal Co. v. Wheeley 738 Candler v. Rossiter 374, 382, 394 Canfield v. Merrick 379 Caniif v. Myres 457 Canning v. Williamstown 345 Cannon v. Alsbury 102 Cannon v. Windsor 384 Cansee v. Anders 339 Cantey v. Duren 674 Cantrell v. Col well 215, 288 Capehart v. Carradine 726 Capel v. Thornton 477 Capp V. Topham 487 Cardell v. McNeil 569, 599 Carey v. Burtie 187 Cary v. Hotailing 285 Carey v. McDougald 511 Carey v. Smith 153 Carhart V. Auburn Gas-light Co 40 Carliam v. Fisk 294 Carley v. Dean 403 Carlisle v. Ramsey 164 Carlisle v. Tindall 667 Carlos v. Fancourt 548 Carlton v. Bailey 106 Carlton v. Felder 151 Carman v. Plass 583 Carmichael v. Bodfish 158 Ciirmicliael v. Buck 286 Carmichael v. Pendleton 449 Carmichael v. Pennsylvania Bank . . . 620 PAGTI. Carnt^y v. Dennison 259 Carneal v. Day 683 Carnes v. Piatt 468 Carpenter v. BuUer 680 Carpenter v. Rommel 689 Carpenter v. Johnson 368 Carpenter v. Oaks 596 Carpenter v. Stevens 703 Carpenter v. White 202 Carr v. Card 92 Carr v. Moutefiore 1 18 Carr v. Nat. Security Bank 503, 505 Carr v. Rowland 596 Carr v. Weld 470 Carrington v. Didier 422 Carrel v. Collins 704 Carroll v. Boston Marine Ins. Co. . . . 358 Carroll v. Charter Oak Ins. Co 371 Carroll v. Staten Island R. R. Co 136 Carroll v. Weiler 318 Carroway v. Chacey 718 Carson v. Allen 382 Carson River, etc., Co. v. Bassett. . . . 408 Carsteus v. Barustorf 442 Carter v. Collar 398 Carter v. Cunningham 243 Carter v. Davis 454 Carter v. Graves 394 Carter v. Hamilton 131, 610 Carter v. Harrison 148 Carter v. Hope 398 Carter v . Jones 163 Carter v . Smith 626 Carter v. Talcott 465 Carter v . Taylor 664 Carter v. White 374 Cartmell v. Allard 241 Cartwell v. Menifee 458 Carver v. Braintree Manuf. Co 415 Carver v. Hayes 399 Carver v. United States 463 Carvill v. Garrigues 400 Carvick v. Vickery 591 Cary v . Hotaling 406 Case v. Abeel 241 Case V. Berry 190 Case V. Boughton 112, 701, 702 Case V. Burt 621 Case V . Fishback 163 Case V . Hotchkiss 194 Case V . Morris 506 Casey v . March 455 Cass v. Boston and Lowell R. R. Co,. 241 Cassard v . Hinmau 266 Castle V. Duryea 337 Castner v. Sliker 347 Castellian v. Thompson 275 Castrique v. Bernabo 41 Cate V. Patterson 511 Cates V. McKinuey 728 Cathcart's Appeal 365 Cathcart v. Keirnaghan 486 Catholic Bishop of Chicago v. Bas- ser 376, 882 Catlin v. Bell 255 Catlin V. Qunter 565 TABLE OF CASES. xlvii PAGE. Oatterall v. Hindle 284 Caul V . Gibsou 105 Caulkins V. Fry 671 Causee v. Anders 346 Cave V. Hall 567 Cawthon v. Coppedge 205, 206, 207 Cayuga Bridge Co. v. Stout 734 Cayuga Cuauty Bank v. Bennett. . . . 629 Cayuga County Bank v. Hunt.. . 620, 621 Cavuga Co. Bank v. Warden, 634, 644, 645 Cecil V. Cecil 210 Cecil V. Mix 596 Cecil Bank v. Farmers' Bank 275 Cedar Rapids, etc., R. R. Co. v. Stew- art 218 Center v . Finney 161 Central Bank of Brooklyn v. Lang . 541 Central Bank of Troy v. Heydorn. . . 704 Central Bridge Corporation v. Abbott, 380 Central Bridge Co. v. Sleeper 734 •Chadbourne v. Duncan 380 Chad wick v. Upton 438 Chaddock V. Vanness, 602 Chafin v. Lincoln Savings Bank. . . . 515 Challouer v . Walker 693 Chahoon v. State 469 Cliatiee v . Joues 185 Chambers v. Caulfield 200 Chambers v. Davidson 273 Chambers v . liodges 434 Chambers v. Lewis 405 Chambers v. McCormick 481 Chambers v . Neal 493 Chamblin v. Schlichter 664 Chamberlyn v. Delarive 571 Chamberlain v. Chandler 265 Chamberlain v. Sawyer 706 Chamberlain v. Williamson 727 Champlin v. Haight 329 Champlain v. Champlain 654 Champlain and St. L. R, R. Co. v. Valentine 712 Champenoes v. Fort 177 Champion v. Joslyn 192, 195 Champion v . Terry 605 Chandler v. Belde'n 276 Chandler v. Fulton 529, 530 Chandler V. Hoyle 241 Chandler v. Johnson 106 Chandler V. State 386 Chapin v. Potter 115 Chappell V. Akin 658, 660 Chappell V. Phillips 400 Chapman v. Atlantic and St. Law- rence R. R. Co 145 Chapman v . Brooks 359 Chapman v. Butler 153 Chapman v. Haley 364 Chapman v. Keane 647 Chapman v . Lathrop 698 Chapman v. N. Y. Cent. R. R. Co. 387, 304 Chapman v. Pickersgill 140 Chapman v. Phillips 450 Ciiapman v. Rich 384 Chapman v. Robertson 130 Chapman v . Rose 566 PAGE. Chapman v. Searle 576 Chapman v. White 503, 505, 623 Chappedelaine v. Deckenaux 190 Charlton v. Lay Ill Charleston v. Stacy 388 Charlton v. Wright 349 Charnley V. Dulles 511 Charles v. Dana 389 Charles v. Hoskins 691 Charles River Bridge v. Warren Bridge 124, 731 Chartiers and Robinson Turnpike Co. V . McNamara 447 Chace v . Hinman 696 Chase V. Barrett 162 Chase v. Bradley 122, 123 Chase v. Bridge Co 734 Chases Exr. v. Burkholder 106 Chase v. Elkins 434 Chase v. Ewing 205, 206, 307 Chase v. Lockerman 351, 353 Chase v. Sutton Manuf. Co 737 Chastain v. Bo\vman 214 Chattield v. Wilson 36 Chatham v. Brainerd 709 Chatham v. Niles 196 Chautauqua Co. Bank v. Davis 596 Chautauque Bank v. Risley 43 Chauncey V. Yeaton 40*j Cheek v. Roper 631 Cheeseborough v. Millard. . .183, 353, 353 Cheever v. Merrick 438 Cheney v. Beals 534 Chenery v. Goodrich 189 Cherry v. Long 486 Cherry v. Monroe 155 Cherry v. Slade 714 Cherry v. Stein 296 Chenango Bridge Co. v. Lewis 731 Chester v. Wheelwright 177 Chesapeake & Ohio Canal Company v. Knapp 392 Cheong wo v. Jones 402 Chew V. Morton 718 Chevallier v. Wilson 104 Chewing v. Singleton 164 Chicago & Great Eastern R. R. Co. v. Dane 84, 86 Chicago V. Sheldon 134 Chick V. State 336 Chidsey v. Canton 733 Chidsev v. Porter 330 Chilcott V. Trimble 108 Childs V. Davidson 540 Childs V. Delaney 409 Child V. Dwight 436 Child V. Eureka, etc.. Works. . . .403, 436 Childs V. Monins 588 Child V. Morley 375 Child V. Starr 711 Child V. Sun Mutual Ins. Cc 139 Chinn v. Chinn 253 Chinoweth v. Haskell 715 Chilton v. People 675 Chirac v. Reinicker 469, 473 Chisholm v. Gadsden 141 xlviii TABLE OF CASES. PAGE. Chittenden v. French ^^^'^^l Chittenden v. Hobbs ^^^ Cholmondeley v. Clinton ^wa Chouteau v. Leech • • • fl^ Christie V. Sawyer • • 437, 45. Christmau v. Commonwealth OJi Christmas v. Russell f^^ Christopherson v. Bare • • • • ^^- Christy's Appeal 205, ^W Christy v. Douglas *^i Christy v. Smith ■^i^Y,' Christy v. Price Chrysler v. Renois . Church V. Feterow. Church V. Frost... Church V. Mumford Clark V.Ray •••• ^»" Clark V. Reed 16b. 394 Clark V. Rogers • • • ^«'^ Clark V. Roop ^^* Clark V. Savage Clark V. Shee • • • Clark V. Sigourney -J-^' 389 546 402 41 379 56S 189 285 94 G08 Churchman v. Smith 190 Churchhill v. Abraham y/_ Churchill v. Hulbert Churchill v. Reamer Chubbuck v. Vernam Ciples V. Blair ••• Cincinnati, etc., R. R. Co. 341 126 I 198 359 '. Pontius, 531 ciuciuaati',etc.,R.R.Co.v. Waterson 305 Citizens' Bank v. Qrafflin OQO Citizens' Bank v. Howell ou City Bank v. Bangs ■••'■•••■■•■■•• iV^ Citv Bank v. Farmers', etc.. Bank. . . 51^ City Discount Co. v. McLean l/» Clark V. Sisson Clark V Clark V. Smythies Clark V. Thompson Clark V. Todd Clark V. Van North wick Clark's Ex'rs. v. Van Reimadyck Clark V. Wagoner Clark V. Ward ■ Clarke v. Whitaker Clark v. Wilson Clarkson V. De Peyster Clason V. Baily ^^^' -st Classon v. Stearns ^^ Claussen v. Lafranz '-^' Clary v. Hoagland ^** Clay V. Spratt ^^^ Clayton v. Anthony ^oi Clayton v. Gosling ^'^^ Clemaus v. Caldwell Clements v. Marston Clements v. Moore ^^^''- II' 370 403 223 234 715 420 599 20* 25S 106 725 ,^idson 276, 3(33 ^ 5rnk;f New Haven vjerkins, 157 Cemson v^ ---■•-;_- .398 City of Boston v^ Richardson. . . 713, 714 | ^{e^or ^^ ^^^ ^ ^ Co. v. Bartram, 345 City Council v. Patterson ^'» City of Galveston v. Menard -IQ City v.Lamson 684, 688 Cleveland, etc., R. R. Co. v. Bartram, 345 Cleveland v. Barrows • • • ■ ^^ Cleaveland v. Stewart ■<5d», ^^y Claasen v. Shaw a: •.• * ' ' T-^' ' i ' ??a Claflin V. Farmers & Citizens Bank, b^4 Claire v. Bailey 1|| Clap V. Cof ran 1 ciosson v.'stearns 259 Clap V.Day ,g Clark V. Adams ^-'^ Clark V. Arnold ••;••••••. • " • ' tnn Clark V. Bank of Wheeling 341 Clark V. Barnwell ■ Clark V. City ■ • • ■ Clark V. Clark 0% Clark V. Covenant Ins. Co 663, 66b Clarke v. Courtney -'^ ' Clay V. Crowe Clark V. Cushman • • • Clark V. Fairchild • . • 196, Clark V. Farmers' Manuf. Co 00 1, Clark V. Foot Clark V. Ford Clark V. Garther ••• ^^A^ Clark V. Qaylord 92.101 Clark V. Gilbert ■ • • • f • ^ Clark V.Gray ^^^' fi% Clark V. HoUiday fjl' Clarke v. Johnston ^^^ Clark V. Keliher -^' W n* ' 07^ Clark V. Lowell & Lawrence R. R. Co., ^75 Clark V. Mayor, etc., of N. Y.. . . . . . • wi Clarke Nat. Bank v. Bank of Albion, 612 ^ ^.^ Clark V. New Jersey Steam Nav. Co., 42 ^"ij;-^;-; J,i,, Clealand v. Walker *"^' Clifton V. Burt %'f-^ Clinton Bridge 'f^ Close V. Miller g^ 350 266 525 688 061 165 476 385 574 161 153 Cloudas' Es'r. v. Adams ^''^ Clough V. Brown • • • • 'ti\^ Cloustan v. Shearer i^^-" ""^ Clussman v. Merkel ^-^^ Clute V. Robinson • • • ^"" Clutev. Small 557, 5o^ Clyde V. Simpson 'T^ Cobb V. Arundell ^^^ Cobb V. Commonwealth "^^* Cobb V. Howard ^^^ Cobbs V. Fountain ^^^ I Cobbett V. Hudson • • • ' I Coburn V. Odell ^63, -00 1 Cock V. Richards * j;* Cock V. Weatherby ^^ ' Cochran v. Chittwood *;^-> Cochran v. Newton p^ Cochran v. Paris ' * Cochran v. Tatuni '^^^ Cochrane v. Johnson Cockrill V. Kirkpatrick Cockerhani v. Nixon ■ (.'odman v. Jennings Coddington v. Gilbert Parker 416 I Codwise v. Gelston. . • i'ra" • •„ 438 I Cody v. Quarterman. Clark V. Randall ^^° ^" J^ ^ 254 313 388 423 660 350 357 TABLE OF CASirlS. xlix PAGE. CofHn V. Anderson 513 Coffin V. Coffin 345 Ccffin V. Ewer 491 Coffin V. Henshaw 504 Coffin V. Landis 289 Coffi'e V. Meigs 404 Coggs V. Bernard 496 Coggill V. American Exchange Bank, 589 601 Coggswell V. Baldwin 307 Coggeshall v. Coggeshall 405 Cohen v. Myers 659 Cohen v. Payet 270 Cohen V. Sharp 666, 667 Coit V. Millikin 675 Colt V. Sheldon 448 Coit V. Wallace 722 Colbert v. Daniel 354 Colborn v. Pomeroy 393 Colborne v. Stockdale 699 Colburn v. Woodvvorth 269 Colby V. Norton 719 Colcock V. Ferguson 671 Cold Spring Iron Works Vi Tolland, 711 Coles V Anderson 154 Coles V. Coles 380 Cole V. Cottingham 724 Cole V. Drew 148 Cole V. Haynes 709 Cole V. McLellan 450 Cole V. Eevnolds 19 Cole V. Pteilly 681 Cole V. Robins 671 Cole V. Turner 335, 336 Coleman v. Cooke 550 Coleman v. Eyre 1 02 Coleman v. First Nat.Bankof Elmira, 239 259, 260 Coleman v. Frazier 267 Coleman v. Lansing 609 Coleman v. Stark 233 Coleman v. White 201 Colgin V. Henley 404 Collen V. Wright 257, 258 Collender v. Dinsmore 532 Collinson v. Newcastle & Darlington Railway Co 42 Collins V. Banbury 115 Collins V. Barksdale 654, 655 Collins V. Blantern 700 Collins V. Buckeye Ins. Co 257, 260 Collins V. Case 240 Collins V. Lincoln 546 C/Ollins V. Westbury 671 CoUingbourne v. Mantell 398 Colley V. Merrill 271 Collyer v. Fallon 361 Colquit V. Bonner 366 Colson V. Wilson 423 Colt V. Gregory 456 Colt V. McMahan 525 Col urn bet V Pachees 718 Colville V. Beslv Ill Col via V. Holbrook Ill, 262. 263 Colwell V . Lawrence 131 Combs V. Scott 233 O fAQE, Comeggs V. Vasse 361 Commercial Bank v. Benedict 166 Commercial, etc., Bank v. First Nat'l Bank 508 Commercial Bank of Albany v. Hughes 628 Commercial Bank v. Jones 233 Commercial Bank of Clyde v. Mar. Bank 517 Commercial Bank v. Nolan 102, 515 Commercial Bank of Lake Erie v. Norton 230, 236, 243 Commercial Bank v. Norton OlO Commercial Bank of Albany v. Ten Eyck ■. ... 509, 520 Commercial Bank of Pennsylvania v. Union Bank of New York 251 Commercial Bank of Kentucky v. I Varnum 560, 641 ' Commercial Bank of Buffalo v. War- j reu 219 I Commercial Bank v. Wood 391 j Commissioners, etc. v. Beckwith. . . . 708 , Commissioners, etc. v. Gherky 197 Cmiimissioners v. Harrington 379 I Commissioners, etc. v. McCann 150 j Commissioners v. Purdy 457 Commissioners v. Way 684 I Commissioners v. Younger 438 Common Council of Alexandria v. Corse 691 Commonwealth v. Alger .... 710 Commonwealth v. Beaman 299 Commonwealth v. Berger 493 Commonwealth v. Chace 299 Commonwealth v. Charlestown 710 Commonwealth v. Eyre 333 Commonwealth v. Fisher 736 Commonwealth v. Gibbs 448 Commonwealth v. Harnden 478 Commonwealth v. Holmes 691 Commonwealth v. Judges 433 Commonwealth v. Kendig 679 Commonwealth v. Lakeman 339 Commonwealth v. Lohey 202 Commonwealth v. Mann 334 Commonwealth v. Meriam 202 Commonwealth v. Mitchell 343 Commonwealth v. Newburyport Bridge 731, 732 Commonwealth v. Newell 336 Commonwealth v. Newton 434 Commonwealth v. Passmore 480 Commonwealth v. Power 344 Commonwealth v. Randall 342 Commonwealth v. Ronald 455 Commonwealth v. Ruggles 332, 335 Commonwealth v. Sessions of Nor- folk 345 Comjuou wealth v. Thompson 342 Commonwealth v. Walton 722 Commonwealth v. White 332 Commonwealth v. Whitney 490 Compton V. Jones . 98, 370 Compton V. Richards 294 Comstock ▼. Comstock 350 I TABLE OF CASES. PAGE. Comatock v. Hannah 615 Comstock V. Joliuson 156 Concord Bank v. Bellis 671 Concord Bank v. Gregg 266 Conklin v. Havens 301 Condit V Baldwin 233 Condit V. Blackwell 250 Cone V . Donaldson 450 Coney v. Saunders 290 Congar v. Chicago and Northwestern R. R. Co 232 Congar v Galena and Chicago Union R R. (b 223 Conkey v . Bond 246 Conklin v. Harris 419 Conkling v. King S'^'O Conley v. Burson 215 Conn V. Thornton 550 Connecticut Mutual Life Insurance Co. V. Cleveland, etc., R. R. Co., 544, 695 Conobn v. Van Mater 866 Conrad V Atlantic Insurance Co 529 Conroy v. Gale 739 Conroy v . Warren 567 Couroe V. Birdsall 671 Considerant v. Brisbane 279 Continental Bank v. Bank of Com- monwealth 508 Conway v. Cutting 363 Conway v. Nichols 202, 204 Con well V. Voorhees 207 Conyngham's Appeal 180 Cooke V. Barr 117 Cook V. Beal 337 Cook V. Bradley 108 Cooke V . Colehan 550 Cook V . Combs 131 Cooke V. Davis 546 Cook V. Ferral's Adm'rs. . . 119, 559, 579 Cook V. Litchfield 644 Cook V. Martin 628 Cook, Woodbridge v. Perkins 359 Cook V. Ritter 464 Cook V. Satterlee 547, 548 Cook >. The Champlain Transporta- tion Co 161 Cookv. V^mout 400 Cooley V. Betts 253 Cooley V. Willard 231 Coolidge V. Ruggles 356, 370 j Cousins y Coombs V. Jordon 329 "^ Coombs V. Newton 700 Coon V . S wan 469 Coon V.Smith 719 ('oonrod v. Coonrod 330 Coonloy v. Anderson 110 Cooper V. Bailey 591 Cooper V. Berry , 379 Cooper V. Dedrick 583 Cooi)er V. Hamilton 456 Cooper v. McCrimmin 105 Cooy)er v. McTunkin 342 Coojjer v. Rankin 218, 234 Coo[)er v. Williams 730 Cooper V. Wray . 207 Coosa Biver Steamboat Co. v. Barclay, 523 PAOB. Coote V. Bank of D. Lted'StateB 504 Coote v. Bertz 304 Coover v. Davenport 727 Cope v. Albinson 71 Cope v. Dodd 129 Copeland -v. Merchantile Insurance Co 237,247,479 Coppin v. Walker 281 Copes V. Matthews 262, 393 Coquillard v. Suydam 179 Corbin v. American Mills 273 Crosby v. Bean 156, 175 Cordova v. Enowles 225 Cordray v. Mordecai 123 Corey v. People 55, 339 Corey v. Russell 456 Corey v. White 601. 647 Carl vr. Riggs 391 Cornell v. Moulton 640, 641 Corning v. Southland 256 Corning v. Strong 224 Corning V. Troy Iron Factory, 652,718,719 Cornish v. Willson 351 Corser v. Craig 371 Cortelyou v. Van Brunt 708, 710 Cosgrove v. Ogden 227 Coster V. Watson 446 Costin V. Baxter 196 Costigan v. Mohawk & Hudson R. R. Co 141,269 Cottom V. Holliday 249,258 Cotton V Lake 400 Cotton V. Seavey 715 Cotton V. Sharpstein 461 Cotten V. Williams 362 Cottrill V. Conklin 596 Cottrell V. Jones 36, 143 Cottle V. Payne 698,704 Coucli V. Terry 182 Coughtry v. Globe Woolen Co. . 136, 138 Couliug V. Coxe 134 Coulter V. Richmond 601 Coulter V. Robertson 106 County of Beaver V. Armstrong. .. 688 Counsel v. Vulture Mining Co., etc. . 579 Courcier v. Ritter 242 Courrier v. Cleghorn 413 Coursey v. Covington. 389 Coursin v. Tedlies Adm'r 538 Paddon 397 Couscher v. Tuolsln 173 Courtney v. Carr 423 Courtney v. New York City Insur- ance Co ^''^1 Courtenay v. Earle 135 Couturier v. Hastie HI Coutts V. Graham 294 Cover V. Davenport 725 Covenhoven v. Shuler 655, 661^ Coventry v. Barton 272, 487 Coventry v .(iladstone 529 Covington v. Lide 404 Covillv. Hill 522,523 Covin V. Phy 444 Coward v. Baddleley 338 Cowles V. Balaer 817 TABLE OF CASES PAGE. Cowles V. Kidder 863 Cowing V. Altman 624 Oowie V. Storm 538 Cowper V. Clark 651,652 Cowperthwaite v. SliefEeld 622,034 Cox V. Clift 667 Cox V. Freedley 708 Cox V. Hoffman 230 Cox V. Livingston 460 Cox V. Matthews 294 Cos V. Middland Counties Rail. Co. 226 Cox V. Miluer 422 Cdx v. Peterson 531 Cox V. Reinhardt 413 Cox V. Robinson 420 Cox V. Smith 512 Cox V. Sprigg 369 Cox V. Sullivan 445 Cox V. Tyson 656 Cox V. Vanderkleed 345 Coxe V. Phillips 142 Coxe V. Whitney 343 Coyle V. Cleary 718 Coyle V. Fowler 673 Coyle V. Smith 628 Craft V. Fleming 598 Craft V. Lathrop 650 Craig V. Ely 436 Craig V. Mippouri 400 Craig V . Parkis 365, 584 Craig V. Twomey 37, 143 Craig V. City of Vicksburgh 688 Craig V. Wells 123 Craker v. R. R 265 Cram y. Bangor House. 879 Cram v. Sherburne 634 Cramer v. Perry 627 Crandall v. Schroeppel 603 Crane v. Grassman 394 Crane v. Hancks 167 Cranmer v. Graham 402 Cranston v. Plumb 656 Cratchley v. Mann 542 Craven v. Ryder 526 Craver v. Wilson 701 Cravath v. Plympton 405, 409 Crawford v. Bank of Wilmington . . . 513 Crawford v. Foster 680 Crawford v. McKissack 472 Crawford v. Morrell 403 Crawford v. Summers 167 Crawshaw v. Roxbury 100 Creamer v. Stephenson 693 Creaths Adm'r v. Sims 153,156 Creed v. Lancaster Bank 209 Crewe v. Crewe 203 Creighton v. City of Toledo 74 Crevier v. Mayor, etc., of New York, 605 Cridler v. Curry .5H3 Crichfield v. Porter 459 Crill v. City of Rome 652 Crittenden v. Strother 471 Crocker v. Higgins 104 Crocker v. Xew London, Williamantic & Palmer R. R. Co 84 Crocker v. Pierce 422 Crocker v. Whitney 3,59 Crockett v. Dodge 184 Crooker v. Rogers 153 Crosby v. Berger 469, 472 Crosby v. Covington 205 Crosby v. Huston 130 Cross V. Haskius 227 Cross V. Lewis 292 Crosley v. Roub 594 Crossman v. Liudsley 414 Crompton v. Pratt 177, 178 Cromwell v. Hewitt 597, 599 Cromwell v. Lovett , 568 Crooke v. Andrews 606 Crooker v. Bragg 713 Crow V. Mechanics and Traders' Bank, 516 Crow V. Rogers 375 Crow V. State 332 Crowder v. Austin 484 Crowe V. Clay 165 Crowell Y. Bebee 719 Crowell V. Crispin 261 Crowell V. Maughs 719 Cruchley v. Clarence 542 Cruger v. Armstrong 567 Cruger V. McLaury 181 Cruikshank v. Brown 393 Cruikshauks v. Robarts 660 Cruzan v. Smith 216, 227 Cryden's Appeal 329 Cryst V. Cryat 587 Cubitt V. Porter 713 Culver V. Bigelow .... 282 Culver V. Blake 377 Culley V. Hardenburgh 94 Cumberland Coal and Iron Co. v. Hoff- man Steam Coal Co 45 Cuming v. Brown 529 Cummins v. Cassilly 218 Cummins v. McLain 266, 461, 464 Cummins v. White 174 Cumminga v. Brown 527 Cummings v. Dennett 90 Cummings v. Gann 275 Cummings v. Gassett 399 Cummings v. Harris 276 Cummings v. Henry 671 Cummings v. Klapp 392 Cummings V. Mayor etc., of Brooklyn 152 Cummings v. Noyes 405 Cummings v. Shand 148. Cummings v. State of Missouri 432 Cumpston v. McNair 591 Cunliffe v. Whitehead 597 Cunningham v. Bucklin 147 Cunningham v. Freeborn 364 Cunningham v. Kimball 404 Cunningham v. Soules 260, 263 Curra v. Misa 612 Curry v. Rogers 105, 388 Currant v. Jago 209 Carrier v. Currier 685 ( 'urrier v . Hodgdon 370 C urrier v . Howard 363 Curtiss V. Curtiss 187 Curtiav. Feidler 3831 lii TABLE OF CASES. Curtiss V.Howell , 118 Curtiss V. Leavitt 107,498, 499 Curtis V. Stever 411 Curtis V. United States 261 Cusliiug V . Gore 398, olO Cusliman v. Haynes 551 Cushman v . Jewell 409 Cushman v. Kyan 343, 347 Cutler V. Potts 182 Cutler V . Wittemore 677 Cutter V . Copelaud 285 Cutter V. Emery 183 Cutter V. Powell, 181, 376,383, 383, 386, 399 Cutts V. Guild 366 Cutts V . Hussey 710 Cutts Y . Perkins 370 Cuyler v . Stevens 632, 644 Da Costa v. Davis 704 Da Costa v. Jones 142 Dade v . Herbert 364 Dagget V. Tallman 704 Dahl V. Pross 065 Dair v. United States 677 Dakin v. Demming 198 Dale V . Kimpton 370 Dale V . Roosevelt 702 Dale V. Wood 342 Dalton v . Coatswortli 164 Dalrymple v. Hillenbrand 600 Daly v. But. and Drovers' Bank, 516, 517 Daly v. Grimly 144 Dalzell V. Crawford 329 Damport v . Sympson 150 Dana v . Fiedler 121 Dana v. Jackson Street Wharf 710 Daniel v . Adams 479 Daniel v. Ballard 185 Daniel v. Bowles 723 Daniel v. Green 175 Daniel v. North 292 Daniels v. Barney 253 Daniels v . Bo we 695 Daniels v . Kyle 506 Daniels v. Wilber 192 Danklessen v. Braynard 361 Daun V . Kingdom 199 Darby v. Boatmans' Savings Inst. . . . 515 Darden v. Cowper 180 Dart V . Orme 663 Dastor v. Brown 119 Daubighny v. Duval 277 Davenport v. Gentry 358, 362 Davenport v. Gilbert 644 Davenport v. Peoria Marine and Fire Insurance Co 227 Davenport v. Wheeler 196 Da vies v. Dodd . , 165 Da vies v. Wilkinson 547 Davies v . Williams 62 Davis v . Barney 120 Davis V. Baxter 401 Davis V. Bomford 726 Davis V. Campbell 322 Davis V. Clarke 564, 565, 621 Davia V. Commonwealth 427, 476 PAGE Davis V. Davia 164 Davis V. Duke 211 Davis V. Duke of Marlborough... . 058 Davis V. Garr 539 Davis V . Garret 423 Davis V. Gillett 682 Davis V. Herndon 360 Davis V . Hull 674 Davis V. Judge 718 Davis V. Lane 290 Davis V. Lusitanian 283 DaA-is V . Mann 62 Davis V . Marshall 412 Davis V. Miller 642 Davis V. McCready 616 Davis V. Nisbett 375 Davis V. Pettit 164 Davis V. Rainsford 715 Davis V. Saunders 161 Davis V. Slagle 728 Davis V. Smith 467 Davis V. Somerville 672 Davis V . Tiernan 194 Davis V. Wilson 563, 586 Davis V. Winsdor Savings Bank .... 290 Davison v . Robertson 560 Davison v . Wilson 63 Davidson v. Davidson . . 108 Davidson v . Givens 673 Davidson v . Lanier 43 Davidson v. Owens 414 Dawes v . Boylston 370 Dawkes v . De Lome 553 Dawson v. Coles 363 Dawson v. Real Estate Bank 501 Dawson v . Tibbs 400 Day V. Cummings 152, 175 Day V. Holmes 273 Day V. Noble 256 Day V. Owen 265 Day V. Southwell 253 Day V. Welles 443 Day V. Whitney 364 Dayton v. Trull 571, 637 De'Arcy v. Lyle 344, 373 Deans v. Dortch 163 Dean v. Hall 590, 599 Dean v. Madison 669 Dean and Chapter of Rochester v. Pierce , 393 Dearth v. Baker 308 Dearborn v . Dearborn 460 De Beraer v . Drew 175 Deblois v. Earle 124 Decan v. Shipper 524, 536, 538 Decker v. Fisher 299 Decker v. Hassel 269 Dedman v. Chiles 649 Deering v. Chapman. 106 Def ranee v . Austin 108 De Forest v . Frary 549 Deg V. Deg 350, 351 De Haven v. Bartholomew 379 Delaware Insurance Co. v. Delaunie, 273 Delaware, etc., Co. v. Pennsylvania, etc., Co 738 TABLE OF CASES. nil PAGE. Uelaware and Hudson Canal Co. v. Torrey 40, 148 Delafield v. State of Illinois 230 De La Hunt v. Higgins 633 De la Vega v. Vianna 130 Delius V . Cawthorne 676 Demare.-jt v. Willard 356, 357 De Marentille v . Oliver 333 De Mets v . Dagron 442 Demeyer v. Legg 711 Den V . Wright 716 Den V. Zeller 485 Denew v. Daverell 480, 487 Deninan v . McMahou 206 Denmau v. Prince 19 Dennett v. Cutts 454 Denny, in re 126 Denny v . Correll 318 Denny v. Manhattan Co 2G2, 263 Denny v. Palmer 627 Deuuison V . Goehring 169, 209 Dennison v. Story 236 Dennistou v. Bacon 611 Dennistou v. Imbrie 628 Dent V. McGrath 478, 481 Dent V . North American Steamship, Co 118,219 Denton v. Adams 670 674 Denton v. Embury 461 Denton v. Noyes '. 430, 441, 458 D'Ogley V Loveland 328 Derby v. Phelpa 725 Dernlott v. Jones, 376, 382, 383, 386, 389 De Rose v. Fay 466 De Kidder v. Schermerhorn 583 Des Arts v. Leggett 604, 605 Des Moines Valley R. R. Co. v. Graff 103 De Soto V . Dickson 681 Destrehan v. Destrehan 210 Desmond v. Rice 604 DeTastet v. Crousillant 242 DeVeney v. Gallagher 721 Devlin v. Chamblin 568 Devoe v. Penrose Ferry Co 730 Dewey v . Bradbury 678 Dewee's Estate 206 De Witt V. Walton 238 De Wolf v . Dearborn 424 De Wolf V. Murray 630, 636, 638 D'Wolf V. Pratt 364 De Wolf V. Strader 470 Dexter v . Arnold 1G8 Dexter v. Norton 171, 172 Dev v . Dox 395 De'Zengv. Fvfe 612 Dezell V . Odell 93 Dias V . Brunell 381 Diamond V. Lawrence County 688 Dibble v Duncan '. 397 Dick V . Lumsden 530 Dickey v. Johnson 391 Dickey v . Sleeper 685 Dickeu v . Neale 398 Dickens' Case 474 Dickson v. McCoy 314 PAGE. Dickinson v. Benham 418 Dickinson v. McGraw 427 Dickinson v. Winchester 380 Dickerson V. Derrickson 93 Dickerson v. Seelye 523, 531 Dickerson v. Wason 517 Dickermau v. Graves 199, 203 Didier v. Davison 11 Dietrich v. Mitchell 473 Dillard v. Crocker 457 Dillingham v. Smith 712 Dillman v. Cox 209, 210 Dillon V . Anderson 232 Dillon V. Masterson 383 Dilly V. Doig 652 Dimes v . Petley 63 Dimmick v . HaUett 484 Dingee v . Letson 400 Dingman v . Myers 490, 491 Dinsmore v. Duncan 542. 543 Dinwiddle v. Bailey 179 Disbrow v. Mills 504 Disbrow v. Tenbroeck 305, 306 Dispatch Line of Packets v. Bellamey Manufacturing Co 234 Dittoe v . Cluney 206 Diversy v. Kellogg 290 Dix V . Cobb 356, 359 Dixon V. United States 674, 684 Doane v. Broad Street Association... 710 Doane v . Willcut 123 Dobbins v. Dupree ... 439, 441 Dobyns v. McGovern 368 Dockray v . Dunn 626 Dod v. National Bank 517 Dodge V. McDonnell 228 Dodge V. Perkins 341, 353 Dodsonv. Mock 298,303 Dodson V . Simpson 328 Dodwell V. Burford 336 Doe V. Laming 116 Doe d. Daniell v. Woodroffe 65 Dogan V . Seekright 714 Dolan V . Fagan 347 Dolcherv. Fry 96 Dolde V. Vodicka 719 Dole V. Weeks 563, 586 Dolph V. Ferris 308, 310 DoUfus V. Frosch 597 Dollar Savings Bank v. Robb 448 Donald v. Suckling 376 Donaldson v . Benton 703 Donaldson v. Fuller 386 Donaldson v. Kerr 485 Donaldson v. McRoy 483 Donaldson v. Williams 164 Donnell v. Jones 437 Doolin V. Ward 483 Doolittle V. McCuUough 404 Doornady v. State Bank of Illinois, 166 Dorr V. Munsell 673, 701, 702 Dorr V . Shaw 353 Dorchester and Milton Bank v. New England Bank 344 Dorchester Bank v. New England Bank 21& liv TABLE OF CASES. PAGE. Doremus v. Williams. 362, 368 Dorlau V. Lewis 463 Dorian v. Sammis 701 Dormer v. Fortescue 164, 186, 187 Dormer v. Knight 326 Doty V. Miller 270 Doty V. Whittlesey 167 Doubleday v. Kress 283 Doughty V. O'Donnell 404 Dougherty v. Western Bank 513 Douglass V. Waer 409 Douglass V. Wilkeson 399, 541, 598 Dover v. Portsmouth Bridge 730 Dowman v . Rust 327 Downer v. Church 96 Downer v . Remer 631 Downey v. Tharp 366 Downing v. Backenstoes 562 Downing v. Herrick . 147 Downing v. Major 466 Downing V. Roberts 228 Downing v. Wherrin. .,. 663 Downes V. Bank of Charlestown . . . . 504 Downes v. Phoenix Bank 254, 502 Dow V. Cheney 423 Dows V. Cobb 524, 533 Dows V. Green . . 223, 521, 522, 727, 728 Dows V. Rush 522, 529 Dows V. Perrin 522, 523, 528 Doyle V. Knapp 91 Doyle V. Lord . 295 Doyle V . Sleeper 422 Dozier v. Freeman 227, 240 ^rake v. Drake. 400 Drake v. Jones. 669 Drake v. Rogers 556 Drakely v. Gregg 233 Draper v. Pattina 112, 554 Draper v. Randolph 377, 398 Draughan v . Bunting 104 Drayton v. Thompson, 367 Dredell v. Barber 680 Dressor v. Ainsworth . . . .-. 110 Dresser v. Blair 347 Dresser v. Dresser 379 Dresser v. Norwood 232 Drew V. Swift 715 Drexel & Co. v. Raimoud. 254 Drink water v. Goodwin 275, 281 Drink water v. Tebbits 635 DriscoU V. West Bradley and Cary Manufacturing Co 500 Drown V . Smith 403 Drury v. Hooke 724 Drury v.. Smith. . 512 Duberly v. Gunning 200, 203 Duble V. Batts 88 Dubois V . Beaver 713 Dubois V. Delaware, etc., Co 384 Dubois V. Doubleday 387 Ducelt V. Cunningham 435 Dudley v. Beck ... 473 Dudley v. Bos worth 208 Dudley v. Mayhew 42, 49, 50 Duffy V. Calvert 327, 329 Duffy v. Uobaon 225 PAQB Dugan v. United States 597 Duguid V. Edv/ards , , 22ii Duke of Norfolk v. Germaine. . 202, 203 Duke of Norfolk v. Meyers 650 Dumphy v. Kliensmith 659 Dunbar v. Johnson 196 Dunbar v. Tyler 628 Duncan v . Berlin 505 Duncan v. Commonwealth 344 Duncan v. Helm 177 Duncan v. Lyon 173, 175 Duncan v . N iles 258 Duncan v . Wickliffe 411 Dunckle v. Kocker 310 Duncombe v. Cafe 481 Dunlap V. Glidden 150 Dunlap V . Snyder 298 Dunlap V. Stetson 711 Dunlop V . Higgins 86 Dunlop V. Richards 247 Dung V . Parker 258 Dunham v. Williams 709 Dunklin County v. Clark 662 Dunklin v. Wilkins 360 Dunn V. Amos 470 Dunn V, Rector, etc., of St. Andrews, 392 Dunn V. Snell 362 Dunning v. Humphrey 426, 427 Dunning v. Roberts 264, 287 Dunphy v. Kleinsmith 9 Dupays v. Shepherd 622 Dupoiit V. Mount Pleasant Ferry Co. 279 Dupont V. Wertherman 234 Durant v. Einstein 180, 187 Durel V . Boisblanc 295 Durborrow v. McDonald 527 Durdon v. Gaskell 378 Durham v. Goodwin 317 Durham v. Price 627 Durkee v. Leland 471 Durkee V. Marshall 119, 559, 5<9 Durkee v. Vermont Central Railroad Co 89, 270 Durkin v . Cranston , 560 Durst V. Burton 266, 287 Duryea v . Whitcomb 173 Dusar v . Peril 243, 256 Dutch's Appeal „. . 207, 208 Dutcher v. Porter. 193 Dutchess Cotton Manufacturing Co. V.Davis 377 388, 547 Dutton v . Strong 712 Dutton v. Willner. 249 Duvall V. Farmers' Bank 499, 627 D wight V. New York Central Rail- road Co 242 Dwight V. Simon 464 Dyckman v. Valiente 180, 217 Dyer v . Burnham 357 Dyer v. Tuscaloosa Bridge Co 731 Dyer v. Wilbur 379 Dygert v. Bradley 337 Dygert v. Schenck 731, 732, 733 Eagle Bank v. Hathaway 631 Eames v. Salem and Lowell R. B. . , 305 TABLE OF CASES. 1> PAGE. Earhart v. Youngblood 313 Earle v . Grout 469 Earl of Bath v. Sherwin 650 Earl V. Van Alstine 308 Earp V. Cummins 270 East Hampton v. Kirk 710 East Haven v. Hemingway 712 East River Bank v. Gedney 619 East River Bank v. Kennedy 439 East India Co. v. Boddam, 'l62, 163, 167 Eastman v. Waterman 491 Eastman v. Wriglit 360 Eastwood v . Bain 621 Eastwood V. Kenyon .• 108, 397 Eaton V. Lambert 110 Eaton V. Lvon 116 Eaton V. Smith 115, 122 Eaton V . Weldon 254 Eaton V. Welton 178, 252 Eaton V. Winne 307 Eaves v. Henderson. 610 Ebner V. Bradford 414 Ebrand v. Dancer 209 Eccles V. Stevenson 460 Eckman v. Eckman 664 Eddy v. Cochrane 493 Eddy V. Herrin 671 Eddy V. Jump 64r> Eddy V. Stanton 584 Edeiin v. Sanders 67V) Edgell V. Day 483 Edgert on v. HuiF . . 737 Edgerton v . Thomas 214, 231 Edis y . Bury 565 Edie V. East India Co 591, 597 Edmunds v. Groves .... 611 Edmundson v. Penny 391 Edmonstone v. Hartshorn 251 Edsell V. Briggs 151, 184 Edson V. Fuller 98, 622 Edson V. Weston 400 Edwards v. Campbell 587 Edwards V. Crock 202 Edwards v. Dick 600 Edwards v. Edwards 285 Edwards v. Goldsmith 115, 116, 402 Edwards v. Hodding 481 Edwards v . Osgood 490 Edwards v. Parkhurst 369 Edwards v . Southgate 530 Egan V. Lumsden 419 Egerton v. Fulton National Bank . . . 5G3 Ehle V. Judson 109, 269 Eicke V. Meyer 270 Eichelberger v. Finley 510, 628 Einstein v. Holt 237, 257 Eitel V. Bracken 366 Elam V. Johnson 453 Eland v. Eland 330 Elder V. Burns 711 Elder v. Warfield 389 Eldridge V. Adams 9, 31 Eldridge v. Hill 649, 650, 651 Eldridge v. McNulty 447 Eldridge v. Smith 663 Eldridge V . Walker 250 PAOB. Elford V. Teed 620 Elkins V . Parkhurst 700 Elkinton v. Fennimore 385 Ellicott v. Peterson 108 Elliot V . Cox 275 Elliott V. Jackson 406,412 Elliott V. McClelland 452 Elliott V. Merryman 328, 329 Elliot V. Poston 351 Ellington v. Moore 410 Ellis V. Brown 582, 596 Ellis V. Craig 694 Ellis V. Duncan 144 Ellis V. Durham 155 Ellis V . Henry 379 Ellis V. Linck 503 Ellis V. Loftus Iron Co 808, 310 Ellison V. CoUingridge 550 Ellsworth V. Campbell 458 ElmendorfFv. Lansing 655 Elmore v. Brooks 264, 265 Elsam V. Fawcet 204 Elsee V. Gatward 290, 375 Eltham v. Kiugsman 143 Elting V. Vanderlyn 97 El well V. Chamberlain 283 Elwell V. Dodge 586 Ellwell V. Martin 407 Elwell V. Shaw 237 Ely V. Cooke 452 Ely V. Harvev 435, 443 Ely V. Kilborn 609, 610 Elv V. McKnight 364 Ely V. Wilcox 664 Emery v . Estes 90 Emery v. Fichout 177 Emery v. Hoyt 671 Emery v Lawrence 358 Emery v. O wings 115 Emmet's Case 455 Emmons v. Cairns 665 Enfield Toll Bridge Co. v. H. & N. H. R. R. Co 729 England v. Davidson 101 English v. McNair 126 Eno V. Del Vecchio 144 Enos V. Hamilton 243 Ensign v. Kellogg 356. 357 Episcopal Church v. Wiley 487 Epler V. Funk 594, 595 Erie City v. Swingle 730 Erie Railway Co. v. Union etc.. Ex- press ' o 106 Ernst V. Bartle ' 395 Erwin v. Blake 231, 441, 443 Erwin v. Downs 600 Erwin v. Sanders 609 Eshleman's Appeal 205 Eshlemau v. Lewis 249 Eskridge v. Glover 103 Espv V. Bank of Cincinnati 508 Espy V. Jones 723, 728 Essex Mining Co. v. BuUard 493 Estate of the Bank of Pennsylvania, 514 Estes V . Stokes 254 Esty V. Wilmot 340 LVI TABLE OF CASES. PAGE. Etchberry v. Leveille 346 Evans v. Collins 140 Evans v. Edmonds 139 Evans v. Ellis 453 Evans v. Hudson 701 Evans v. Kittrell 130 Evans v. Root 242 Evans v. Sanders 119, 121, 124 Evans v. Saul 417 Evans v. Terry 387 Evans v. Verity 193 Evans v. Watrous 241, 459, 460 Evans v. Wells 237 Evart V. Cochrane 294 Everts v. Everts 347 Evertson v. Booth 352 Evertson v. Miles 378 Everett v. Gray 376 Everett v. Vendyrea 593 Evrit V. Bancroft 378, 280 Everit v. Strong 593 Everheart v. Searle 248, 271 Ewer V. Corbet 328 Ewer V. Jones 134 Ewing V. Burnett 126 Ewing V. Medlock 392 Excelsior Fork Co. v. Lukens.i 411 Exchange Fire Ins. Co. v. Delaware, etc., Co 738 Exchange Bank of St. Louis v. Rice, 103 Ex parte Bradley 475 Ex parte Burr 433, 473 Ex parte Draycott 324 Ex parte Faulkner 431, 433 Ex parte Frost 475 Ex parte Garland 430, 431, 433, 433 434, 473 Ex parte Gibberson 445 Ex parte Gwynne 477 Ex parte Heyf ron 430, 475 Ex parte Hunter 433 Ex parte Kendall 353 Ex parte Law 431, 433 Ex parte Maulsby 471 Ex parte McClelan 456 Ex parte McComb 333 Ex parte Quarrier 433 Ex parte Robbins 450 Ex parte Robinson 475 Ex parte Russell 454 Ex parte Secomb 433 Ex parte Staata 462 Ex parte Smith 474 Ex parte Suelling 432 Ex parte Sutton 336 Ex parte Tenney 433 Ex parte Yale 431 Ex urn V. Brister 334, 366, 388 Ezell V. Franklin 337 Fabens v. Mercantile Bank 516, 517 Fairbanks v. Bloomfield 434, 425 Fairbanks v. Kerr 150 Fai'i-banks v. Stanley 231 Faircliild V. Bentley 308 Fairchild v. Holly 177, 178 PAGE. Fairchild v. Ogdensburgh, etc., R. R., 543 559, 565, 635 Fairgrieves v. Lehigh Co 362 Falconer v. Smith 396 Fales V. Russell 164, 166 Fallev V. Giles 124 Fallich V. Barber 101 Fallon V. Ellison 413 Falls V. Reis 709 Falls Village, etc., Co. v. Tibbetts . . . 709 Falmouth v. Penrose 378 Fancourt v. Thorne 553 Fanning v. Dunham 156 Farmei%' Rank of Amsterdam v. Blair, 95 Farmers' Bank v. Beaston 425 Farmers and Mechanics' Bank of Kent Co. V. Butchers and Drovers' Bank, 507 634 Farmers' Trust, etc., Bank v. Ket- chum 440 Farmers', etc., Bank v. King 504 Farmers and Citizens' Bank v. Payne, 232 398 Farmers' Bank v. Planters' Bank. . . . 504 Farmer v. Rand 630 Farmers' Bank of Virginia v. Reyn- olds 166 Farmers and Mechanics' National Bank, etc., v. Sprauge 129, 229 Farmers' Bank v. Sprigg 440 Farmer v. Stewart 98 Farmers and Mechanics' Bank v. Troy City Bank 237 Farmers' Bank of Bridgport v. Vail, 630 632, 637 Farmers' Loan and Trust Co. v. Wal- worth 333 Faruum v. Bartlett 684 Farnum v. Blackstone Canal Corp. . . 736 Farnam v. Brooks 196 Farnum v. Concord 733 Farnum v. Virgin 574 Farnham v. Camden, etc., R. R. Co.. . 536 Farnham v. Campbell 667 Farnsworth v. Garrard 377 Farnsworth v. Hemmer 247 Farnsworth v. Jackson 359 Farnsworth v. Sweet 366 Farr v. Newman 348 Farrard v. Bouchel 404 Farrand v. Marshall 144 Farrar v. Baber 387 Farrell v. Campbell 257, 359 Farrow v. Barker 431 Farriugton v. Ballard 104 Farrington v. Brown 634 Farrington v. Frankfort Bank. . . 566, 591 611 Farrington v. Meek 374 Farrington v. Park Bank 617 Farrington v. Payne 146 Farver v. State 334 Farwell V. Howard 234 Farwell v. Mather 113 Farwell v. Rockland 381 Fassitt V. Middleton 43ft TABLE OF CASES. Ivii PAaE. Faswell v. Kennett 546 Fatman v. Leet 223, 228 Faulkner v. Brown 281 Faull V. Tinsman 360 Faveue v. Bennett 283, 642 Favor v. Philbrick 404 Faxon v. Baxter 491 Fay V. Cheney 422 Fav V. Richardson 679 Fay V . Richmond 224 Fav V. Oatlev 700 Fay V. Parker 346 Fay's Administrators v. Richards... 112 Fayer weather v. Willet 686 Fear v . Dunlap 596 Fearing v. Irwin 717 Feazle v . Simpson 429 Fechheimer v . Hays 411 Felker v . Emerson 214 Fellows V. Hartford, etc., Steamboat Co 290 Fellows V. Hermans 84 Fellows V. Little 206 Felton V. Dickinson 382, 389, 390 Fenn v . Harrison 222 Fenno v. English 463 Fenner v . Sanborn 21 Fenly v. Stewart 239 Fenton v. Robinson 567 Ferguson v . Carrington 408 Ferguson v . Crawford 457 Ferguson v. Ferguson 202 Ferguson v. Hamilton 222 Ferguson v. Miller 300 Fernou v. Farmer 563 T^'erner v. Williams 626 Ferris v . Bond 545 Ferris v. Ferris 168, 413 Ferris v . Kilmer 256 Ferris v . Paris 345, 253 Ferrier y- Wood 409 Fertig V. Boucher 680 Fero V. Buffalo &State Line R. R. Co., 145 Fetter v . Beale 345 Fetrow v. Merriwether 369 Fidler v. McKinley 728 Field V. Adams 63 Field V . Adreon 420 Field V. Craig 180 Field V. Cutts 584 Field V. Gibbs 448 Field V. Holland 177 Field V. Mayor, etc., of N. Y 856, 370 Field V. Schricher 118 Field V. Schieffelin 328 Field V. Stagg 679 Field V. Van Cott 583 Filer v. Bissel . 705 Filson V . Himes 106 Finch V . Finch 156 Findley v. Findley 121 Fink V. Albany, etc., Railroad Co 344 First National Bank v Bache 517 First National Bank v. Colby 421 First National Bank of Groton v. Crittenden 638 PAlJE: Fire Insurance Co. v. Doll 237 First National Bank v. Haight 515 First National Bank of Cincinnati v . Kelly 276, 527 First National Bank of Whitehall v. Lamb 42 First National Bank of Portland v. Schuyler 593 First Baptist Church v. Utica and Schenectady Railroad Co 145 Fish V. Brown 675 Fish V . Ferris 306 Fish V . Jacobsohn 279 Fish V. Shut 319 Fisher's Appeal 247 Fisher V. Clark 306 Fisher v . Krutz 249 Fisher v . Marvin 570 Fisher v . Smith 717 Fitch V. Casey 385 Fitch V. Redding 506, 510 Fitch V. Sargeant 383 Fitch V. Scott 460 Fitch V. Suedaker 101 Fitch V. Waite 416 Filch V. Woodruff and Beach Iron Works 131 Fitcliburg Bank v. Greenwood 598 Fitts V. Green 679 Fitzgerald v. Cavin 336 Fitzgerald v. Vestal 357 Fitzgibbon v . Kenney 191 Fitzhugh V. Runyon 609 Fitzhugh V . Wilcox 82 Fitzpatrick v. School Commissioners, 233 Fitzsimmons v. Joslin 288 Fitzsimmons v. Southern Express Co. 248 Flack V. Cunningham 701 Flack V. Neill 469 Fladong v. Winter 705 Flagg V . Thurston 707 Flanagan v. Philadelphia 730 Flanders v . Sherman 444 Flanigan v. Crull 488 Flarty v. Odium 361 Fleet V. Halleukemp 137 Fleet V. Hegeman 299 Flemm v. Whitraore 104 Fleming v. McClure 635 Fletcher v. Ashburner 157 Fletcher v. Daingerfield 430, 475 Fletcher v. Grover 185 Fletcher v. Jackson 680 Fletcher v. Peck 141 Fletcher v. Phelps 712 Fletcher v. Piatt 358, 368 Flight v. Cook 656 Flight V. Thomas 293 Flint V. Craig 157 Florence v . Richardson 476 Floyd v. Hamilton 427 Floyd v. Priester 197 Floyd V. State 338 Flynn v. Allen 367 Foard v. Womach 628 Foden v. Sharp 636, 635 lYlll TABLE OF CASES. PAGE. Pogerty v . Jordan 452 Fogg V. Sawyer 573 Fogg V. Virgin 238, 239 Folan V. Folan 490 Foley V . Hill 502 Foley V. Smith 457 Follett V. People 738 Folly V. Vantayl 679 Folsom V. Mussey 355 Foltz V . Peters 276 Fomin v. Oswell 255 Fonda v. Sage 662, 666, 669 Foot V. Dillaye 664 Foot V. Tewksbury 454 Force v. (!raig 675 Force v. Haines 374, 388 Ford V. Caldwell 408 Ford V Garner 363 Ford V. Harrington 453 Ford V. Hurd 412 Ford V. Jefferson 693 Ford V. Jones 345 Forde v. Skinner 333, 335 Ford V. Stuart 363 Ford V. Tvnte 303 Ford V. Williams 239, 265, 449 Fordliam v. Wallis 185 Foreman v. Carter 420 Forney v. Hallaclier 199 Forrestier v. Boardman 223, 233, 241 243, 256 Forster v. Fuller 238 Forsyth v. Beveridge 454 Forsyth v. Day 233, 384 Fortman v. Rottier 429 Fort Plain Bridge Co. v. Smith 730 Forwood V. Dehoney 365 Foshay v. Ferguson 671 Foss V. Robertson 373 Fossler v. Schriber 471 Foster v. Dow 37, 143 Foster v. Essex Bank 499, 501, 515 ffoster V. Jones 413 Foster v. Julien 630 Foster v. Mackinnon 566 Foster v. Rockwell 343 Foster v. Sinkler 191 Poster V. Smith 383 Foster v. Spencer , . 187 Foster v. Stewart 408 Foster v. Sweeney 438 Foster v. Williams .' 706 Foster v. Wiley 435, 448 FoMtenuan v. Parker 115 Fournier v. Cyr 673, 676, 680 Fowler v. Bott 173 Fowler v. Brooks 93 Fowle V. Lawrason 174, 175, 188 Fowler v. Reed 199 Fowler v. Trull 333 Fowler v. Williams 385 ?ox V. Drake 261, 363 Fox V. Dunckle 63 Fox V. McGregor 277 Fox V. Wrigh* 484 Foxcrof t Academy v. Favor 105 PAOB Fragano v. Long 537 Fraley v. Bisphan 403 Frammell v. Little 316 Franceschi v. Marino 705 Franks v. Hamilton 686 Franklin Bank v. Bartlett 678 Franklin Bank v. Byram 509 Franklin v. Ezell 323 Franklin v. Globe Mutual Life Ins. Co 219 Franklin Fire Ins. Co. v. Hamill .... 704 Franklin v. Vanderpool . 510, 638 Franklin Glass Co. v. White 388 Frankenheimer v. Slocum 411 Fray v. Blackburn 147 Frazier v. JErie Bank 385 Frear v. Drinker 447 Frederick v, Brulard 714 Freeland v. Heron 194 Frellson v. Stewart 411 Freeman v. Boston . 100 Freeman v. Curran 636 Freeman v. Fairlie 660, 661 Freeman v. Howe 425 Freeman v. Newton 360, 361 Freeman v. Okey 351 Freeman's Bank v. Perkins 634 Freeman v. Sedf; wick . . 1,53 Freeman v. Tranch 18 Freemantle v. Loudon & North West- ern Railway Co 145 French v. Donaldson 738, 739 French v. Price 218 French v. Turner 594 French v. Vining 304 Frisbie v. Larned 569, 570 Frixione v. Tagliaferro 272 Frost V. Clarkson c95 Frost V. Knight 734 Frost V. Spaulding 715 Frothingham v. Everton 355 Fry V. Derstler 300 Fry V. Slyfield. ., 189 Frye v. Barker 191 Frye v. Calhoun County 459 Fugitt V. Nixon... . . 619 Fulgham v. State 343 Fuller V. Bryan 411, 416 Fuller V. Diiren 406. 408 Fuller V. Colby 343 Fulton Ins. Co' v. Baldwin 739 Fulton V. Hood 703 Fulton Bank v. Phcenix Bank 513 Ful wood V. Graham 713 Funk V. Ely 191 Furman v. Haskin 640 Furman v. Parke 100 Furman v. Walter 411 Gage V. Allison 391 Gage V. Billings 66? Gage V. Gannett 694 Gage V. Jaqueth 52? Gager v. Babcock 45h Gaines v. Allen 246 Gaines t. Brig;ig^ 2(i5 TAB^LE OF CASES. lix PAGE. G^aither v Blowers 847 Gaillard v. Smart 439 Galbraith V. Davis 424 Gale V. Miller 541 Gallagher's Appeal 351 Galla^^her v. Nichols 577 Gallagher v. State 338 Gallagher v. White 583, 584 Gallagher v. Williamson 469 Gallatin v. Bradford 499 Gallery v. Prindle 551, 625 Galloway v. Holmes 408 Galpiu V. Hard 556 Galpiu V. Page 461 Gait V. Cook 325 Gait V. Galloway 290 Gtalt V. Swain 105 Galton V. Haocock 353 Gallup V. Lederer 129 Gallup V. Merrill 271 Galusha v. Hitchcock 238 Gambert v. Hart 445, 459 Gamble v. Grimes 106 Gamble v. Loop 662 Gammaye v. Alexander 399 Gammon v. Schmoll 625 Gam well v. Mosely 563 Gardiner Manuf. Co. v. Heald 880 Gardiner v. Maderia 203 Gardner v. Cole 373 Gardner v. Gardner 328, 330 Gardner v. Heartt 141 Gardner v. Howland. 529 Gardner v. Ogden 21 Gardner v. Smith 361 Gardner v. State 342 Gardner v. Taylor 463 Gardner v. Webber 93 Garfield v. Kirk 451 Garfield v. University of Vermont. . . 491 Garland v. Harrington 358 Garland v. Hicheson 364 Garland v. Tucker 387 Garlington v. Priest 698 Garner v. White 412 Garnett v. Kirkman 98 Garnett v. Macon 329, 330 Garnett v. Roper 687 Gari-and v. Haddan 228, 286 Garrard v. Railroad Co 328 Garrigue v. Loescher 225 Garnsay v. Gardner 363 Gasconade County v. Sanders 702 Gasherrie v. Apple 418 Gaskell v. King 700 Gassett v. Godfrey . . 129 Gaston v. Plum 357 Gates V. Beecher 620 Gates V. Davenport 289 Gates V. Lounsbury 340 Gatli Wright v. Callaway Co 733 Gault V. Humes 162 Gaulden v. Sheeker 574 Gaulden v. State 448 Gaw v. Wolcott 397 Gazzum v. Ohio Ins. Co 887 PAGE, Gear v. Barnum 709 Geary v. Physic 112, 554 Gedge v. Trail 660 Gee V. Gee 183 Geer v. Archer 109 Geer v. Brown 385 Geiger v. BoUes 225 Gelpecke v. Dubuque ... 688 George v. Clagett 281, 283, 284 George v. Harris 1 05 George v. Johnson 197 George v. Surrey 555 Geortner v. Trustees of Canajoharie, 592 Gerber v. Grabel 293, 295 Gerry v. Eppes 381 Getchell v. Clark 454 Gibbs V. Bryant 383 Gibbs V. Frost 678 Gibbs V. Halstead 683 Gibbs V. Linabury 566 Gibbs V. Loomis 455 Gibbs V. Marsh 171 Gibson v. Cooke 356 Gibson v. Dickee 724 Gibson v. Jayne 654, 655 Gibson v. Jeyes 466 Gibson v. Minet 541, 542 Gibson v. Vaughn 713 Gibson v. Winter 282 Giddings v. Coleman 364 Giddings v. Eastman 468 Giddings v. Sears 271 Giffard v. Hart 660 Giffert v. West 367 Gilbank v. Stevenson 446 Gilbert v. Anthony 670, 672 Gilbert v. Danforth 580 Gilbert v. Williams 460 Gilbraith v. Llnenburger 230 Giichrisf v. McGee 718 Giles V. Ackles 97 Giles V. Austin 168 Giles V. Giles 110 Giles V. Mauldin 574 Gilliat V. Gilliat 484, 485 Gillilan v. Myers 548 Gilmore v. Wilbur 378 Gilpins V. Consequa 107 Gill V. Brown 262, 263 Gill V. Hewett 486 Gill V. Middleton 290 Gillett V. Averill 638 Gillett V. Campbell 363 Gillett V. Ellis 184 Gillett V. Fairchild 360 Gillett V. Hill 576 Gillett V. Mason 298, 300 Gillespie v. Hannahan 620 Gillespie v. Wilder 27C Gillaspie v. Kelley 557 Gilson v. Stewart 37!: Girard Bank v. Bank of Penn Town- ship 504, 507 Girard v. Taggart 280, 488 Girardy v. Stone 487 Gist V. Lybrand 630 IX TABLE OF CASES. PAGE. Givan v. Swadley 103 Givens v. Briscoe 442 Given v. Driggs 463, 683, 693 Gladman v. Jotinson 315 Glad well v. Steggall 136 Glasgow V. Copeland 620 Glazier v. Bailey 663, 669 Gleason v. Dodd 444 Gleason v. Peck 493 Glenn v. Cuttle 461 Glentwortli v. Luther 270 Glidewell v. McGaughey 691 Globe Works v. Wright 115, 116 Gloninger v. Hazard 174, 175, 187 Gloucester Bank v. Salem Bank 513 Goble V. Howard 414 Goddard v. Gardner 470 Goddard v. Grand Trunk Railway. . . 365 Goddard v. Merchants' Bank 643 Godin V. Bank of Commonwealth 507, 556 Godfrey v. People 336 Godley v. Hagerty 138 Godsall V. Boldero 143 Godwin v. Francis 89 Goodwin v. Harrison 191 GofF V. Kilts 300, 301 Goldiug V. Merchant 338 Goldsmid v. Hampton 555 Goldsmid v. Lewis County Bank, 591, 613 Goldsmith v. Jones .... 63 Goldsmith v. Picard 439 Goldwiu V. Francis 358 Goltra V. Wolcott 470 Goodall V. Thurman 735 Goodchild v. Terret 349 Goodenough v. Spencer 444, 453 Goodman v. Gay • 314 Goodman v. Symonds 614 Goodman v. Walker 459^ 467 Goodridge v. Dustin i . . . . 730 Goodrich v. Lafflin 383 Goodrich v. Proctor 339 Goodrich v . Reynolds 397 Goodrich v. Willard 491 Goodrun v. Carroll 690 Goosey v. Goosey 121, 133 Goodtitle v. Alker 708 Goodwin v. Blake 674 Goodwin v. Bowden 289 Goodwin v. Gilbert 380 Goodwin v. Holbrook 119, 579, 581 Gordon v. Barkelew , 213 Gordon v. Drury 366 Gordon v. Frazier . 681 Gordon v. Kennedy 394 Gordon v. Phillips 380 Gordon v. Price 568 Gor(! V. Chadwick 34G Gore V. Gibson 671 Gorham v. Gale 231, 441, 443 Gorum v. Carley 381 Goshen Turnpike Co. v. Hurtin, 563, 563 Gosling V. Birnie 533 Goss V. Lester 353, 353 Goss V. Nelson 550 Gould V. Gould 246 PAQ^ Gould V. Rich 333 Gould V. Village of Phoenix 108 Goulding v. Skinner 403 Goulet V. Asseler 31 Gove V. Richardson 719 Gove V. White 709 Gover v. Hall 198 Governor v. Carter 511 Gouvernenr v. Elliot 398 Governor, Guardians, etc., of the poor of Kingston-upou-Hull, V. Petch. . . 87 Governor v. Matlock 696 Governor v. Williams 671 Gowan v. Jackson 634 Gower v. Emery 373, 473 Grace v. Adams 531, 533, 526 Graham v. Bradbury 415 Graham v. Duck wall 283 Graham v. Hackwith 167 Graham v. Henry 358 Graham v. Ledda 533 Graham v. Newman 356 Graham v. O'Fallon 473 Graham v. United States Saving Insti- tution 224, 231 284 Grandin v. Le Roy 613 Granger v. Bassett 180 Granger v. Swart 711 Grant v. Button 377 Grant v. Ellicott 610 Grant v. Hook 328, 331 Grant v. Ludlow 361 Grant v. Quick 163 Grant v. Taylor 501 Grant v Willey 726, 728 Grantham v, Canaan 704 Gratoit v. United States 269 Grattan v. Grattan 205, 208, 209 311 Graves v. American Exchange Bank, 590 643, 643 Graves v. Amoskeag Co 708 Graves v. Friend 569 Graves v. Ticknor 101 Graves v. Tucker 703 Graw V. Hannah 587 Grav V. Barton 701 Gray v. Clark 118, 122, 126 Gray v. Fox 472 Gray v. Garrison 358 Gray v. Griffith 406 Gray v. Gutteridge 481 Gray v. Johnston 148 Gray v. Milner 365 Gray v. Thomas 364 Gray v. Wass 444 Gray v. Wood 556 Grayson v. Wilkinson 459 Greathouse v. Dunlap 683, 701 Great Northern Railway Co. v. Witham 103 Greely v. Bartjett 233 Greenleaf v. McColley 401 Greenleaf v. Moody 333, 243, 256 Greenway, Ex parte 165 Greenwich Bank v. D« Groot 630 Greenwood v. BurnB 284 TABLE OF CASES. 1X1 PAGE. Greenwood v. Colcock 673 Greenwood v. Curtis 396 Greenwood v. Spring 248, 271 Greenfield Bank v. Crafts 233 Greene v. Batemau 405 Green v. Baverstock 483, 484 Green v. Fry 384 Green v. Goings 626, 635 Greene v. Greene 420 Green v. Hankinson 654 Green v. Howell 206 Green v. Kopke 259 Green v. North Buffalo Township, 677, 703 Green V. Sichel 530 Green v . Skeel 259 Green v . Spring 175 Green v. Smith , 685, 703 Greenup v. Stoker 728 Greetham v. Coltoa 330 Greiner v. Prendergast 413 Gregg V . Nilson 424 Gregory v. Bailey 189, 399 Gregory v. Forrester 197 Gregory v. Hill 338, 339 Gregory v. Mack 376 Gregory v. Savage 172 Greville v. AtkiuB 699 Grey v. Grey 205 Grayson v. Theaker 204 Gridley v. Gridley 19 Gridley v. Lord Palmerston 262 Gridley's Heirs v. Phillips 170 Gridley v. Watson 666 Grieff v. Switzer 525 Greirson v. Eyre 187 Griffin v. Bixby 713 Griffin v. Carter 154 Griffin v. Coleman 336 Griffin v. Goff „ , 647 Griffin v. Rice 509, 562 Griffin v. Parsons 334 Griffith V. Burden 688 Griffith V. Follett 737 Griffith V. Inglede w 279 Griffith V. McCullum 61, 62 Griffith V. Reed 545 Griffith V. Willing 173 Griffiths V. Hardenburgh 682, 688 Grigsby v. Chap pell 734 Grinn v. School Directors 680 Grinnell v. Cook 277 Griuell v. Kirtland 709 Griswold v. Barnum 587 Griswold v. Plumb 395 Griswold v. Rutland 491 Griswold v. Sharpe 413 Griswold v. Slocum 596, 597 Groat V. Gile 129 Groce v. Rittenberry 411 Groot V. Story 356, 362 tJrosvenor v. Allen 155 Grosvenor v. Danforth 439 Grosvenor v. New York Central Rail- road Co 287 Grounsell v. Lamb 397 Grove v. Brandenburg 150 PAOB. Groves v. Ruby 358 Grover v. Grover 363 Grover v. Sims 390 Grubles v. Wiley 237 Grumley v. Webb 246, 250 Guengerich v. Smith 346 Guild V. Leonard 380 Guilhon v. Linds 414 Gulick V. Grover 219, 230, 233 Guun v. Harrison 649 Gunnis v. Erhart 477, 488 Gunnison v. Bancroft 117 G iiopy V. Hardin 598 Guordon v. North American Ins. Co. -^58 Guptill V. Damon 115 Gurney v. Behrend 528 Gurney v. Wormersley 367 Gurnsey v . Burns 379 Gusker v. Eddy 574 Guthrie v. Armstrong 218 Guthrie v. Wickliffe 378 Guy V. Butler ... 365 Guy V. Hermance o64, 669 Guy V . McLean . 671 Guyon v. Lewis 404 Gwinnell v. Herbert 599 Gwynn v. Jones 357 Gyre v . Culver 54 Haas v. Damon 178, 353, 354 Haag V . Sparks 151 Habersham v Savannah, etc., Canal Co 738 Hackness v. Farley 450 Hackney v. Jones 232, 563 Hackly v. Swigert 380 Hackettstown Bank v. Mitchell 421 Hadden v. Spader 659 Hagar v. Danforth 340 Hager v, Shindler 473 Haggart v. Morgan 50 Haggerty v. Allaire Works 97 Haggarty v . Pitman 658 Hagerstown Bank v. Adams' Express, 513 Hagerstown Bank v. London, etc.. Society 520 Hagler v . McCombs 206 Hahn v. Doolittle S67 Haigh V. Brooks 375 Haight V. Moore 452, 466 Haiglette v . Leake 418 Hains v. Galbraith 457 Hair v. La Brouse 131 Hakes v. Hotchkiss 97, 131 Halbert v. Deering 358 Hale V. Ard 191 Hale V. Chandler 413 Hale V. Clark 303 Hale V. Hale 180 Hale V . Huntley 425 Hale V. Omaha National Bank 31 Hale V. Rawallie 503 Hale V. Wall 245. 253 Hale V. Webb 181 Haley v. Reid 423 Hall V. Costello 130 Ixii TABLE OF CASES. PAGE. Hall V. Fisher 663, 669 Hall V. Fuller 643 Hall V. Hall 163, 325 Hall V. Harper 234 Hall V. Jackson 275 Hall V. Lauderdale.. . . Ill, 261, 263, 263 Hall V. Lund 294 Hall V. Newcomb 596 Hall V. Peck 253 Hall V. Renfro 447 Hall V. Samnson 424 Hall V. Smith 394 Hall V. Stevenson 181 Hall V. StOrrs 242 Hall V. Wilson 556, 567, 613 Hall V. Wright 726 Halleck v. Mixer 407 Hallett V. Bousefield 1»4 Hallett V. Wylie 172 Hallenbeck v. Rowley . 710 Hallidav v. McDougall 560 Halloback v. Van Buskirk. . 379 Holloran v. Wbitcomb 369 HallowelFs Case 431 Halsey v. McCormick 716 Halsey v. Whitney 423 Hambley v. Trott 405, 408 Hamill v. Gillespie 424 Hamilton v. Brown 370 Hamilton V. Cook County 273 Hamilton v. Cummings 663, 669 Hamilton v. Fon Du Lac 665 Hamilton v. Lomax 102 Harnilton v. Lycoming Ins. Co 86 Hamilton v. Marks '. 370 Hamilton v. Moore 401 Hamilton v. Russell 372 Hamilton v. Spottiswoode 550 Hamilton College v. Stewart 105 Hamilton v. Vought 279 Hamilton v. Wright 456 Hamlin V. Hamlin... 167 Hammarskold v. Bull 263 Hammock v. White 161 Hammon v. Cottle 241 Hammon v. Shepard 71 Hammond v. Cottle 245 Hammond v. McLaughlin 716 Hammond v. Ridgley .... 714 Hanauer v. Gray 106 Hancock v. Gomez 253 Handely v. Statelor 458 Handy v. Dobbin 423 Hankins v. Lawrence 737 Hanly v. Campbell 683 Hansard v. Robinson 164, 165, 605 Hanson v. Hoitt 440 Hanson v. Millett 301 Harbeck V. Craft 612 Harbridge v. Warwick 293 Hardeman v. Burge 95 Hardeman v. Ford 2.?3 Harden v. Webster 675 Hardy v. Keeler 448 Hardy v. Morton 542 Hare v. Van Deuseu 41 PAOE- Hargrave v. Conrov 176, 179 Hargroves v. Cook 177, 670, 682 Harker v. Anderson 505, 506 Harlan v. Harlan 92 Harland v. Lilienthal 451, 458 Harley v. Thornton 573 Harman v. Harman 670 Harman v. Reeve 301 Harmon v. Moore 425 Harmon v. Watson 438 Harmony v. Bingham 107 Harnor v. Graves 131 Harper v. Albany Mutual Ins Co 127 Harper v. Calhoun ■ 500 Harper v. Harvey 435 Harper v. Keys 427 Harper v. Montgomery 394 Harper v. Perry 467 Harper v. Tahomden 446 Har pending v. Shoemaker 406 Harrell v. Els worth 730 Harrell v. Watson 673 Harrington v. Bigelow 154 Harrington v. Gannon 325 Harrington v. Miles 299 Harrington v. Snyder 306 Harris v. Allen 212 Harris's Appeal 205, 206 Harris v. Christian 378 Harris v. Clark 506, 619 Harris v. Dennie 425 Harris v. Harris 403, 673, 701 Harris v. Heard 527 Harris v. Ferguson 184 Harris v. Ligget 389 Harris v. Story 74 Harris v. Thompson 737 Harrison v. Brock 400 Harrison v. Cage 72<7 Harrison v. Harrison 338 Harrison v. Lockart 684 Harrison v. Luke 385 Harrison v. Parker 708 Harrison v. Price 204 Harrison v. Ruscoe 647 Harrison v. Turbeville 706 Harrison v. Vought 615 Harrisburg Bank v. Tyler 519 Harrop v. Fisher 586 Harrop v. Hirst 40 Harrow v. Farrow 442 Harrower v. Ritson 62 Hart V. Benton 357 Hart V. Bull 694 Hart V. Farmers and Mechanics' Bank, 232 Hart V. Hill 711 Hart V. Lauman 50 Hart V. Spaulding 440 Hart V. Tyler 403 Hart V. Woods 486 Harter v. Morris 445, 459 Hartford v. Chipmau 662, 666, 668 Hartford Bridge Co. v. East Hartford, 781 Hartford v. .JackHon 424 Hartford and New Haven R. R. Co. v. Jackson 88 TABLE OF CASES. Ixiii Hartford Bank v. Stedman 499 Hartford Ins. Co. v. Wilcox .... 229, 291 Hartley v. Rice 72-1 Hartuess v. Thompson 158 Hartshorn v. Day 702 Harvey v. Brydges 60 Harvey v. Dunlop 38, 337 Harvey v. Gibbous 100 Harvey v. Johnston 723, 724 Harvey v. Mitchell 123, 715 Harvey v. Richards 130 Harvey v. Steptoe 351 Harvey v. Stevens 486 Harvey v. Towers 611 Harwood v. Tompkins 295 Hasbrook v. Paddock 15G Haskell v. Allen ... 720 Haskell v. Hilton 856 Haskell V. Mitchell 586 Haskins v. Burr 179 Haskins v. Edwards 238 Haskins v. Lombard 677 Haskins v. Wright 389 Hastings v. Dollarhide 214 Hastings v. Johnson 512 Hastings v. Palmer 659 Hastings v. Pepper 525 Hatch V. D wight 711 Hatch V. Fogarty 445, 467 Hatch V. Manu 100 Hatch V. Straight 207, 210 Hatch V. Taylor 227, 286 Hatch V Trayes 563 Hatfield v. Reynolds 283 Hathaway v. Evans 718 Hathaway v. Rice 338 Hathorn v. Stinson 712 Hauck V. Huud 648 Haughton v. Merony 698 Hauser v. Shore 330 Haussoullier v. Uartsink 553 Haven v. Foster 85 Havens v. Huntington 597, 642 Havens v. Klein 297 Havens v. Thompson 207 Haverin v. Donuell 625, 626 Haverstick v. Sipe 295, 296 Hawes v. Smith 121 Hawesville v. Lander 709 Hawley v. Cramer 467 Hawley v. Keeler 218, 233 Hawley v. Mancius 352 Hawley v. Morton 695 Hawk V. Thorn 360 Hawkes v. Phillips 596 Hawkes v. Young 388 Hawkins v. Baker 234 Hawkins v. Cardy 598 Hawkins v. Walker 254 Hawkins v. Watkins 546 Hawtavne v. Bourne 231 Haxtuii v. Bishop 559, 626, 635, 640 Hay V. Marshall 176 Hay V. Morris 470 Haydeu v. Brooklyn Savings Bank. . 509 510 PAGK. Hayden v. Middlesex Turnp. Corp. . . 392 Hayden v. Sample 427 Haydook v. Lynch 552 Haynes v, Waite 177 Haynes v. Crutchfield 483 Haynes v. Nice '. 177 Haynes v. Woods 386 Haynes v. Young 714 Hays V. Gwin 548 Hays V. Jackson 351 Hays V. Lynn 224, 284 Hays V. Phelps 601, 647 Hays V. Stone 568 Hayes v. Symonds 262 Hays V. The People 332, 333 Hayes v. Ward 657 Hayes v. Willis 358, 362 Hayselden v. Staflf 397 Hay ter v. Moat 394 Haythorn v. Margerem 666 Haywood v. Hutchina 176, 187 Havv.'ood v. Leonard 404 Hazard v. Day 89 Hazard v. Irwin 702 Hazel V. Clarke 338, 342 Hazelhurst v. Mayor, etc., Baltimore, 152 Hazeltou v. Batchelder 234 Hazelrigg v. Brenton 449 Hazul V. Dunham 484 Heacock v. Sherman 731, 732 Head v. Gervais 439 Head v. James 666 Headley v. Good ... 443 Healy v. Gilman 401, 510 Heard v . Brewer 527 Heard v. Drake 169 Heard v. March 218 Heartt v. Corning 188 Heath v. Savings Bank 510 Heathman v. Hall 104 Heaton v. Findlay 473 Heck V. Shener 377, 396 Hedges v. Sealy 586 Hefferman v. Burt 438 Heidenheimer v. W^ilson 587 Heiueman v. Heard 250 Heister v. Davis 472 Helper v. Alden 543 Hellings v. Hamilton 513 Hellman v. McWhennie 457 Helm V.Wilson 395 He'nenway v. Hemenway 25S Hf'mmenway v. Hickes 393 Hemenway v. Smith 470 Henning V. Van Hook 377 Henderlite v. Thurman 705 Henderson v. Barnwall 236 Henderson v. Burton 350 Henderson v. Cumminga 233 Henderson v. Howard ... 395 Henderson v. Marvin 584 Henderson v. McDuffee 186 Henderson v. Pope 506 Henderson v. Railroad Co 143 Henderson v. Thornton 413 Henderson v. Vaulx 661 Ixiv TABLE OF CASES. PAGE. Hendrickson v. Hutchinson 400 Heukel v. Pape 88, 89 "Henkin v. Giierss 141 Hennen v. Hennen 419 Henry v. Fowler 454 Henry v. Hughes 362 Henry v. Raman 468 Heralson v. Mason 697 Herndon v. Forney 427 Herndou v. Taylor 279 Herrick v. Ames 198 Herrick v. Bennett 558, 640 Herrick v Catley 247, 448 Herrick v. Orange County Bank .... 492 Herrick v. Whitney 600 Herrick v. Woolverton 559, 640 Herring v. Hoppock 287 Herring v. Sawyer 571 Herring v. Wilmington & Raleigh R. R 145 Herring v. Woodliull 594 Herrington v. Williams 666 Herriter v. Porter 146 Herrou v. Bullitt 464 Hertell v. Van Buren 188 Hess V. Cole; 458 Hess V. Joseph 462 Hester v. Keith 684 Heston v. Williamson 586 Hewett V. Brouson 390 Hewett V. Painter 116 Hewett V. Swift 287 Hey wood v. Perrin 123 Haywood v. Wright 540 Hibblewhite v. McMorine 218 Hickling v. Hardey 572 Hickman v. McCurdy 182 Hickman v. Stout 176 Hicks V. Bradner 202 Hicks V. Coleman 712 Hicks V. Hinde 589, 598 Hicks V. Minturn 480 Hicks V. Murphy 493 Hicks V. Whitmore . . 281 Hicks V. Williams 736 Higgs V. Smith 702 Higgins V. Moore 129 Higgins V. Senior 239 Higgins V. Wasgatt 119 Higgins V. Watson 165 Higginbothara v. State 332 Hight's Appeal 205 Hilborn v. Alford 555 Hillsborougli v. Londonderry 377 Hildebrand v. Crawford 287 Hillary v. Waller 704 Killer v. Ivy 435 Hillman V. Wilcox 378 Hill V. Beebe 568 Hill V. Buckminster 96 Hill V. Davis 406 Hill V. Lackey 164 Hill V. Lewis 599 Hill V. Lord 711 Hill V. M. & S. Water- works Co 699 Hill V. Norris 628 Hill V. Pine River Bank 380 Hills V. Place 559 Hill V. Robbins 178 Hill V. Rogers y39 Hill V. Scales 677 Hill V. South Staffordshire Railway Co 179 Hill V. Supervisors of Livingston. ... 731 Hill V. Wallace 378 Hill V. Williams 269 Hilt V. Campbell 395 Hilton V. Burley ... 400 Hilton V. Eckersley 699 Hilton V. South wick lOa Hinckley v. Emerson 331 Hinckley v. N. Y. C. & H. R. R. R. Co. 533 Hinkley v. Fowler 387 Hinkley v. St. Anthony Falls, etc., Co 444 Hinds V. Barton 161 Hinds V. Bazealle 130 Hinde v. Whitehouse 485 Hinman v. Moulton 93 Hinneman v. Rosenback 548 Hinsaman v. Hinsaman 677 Hinsdale v. Bank of Orange, 398, 512, 607 Hiushaw v. Button 565 Hinton v. Whitehurst 705 Hirshtield v. Landman 221 Hirst V. Brooks ... 559 Hirst V. Tolson 181 Hitchcock V. Lukens ... 390 Hitchcock V. McGehee 463 Hitchen v. Birks 660 Hite V. Blandford 307 Hoadley v. Watson 346 Hoagland v. Moore 383 Hoare v. Graham 609 Hobokeu Land Co. v. Kerrigan. . 709, 717 Hockenbury v. Carlisle 468 Hoddy V. Hoard 164 Hodge V. Boothby 710 Hodge V. National Bank 519 Hodges V. Griggs 663 Hodges V. Harris 365 Hodges V. Pingree 186 Hodges V. Runyan 263 Hodges V. Shuler 544, 644 Hodges V. Windham 200 Hodnett v. Smith 113 Hodgson V. Dexter 262 Hodgson V. ]Macy 210 Hoffman v. .35tna Insurance Co 124 Hoffman v. Armstrong , 713 Hoffman v. Carow 375, 480 Hoffman v. Smith 470 Hoffmam v. Treadwell 240 Hoffman v. Vallejo ... 453 Hoffman V. Van Nostrand 463 Hogan V. McMurtrv 711 Hogan v.Shorb...' 281 Hogg v. Martin 459 Hogg V. Snaith , 230 Hoggett V. Emerson ... 417 Hoggins V. Plympton 110 Hoitt V, Holcomb , ... 700 TABLE OF CASES. lx> PAGE. Hoke V. Hoke 680 Holbert v. Montgomery 441 Holbrook v. Wight 275, 276 Holbrook v. Vose 522, 527, 528 Holcroft V. Dickinson 723 Holcomb V. Foxworth 427 Holdridge v. Allin 673 Holdsworth v. Hunter 560 Holker v. Parker 436 Holland v. Mayor, etc., of Baltimore, 665 Hollenbeck v. Fleming 113 Hollev V. Borland 399 Holly" V. Huggeford 277, 424 Holliday v. Atkinson 563, 608 Hollis V. Pond 675 Hollister v. Attmore 209 Holloway v. Chiles 421 Holloway v. Griffith 724 Holman v. Kimball 470 Holmes v. Bellingham 709 Holmes v. Boughton 85 Holmes v. D'Camp 193, 195, 570 Holmes v. Hall 124 Holmes v. Mather 38, 161, 309 Hoi mes V. Morse 195 Holmes v. Smith 387 Holmes v. Taber 180 Holmes v. Weed 110 Holmes v. West 558 Holt V. Ward 727 Holtsinger v. National Corn Exchange Bank V. 226 Holtz V. Boppe 620 Holtz V. Schmidt 71 Homan v. Earle 732, 723 Homburger v. Homburger 202 Home Insurance Co. v. Green 645 Homestead Co. v. Valley R. R 387 Honeyman v. Campbell 722, 723 Honeyman v. Marryatt 83 Honsee v. Hammond 40 Hood V. Hallenbeck 589 Hood V. Miller 512 Hook V. Hook 206, 208 Hooker v. Eagle Bank 364, 368 Hooper v. Rathbone 525 Hoopes V. Burnett 466 Hoover v. Hoover 327 Hope V. Coleman 326 Hopkins v. Adams 166 Hopkins v. Deaves 697 Hopkins v. Hayward 490 Hopkins v. Meliafiy 258 Hopkins v. Mollineux 214 Hopkins v. Lo, 331 Howell V. Jackson 343 Howland v. Lownds ..... 101 I Howland v. Taylor 454 Hoxie V. Weston 698 I Hoy V. Smith 357 Hoyt V. Byrnes . 513 Hoyt V. Seeley 506 Hovt V. Wilkinson 193 1 Hixbbard V. Blow 401 I XVI TABLE OF CASES PAGE. Hubbard v. Chenango Bank 514 Hubbard v. Coblidge 94 Hubbard v. Elmer 240 Hubbard v. Martin 85 Hubbard v. Matthews 215, 601 Hubbard v. Mosely 548 Hubbard v. Town 294, 296 Hubble V. Fogartie 563 Hutbell V. Coudrey 387 Hubbell V. Lord 626 Hubbell V. Medbury 180 Hubbell V. Sibley 9 Huchesou v. Ross 412 Hudson V. Granger 281 Hudson V. Hudson 212 Hudson V. Roberts 313 Hudson V. Williams 702 Hudspeth v. Thomaston 164 Huff V. Hatch 241 Hughes' Appeal 212 Hughes V. nrooks 428, 429 Hughes V. Hampton 190 Hughes V. Kelly 424 Hughes V. Mulvey 431 Hughes V. Providence, etc., R.R., 709, 717 Hughes V. Sanders. 681 Hughes V. Wheeler 563, 568, 570 Hug-uenin v. Basely 660 Hull V. County of Marshall 261 Hulse V. Hulse 375 Hulse V. Young 479, 488 Humble v. Hunter 281 Humphrey v. Browning 454 Humphrey v. Cumming 456 Humphrey v. Douglass 322 Humphreys v. Havens 233 Humiston v. Ballard 45 Humiston v. Smith 407 Hunley V. Lang 398 Hunnewell v . Charlestown 665 Hunsager v. Sturgis 249 Hunt v. Amidon 110 Hunt V . Brennan 439 Hunt V . Chapin 227 Hunt V . Ellison 153 Hunt V. Fish 631 Hunt V. Francis 709 Hunt V. Frost 484 Hunt V . Norris 413 Hunt V. Peake 102, 727 Hunt V. Philadelphia 476 Hunt V. Printup 449 Hunt V. Rousmanier's Administra- tors 239, 289, 290 Hunt V. Standart 130 Hunt \ . Stevens 425 Hunt % , Thompson 378 Hunt V. Turner 154 Hunt V. Wadleigh 635 Hunter v. Anthony 121 Hunter v. Hook 635 Hunter v. Hudson River Iron and Machine Co 287 Hunter v. Jameson ... 227 Hunter v. Miller 118, 237 Hanter v . Watson 470 PAGB Huntington v. Allen :62, 666, 668 Huntington v. Dinsmore Ii8, 532 Huntington v. Knox 281 i 284 Hurd v. Miller .' 21 Hurd V. Peudrigh 94 Hurdy v. Waters 214 Hurley v. Brown 118 Hurt V. Wilson 365 Husbands v. Vincent 696 Huston V . Ditto 493 Huston V. Mitchell 436 Huston V. Willams 702 Hutchins v. Brackett 267 Hutchins v. Hope 197 Hutchinson v. Market Bank of Troy, 193 195 Hutchinson v. Massareene 659 Hutchinson v. Olcutt 276 Hutcheson v. Blakeman 83, 86 Hutchings v . Munger 224 Hutton V. Mansell 722 Hutton V. Robinson 470 Hutton V . Warren 128 Hugett V. Philadelphia and Reading Railroad Co 145 Hyams v . Michel 441 Hyde v. Goodnow 567 Hvde V . Tracy 183 Hynds v. Hays 106, 107 Hynes v. Jurgren . . 243, 287 Idol V. Jones 300 Illinois Central R. R. Co. v. Allen, 36 146 Illinois, etc., v. Cassell 115 Illinois, etc., R. R. Co. v. Sutton 344 Illidge V. Goodwin 309 lllsley V. Jewett 185 Ilsley V. Merriam 282 Incledon v. Northcote 353 India Rubber Co. v. Hoit 387 Indiana, etc.. Bank v. Colgate.. 527, 529 Indianapolis, etc., R. R. Co. v. Truitt, 304 Ingalls V. Morgan 231 Ingham v. Primrose 614 Ingram v. Richardson 430 Ingraham v. Disborough 366 Ingraham v. Edwards 676 Ingraham v. Leland 447 Ingraham v. Gilbert 108, 387 IngersoU v. Howard 431, 432 IngersoU v. Sergeant 181 Inhabitants of Deerfield v. Arms. , . . 713 Inkster v. First National Bank 545 In Matter of Brown 506 Innes v. Dunlop 368 Innes v. Wylie 334 In re Brown 507 In re General Estates Co., etc 688 In re Imperial Land Co., of Marseil- les, etc 688 In re Johnson 658, 660 In re Paschal 451, 463 Insane Hospital v. Higgins 387 International Bank V. Monteath. .. 407 Irving V. Greenwood 728 TABLE OF CASES. Ixvii PAGE. [rving Bank v. Wetherald 509 Irvine v. Spring 4G5 Irwin V. Planters' Bank 163, 512 Isaacs V. Hermann 405 Isaacs V. Third Avenue R. R. Co., 264, 266 Isliam V. Downer 422 Ison V. Ison 207 Ives V. Curtis 416 Ives V. Hulet 263 Ivory V. State Bank of Missouri 506 Ivy V. Barnhartt 428 Jacks V. Darriu 507, 604 Jack V. Davis 864 Jackson v. Bartlett 444 Jackson v. Blodgett 124 Jackson v. Burke 178, 417 Jackson v. Clark 128 Jackson v. Defendorf , 703 Jackson d Stansbury v. Farmer .... 60 Jackson v. Frost 714 Jackson v. Hathaway 708, 709 •Jackson v. Heath 279 Jackson v. Hotchkiss 704 Jackson v. Jackson 208, 211 Jackson v. Louw 716 Jackson v. Mutsdorf 308, 209 Jackson v. Moore 208 Jackson v. Perry 419 Jackson v. Richards 646 Jackson v. Second Avenue R. R. Co., 287 344 Jackson v. Smithson 815 Jackson v. State 474 Jackson v. Waldron 18 Jackson v. Walsworth 421 Jacob's Case 481 Jacobs V. Morange 85 Jacobs V. Warfield 289 James v. Campell 333, 335 James v. Chalmers 567, 568, 593. 598 637, 642 James v. Fulcrod 102 James v. Hager 548 James v. Scott 655 Jamison v. Petit 721 Janes v. Buzzard 378 Janes v. Jenkins 296 Janvrin v. Exeter 100 Jarratt v. Martin 700 Jarvis v. Rogers 274 Jarvis v. Sutton 96 Jeanes v. Fridenberg 471 Jeffries v. Hager 575 Jeffrey v. Bigelow 287, 318 Jeffrey v. Walton 554 Jeffers v. Johnson 691 Jefferson v. .Adams 346 Jefferson County v. Swain 419 Jefts V. York . .' 258 Jencks v. Coleman 344 Jenks V. Morgan 707 Jenkins v. Gillespie 437 Jenkins v. Hogg 483, 486 Jenkins v. Stetson 682, 686 Jenkins v. Thompson 384 PAGE. Jenkins v. Van Schaack 326 Jenkins v. Waldron 148 Jenkinson v. State 469 Jenkyns v. Usborne 524, 527 Jenners v. Howard 702 Jenness v. Mount Hope Iron Co 83 Jennings v. iVIcConnell 466 Jennings v. Roberts 647 Jennings v. Whittemore 1.53 Jennison v. Stafford 90, 97 Jervis v. Hoyt 234, 242 Jerome v. Whitney . . . 540, 546, 563, 574 Jessel V. Williamsburgh Ins. Co. . 98, 368 371 Jeter v. Haviland 485 Jett v. Hempstead 254 Jewitt v. Somersett 386 Jilson V. Gilbert 269 Joest V. Williams 673 Johnson v. Anderson 709 Johnson v. Appleby 83 Johnson v. Belden 205, 207, 210 Johnson v. Boone 178 Johnson v. Buck 486, 487, 488 Johnson v. Catlin 279 Johnson v. Chambers 120 Johnson v. Clark 389, 393, 623 Johnson v. County 688 Johnson v. Cunningham 216, 463 Johnson v. Daverne 472 Johnson v. Farmers' Bank. . 254, 427, 504 Johnson v. First Nat. Bank 603 Johnson v. Gibson 108 Johnson v. Gilbert 569, 599 Johnson v. Harvey 490 Johnson v. Hoyle 209 Johnson v. Hubbell 1,55 Johnson v. .Jenkins 727 Johnson v. Johnson 168, 665 Jolinson V. Jones 227 Johnson v. Lansley 255 Johnson v. Laughlin 418 Johnson v. Lowry 420 Johnson v. McGruder 223 Johnson v. Oppenheim , 295 Johnson v. Patterson 304 Johnson v. Plimpton 489, 493 Johnson v. Reed 378 Johnson v. Sellers 134 Johnson v. Shields 357 Johnson v. Smith 726 .Johnson v. Stark 398 Johnson v. State 335 Johnson v. Sullivan 468 Johnson v. Titus 94, 616 Johnson v. Tompkins 333 Johnson v. Weatherwax 677 Johnson v. Weed 569 Johnson v.Wingate 234 Johnston v. Usborne 480 Johnston v. Wabash College 105 Jones V. Adler 270 Jones V. Alley 358 Jones V. Baird 408 Jones V. Blanton 186 Jones V. Booth 219 Ixviii TABLE OF CASES. PAGE. Jones V. Bradner 424 Joues V. Butler 158 Jones V. Childs 693, 696 Jones V. Cooke 399 Jones T. Cooper 693 Jones V. Drake 364 Jones V. Dunn 195 Jones V. Farley 284 Jones V Fort 637 Jones V. Gregg 406 Joiujs V. Harraden 379 Jones V. Hoar 406 Joues V. Hodgskins 290 Jones V. Holland 413 Jones V. Hoyt 271 Jones V. Jones 386, 528 Jones V. Keith 730, 734 Jones V. Longwood 675 Jones V. Nanney 397, 479, 485 Jones V. Pettibone 716 Jones V. Phoenix Bank 100 Jones V. Pryor 400 Jones V. Ryde 572 Jones V. Savage 671, 635, 637 Jones V, Smith 720 Jones V. Thompson 204 Jones V. Underwood 113 Joues V. Watkins 85 Jones V. Whitter 363, 370 Joues V. Williams 61 Jones V. Woodhull 162 Jordon v. Black 366 Jordon v. Cooper 403 Jordan v. Deaton 718 Jordon r. Faircloth 152 Jordon v. Gillen 360, 452 Jordon v. James 528 Jordon v. Meredith 129 Jose V. Baker 568 Joslin V. Cowee 247, 448 Josselyn v. McAllister 265 Judah V. Harris 546 Judah V. Trustees 452 Judge V. Wilkins 95 Judd V. Downing 490 Judd V. Smith 506 Judson V. Gray 450 Judson V. Love 444 Judson V. Sturges 232 Julian V. Shobroke 576, 625 Jury V. Barker 553 Justh V. Nat. Bank of Common- wealth 510 Kain v. Old 131 Kane v. Bloodgood 153 Kane v. Haywood 474 Kane v. Hood 116 Kane v. Van Vranken 450 Kanaga v. Taylor 130 Karr v. Porter 81 Karmuller v. Krotz 118 Kase v. John 376 Kasson v. Smith 611 Kavanagh v. Saunders 683 Kay V. iScates 668 PAGB Kean v. Davis 239 Keane v. Branden 195 Keane v. Roberts 328 Kearney v. Vaughan 170 Keats V. Hugo 295, 297 Keefe v. Vogel 96 Keenan v. Cavanaugh 714 Keen v. Jordon 162 Keene v. Collier ."iOl, 509 Keeney v. ChilAs 689 Kenuey v. Grarid Trunk Railway Co., 264 Keightlinger v. X^su '. 309, 312 Keif V. Ambros?: /, 324 Kellogg V. Gilbeji 442 Kellogg V. Griswold! 409 Kellogg V. Kellogg 471 Kellogg V. Krauser . 370 Kellogg V. Miller 412 Kellogg V. Norris 404 Kellev V. Mayor, etc., ox R-coMyn. . . 554 564, 565 Kelly V. Emigrant, etc., SavJBg-v Sank, 510 Kelly V. Foster * 389 Kelly V. Mills 122 Kelly V. Partington . . . 149 Kelly V. Riley ?g5, 728 Kelly V. Second Nat. Bank 624 Kelly V. Tilton 80^. 312 Keilum v. Smith 718 Keliher v. Conn. River R. R '^Q^ Kelner v Baxter '>.e'' Kelsey v. Deyo 37* Kelsey v. Glover 73'. Kelsey v. Hobby 191 Kelsey v. National Bank of Crawford, 23^ Kelsey v. Rosborough 568 Kelty v. Owens 887 Kemp v. Burt 459 Kemp V. McPher.son 371 Kemp V. Pryor 706 Kempker v. Roblyer 240, 251 Kendall v. Galvin 563 Kendall v. Hodgins 493 Kendall v. New Eng. Co 352 Kender v. Joues 651 Kennebec Purchase v. Tiffany 708 Kennedy v. Brown 196 Kennedy v. Kennedy 651 Kennon v. McRea 635 Kenny v. First Nat. Bank of Albany, 573 Kent V. Bornstein 280 Kephart v. Butcher 569 Kerby v. Jacobs 153 Kerfoot v. Hyman 246 Kerm v. Pii)er 231 Kerucy v. Kerney 706 Kerr v. Cotton 245 Kerr v. Hotfman 414 Kerr v. Seaver 320 Kerslake v. Schoonmaker 22H Keshan v. Gates 308 Kesler v. Zimmerchitte 1 54 Ketchell V. Burns 58-'; Ketchum v. Verdell 219, 234 Key, etc., v. Munsell 666 Key V. Parnham 28ij TABLE OF CASES. Ixix PAGE. Keys V. Johnson 270 Keyes v. Devlin 'S'S'd Kevser v. Harbeck 523, 528 Kibby v. Rucker 199 Kidder v. Flagg 399 Kidney v. Coussmaker 351 Kilgore v. Bulkley 511 Kilheffer v. Herr 400 Kimball v. Brawner 118 Kimball v. Browner 128 Kimball v. Cunningham 378, 384 Kimball v. Huntington 364, 543 Kimball v. Sumner 381 Kimberly v. Fox 669 Kincaid v. Dormey 718 Kinder v. Gilleapie 303 King V. Accumulative Assurance Co., 41 King V. Andrews 177 King V. Baldwin 163, 057 King V. Barrett 471 King V. Butler 263, 263 King V. Fowler 371 King V. Gillett 726 King V. Inhabitant?! of Backs 729 King V. Kerrison 738 King V. Kersey 725 King V. Kline 321 King V. McDaniel 378 King V. Paddock 377 King V. Poole 45 King V. Pope 463 King V. Ruckman 113 i King V. Sears 375 King V. SheriflF of Surrey 446 King V. Shore 448 King V. Thorn 588 King V. Upton 97 Kiugsland v. Braisted 19 Kingrsland V. Chittenden... 707, 711, 717 Kingriland v. Worsham 416 Kinnard v. Kinnard 661 Kinsman v. Birdsall 563 Kinsey v. Wallace 93 Kip V. Brigham 698 Kip V. Monroe Ill Kircudbright v. Kircudbright 211 Kirchner v. Venus 273 Kirby v. Sisson 166, 602, 639 Kirby v. State 202 Kirk v. Hartman 268 Kirk V. Morrow 154 Kirkham v. Coe 428 Kirkpatrick v. McCullough 546 Kirkpatrick v. Stainer 259 Kirkpatrick v. Turnbull 193 Kirkman v. Vaulier 176 Kirkse V v. Jones 428 Kirland v. State 333, 335, 336 Kirton v. Wood 193 Kisliiif; V. Shaw 466 Kittrtdge v. Elliott 312, 314 Kitchen v. Place 557 Kitchen v. Tyson 191 Klein v. Thompson 345 Kline v. Central, etc., R. R. Co 344 Klingman v. Holmes 346 PAGfc ! Klockenbaum v. Pierson 634 Knapp v. Meigs 413 Knapp V. Smith 214, 215 Knight V. Abert 305. 317 Knight V. Bradswell 696 Knight V. Cooley 87 Knight V. Odell 447 Knight V. Plimouth 245 Knight V. Plymouth 659 Knights V. Quarles 408 Kinsley v. Shenberger 682 Knott V. Veuable , 619 Knour v. Wagoner 322 Knowles v. Inches 650 Knowles v. Michel 193 Knowlton v. Inhabitants, etc 222 Knowlton v. Plantation 457 Knowlton v. Smith 719 Knowlton v. Supervisors, etc 669 Knox V. Martin 398 Knox V. The Ninetta 523 Kock V. Bonitz.. 192, 193, 195, 196, 197 Kollock V. Jackson 275, 276 Koney v. Ward 312, 313 Konitsky v. Mayor 109 Kortwright v. Buffalo Commercial Bank 379 Kottwitz V. Alexander 106 Kountz V. Price 219 Kramer v. Sanford 627 Krause v. Dorrance 461 Krebs v. Krebs 212 Kreheler v. Thaule 463 Krevet v. Meyer 60 Kridner v. Western College 233 Kronenberger v. Binz 196, 198 Krutz V. Fisher 246 Kyle V. Green 627 Lacy V. Holbrook 546 Lacam v. Mertius 352 Ladue v. Branch 303 Lady Cox's Case 674 La Farge v. Rickert 119, 581 Lafayette Insurance C'O. v. French. . . 421 Laflerty v. Rutherford 358 Lafever v. Bellmyer 174, 175, 187 Laing v. Barclay 564 Lake Bigler Road Co. v. Bedford. . . . 666 Lake v. Reed 615 Lake v. Virgina, etc., R. R. Co. . 729, 734 L' Amoreux v. Gould 71, 93, 103 Lamorieux v. Hewit 583 Lamb v. Camden and.Amboy R. R. Co. 533 Lamb v. Klaus 128 Lamb v. Ricketts 716 Lamb v. Stone 141 Lambert v. Sanford 439 Lambkin v. Nance 387, 409 Lampman v. Milks 294. 296 Lancaster Canal Co. v. Parnaby 738 Lancaster National Bank v. Taylor. . 599 Lancaster Bank v. Woodward. . 507, 509 Lanchester v. Frewer 374 Lander v. Castro 258 Lander v. Seaver 343. Ixx TABLE OF CASES. PAGE. Liandis v. Urie 387 Landon v. Piatt • 17'^ Landrum v. Trowbridge 620 Landsberger v. Gorbam 468 Lane v. Cotton 2G7 Lane v. Hill 193 Lane v. Kasey 6S4 Lane v. Marsball 423 Lane v. Salter 42, 43 Lanfrancbie v. MacKepzie 292 Lang V . Fiske 370 Lang V . Waters 215 Lang V. Wbidden 671 Langdon v. Castleton 444 Langdon y. Bowen 177 Langdon v. Roane 194 Langley v. Berry 364 Langridge v. Levy 137, 138 Langston v. S. C. R. R. Co 688, 696 Lannan v . Smitb 622 Lanning v. Carpenter 84 Landsden v. McCartby 356, 362 Lansing v. Gaine 556 Lansing v. McKiUup 464 Lansing v. Stone 161 Laplaine v. Madison 669 Larmon v. Jordon ... 87, 103, 665 Latliam v. Morrow 483 Latbrop V. Knapp 105 Latbrop v. Morris 611, 612 Latimore v. Simmons 727 La Trobe v. Hay ward 196 Laugblin v. Marsball 511 Laurens v. Lucas 328 Laussatt v. Lippincott, 216, 223, 244, 273 Lave rone V. Mangianti 308, 312, 315 Laverty v. Moore 719 Law V . Cross 224, 234 Law V. Hempstead 123 Law V. niinois, etc.^ Rftilroad Co 344 Law V. Smitb 207 Laws V. Rand 506 Lawlor v. Keaquick 232 Lawrence v. Beaubien 85 Lawrence v. Cooke 723, 735, 728 Lawrence v. Dobyns 626 Lawrence v. Fox 91, 92 Lawrence v. Lawrence 164 Lawrence v. McArter 214 Lawrence v. McCalmont 120 Lawrence v. McGregor 129 Lawrence v. Martin 366 Lawrence v. Taylor 219, 234 Lawrence v. Wilcock 50 Lawson's Appeal 205 Lawsf)n v. Bettison 434 Lawsou V. Snyder 687 Lawson v. State 334 Lazarus v. Sbearer 239 Lazard v. Wbeeler 360 Leacb V. Beattie 180 Leacb v. Cook 41 7 Leacb v. Hewiit 629 Leaf V. Turton 397 Leaby v. Dugdale 358 Leake v. Sutberland 349, 253 PA OH Leal V. Wigram 456 Lean v. Friedlander 569 Leas V. James 385 Leavitt v. Morgan 689 Leavitt v. Palmer 511 Leavitt v. Putnam t . . 593> 595 Leavitt v. Tbompson 63 Leavitt v. Wooster 327 Lebanon Bank v. Mangan 511 Lecatt V. Sallee . 453 Ledbetter v. Walker 234 Ledford v. Smitb 513 Ledwicb v. McKinn Ill, 367 Ledyard v. Ten Eyck 713 Lee v. Colsbill 700 Lee V. Hunter 422, 423 Lee V. Kimball 527, 528, 530 Lee V. Lee 484 Lee V. Levy 157 Lee V. Munn 481 Lee V. Munroe 263 Lee V. Ruggles .... 665 Lee V. Selleck 130 Lee V. Stanley 419 Lee V. Swift . . 581 Lee V. Trustees of Flemingsburgb . . 100 Lee V. Waring 690 Lee V. Woolsey 343 Lees V. Wbitcomb 375 Leeds v. Bowen 487 Leeds v. Cook 725 Leeds v. Marine Ins. Co. . . . 280, 381, 283 Leef V. Goodwin 177 Leffingwell v. Wbite 395 Leger v. Bonnaflfee 84 Legere v. Ricbard 459 Leggett V. N. J. Manuf. and Banking Co 519 Legge v. Tliorpe 628 Lebmau v. Marsball 158 Leigb's Case 431, 432, 475 Leigb V. Everbarts Es'rs 669 Leigbton v. Leigbton 650 Leitb v. Busb 683 Leland v. Douglass 403 Lennon v. Mayor, etc., N.Y. city. . . . 666 Lennon v. Napper 167 Lenox v. Howland 412 Lenox v. Notrebe 154 Lent v. Hodgman 551 Leonard v. Barker 601, 647 Leonard v. Mason 542, 554, 623 Leonard v. Wilkins 321 Leow V. Stocker 677 LePage v. McCrea 570 Lerned v. Morrill 708 Lerued v. Wannemacher. .... 113 LeRoy v. Beard 223 Leroy v. Veeder 164, 167 Lesber v. Roesner 455 Lesley v. Rosson 188 Lester v. Governor "'06 Lester v. Kiuue 220, 233 Lester v. Paine 648 Letton V. Goodden 651 Levi V.Abbott 221 TABLE OF CASES. Ixxi PAGE. Leverick v. Meigs 240 Levy V. Bank of America 50b Levy V. Cohen 80 Levy V. Hampton 704 Levy V. Levy ; 414 Levy V. Peters 507 Lewis V. Berry '663 Lewis V. Buck 425 Lewis V. Burr 632 Lewis V. Commissioners of Bourbon county 227 Lewis V. Culbertson 389 Lewis V. Ingersoll 215, 28(3 Lewis V. Kerr 291 Lewis V. Knox 674 Lewis V. Lee 671 Lewis V. Peck 266, 464 Lewis V. Price 292 Lewis V. United States 362 Lewis V. Lyons 155 Lewallen v. Overton 719 Libby v. Adams 646 Libbey v. Hodgdon 415, 421 Lickbarrow v. Mason. . 522, 523, 524, 526 528, 529 Lichfield v. Simpson 42 Lichtenheim v. Boston & Providence R.R. Co 241 Lick v. Ray 662 Lieber v. Goodrich 546 Ligat V. Commonwealth 737 Liggett V. Weed 625 Lightly V. Clouston 405 Lightbody v. Ontario Bank 573 Lilly V. Commissioners 501 Lilly V. Hayes Ill Lillie V. Hoyt 254 Lime Rock Bank v. Mallett 499 Lincoln v. Flint 490 Lincoln v. McClatchie 270 Lindley v. Dempsey 728 Lindsey v. Bates 365 Lindsay v. Moore 391 Lindus v. Bradwell 564, 621 Lineker v. Ayeshford 524 Linn Rock Bank v. Hewett 615 Lining v. Peyton 328 Linneudoll v. Terhune 301 Linnscott v. Fuller , 413 Limton v. Hart 182 Linton v. Hurley 361 Linthicum v. Remington 468, 470 Liotard v. Graves 232, 243 Lippett V. Kelly 123 Lippincott v. Warder 661 Lisbon v. Bowdoin 720 Liscomb v. Kitrell 222 Litchfield v. Falconer 93 Little V. Cook 489, 491, 492 Little V. Hobbs 94, 119 Little V. Morgan 386 Little V. McKeon . . 447 Little V. Phoenix Bank 506, 546 Little V. Slackford . 550, 559 Littlefield v. Maxwell 710 JLdvermore v. Rliodes 418 PAGE. Livett V. Wilson 293 Livezy v. Philadelphia 161 Livings v. Wiler 233 Livingston v. Adams 161 Livingston v. Arnoux 704 Livingston v. Bank of New York. . . . 514 Livingston v. Byrne 4fci5 Livingston v. Cox 464 Livingston v. Harris 156 Livingston v. Livingston 351, 652 Livingston v. Xewkirk 851 Livingston v. RadclifF 435 Livingston v. Rogers 394 Lloyd V. Calston 247 Lloyd V. Galbraith 352, 353 Lloyd V. General Iron Screw Collier Co 526 Lloyd V. McCaffery 503 Llovd V. Scott 326 LolJdell V. Bushnell 419 Lobdell V. Hopkins 119, 559, 579 Locke V. Lomas 380 Locke V. Stearns 287 Locklin v. Moore 559, 581 Lockwood V. Barnes 301 Lockwood V. Bull 93 Lockwood V. Blackhawk County .... 440 Lockwood V. Thorne 192, 193, 194, 195 Lodge V. Phelps 180 Loftus V. Clark 562 Logan V. Austin 345 Logan V. Logan 211' Logan V . Plummer 683 Logan V. Tibbott 123 Lombard v. Ruggles 357 Long V. Bailie 605 Long V. Colburn 238 Long V. Constant 359 Long V. Heinrich 868 Long V. Long 327 Long V. New York Central Railroad Co 533 Long V. Orsi 460 Long V. Pool 243 Longendyke v. Longendyke 343 Longmeid v. HoUiday 136, 138 Longworth v. Scriven 493 Lonsdale v. Brown 98 Lonsdale's Estate 364 Loomis V. Newhall Ill Loomis V. Simpson 216 Loomis V. Terry 809 Loop V. Litchfield 138 Loper County v. Hart 651 Lord V. Chesebrough . . 590 Lord V. Commissioners of Sidney. . . . 714 Lord Hardwicke v. Vernon 179 Lord V. Veazie 142 Loring v. Boston 101 Loring V Norton 714 Losee v. Buchanan 144, 161, 337 Losee v. Clute 138 Loud V. Charlestown 665 Louge V. Link 30S Louisville & Frankfort Railroad v. Ballard 303 IXXll TABLE OF CASES. PAGE. Louisville Insurance Co. v. Bland. . . 183 Louisville, etc., Canal Co. v. Murphy, 7o3 Louisville & Nashville Railroad Co. V. VVainscott ... 304 Louusbury v. Depew 587 Lounsbury v. Purdy 669 Love V. Hall *. 444 liOve V. Sheffelin 446 Love V. Shoape 678 Love V. White 107 Lcveden v. Loveden 201 Lovett V. Adams 567 Lovett V. Brown 277 Lovegrove v. Cooper 340 Lovington V. County of St. Clair, 710, 714 Lovejoy v. Glipin 428 Lovejoy v. Webber . . .489, 490, 491, 492 Lovelock V. Franklyn 725 Lovell V. Evertson 595 Lowe and Richardson 533 Low V. Hutchinson 450 Ijowe V. Peers 723 Low V Perkins 218 Low V. Staples 663, 666 Lowe V. Weatherly 97 Lowber v. Le Roy 121, 125 L')\very v . Barney 673 Lowry V. Harris 234 Lowery v. Steward 553, 557, 622 Lowry v. Commercial, etc., Bank. . . . 499 Lowry v. Murrell 573 Lowndes v. Dickerson 299 Loyd V. Malone 482, 483 Lucas V. Barrett 155 i.ucas V. Flynn 346 Lucas V. Trumbull 305, 306 Luce V. Carley 711 Luckhartv. Ogden 119 Ludlow V. Ramsey 420 Ludlow V. Simond 174, 175, 179 Luff V. Pope 534, 619 Lumbard v. Aldrich 500 Lumley v. Gye 36 Lumley v. Palmer 622 Lunt V. Bank of North America, 505, 534 Lunt V. Holland 711 Lunning v. Kemp 451 Lupton V. Lupton 169 Luqueer's Estate 206 Luqueer v. Prosser 543 Luques v. Thompson 695 Lush V. Hastings 444 Luttrell V. Hazen 288 Lyall V. Pliggins 398 Lyles V. Platton 252 Lyle V. Murray 252 Lyle V. Richards 7 Lyme v. Allen 152 Lyman v. Lyman 353 Lynam v. Califer 543, 561 Lyncli v. Commonwealth 445 Lynch v. Livingston 121 Lynch v. Onondaga Salt Co 74 Lynch's Adm'r v. Petrie 190 Lynde v. .Judd 471 Lynde v. Montgomery 417 PAGE. Lynn v. Burgoyne 236 Lyon V. Adamson 261 Lyon V. Adde 704 Lyon V. Alcord 394 Lyon V. Burgoyne 216 Lyon V. Clark 682 Lyon V. Hall 693 Lyon V. Hunt 662 Lyon V. Jerome 145, 736 Lyon V. Marshall 539 Lyon V. McLaughlin 652 Lyons v. Merrick 317 Lyons v. Miller 175 Lyon V. Williams 439, 441 Lysaught v. Bryant 647 Lytle V. Beveridge 246 Lytle V. Pope 185 Maber v. Masseas 575 Macdonnell v. Harding 241 Machell v. Einnear 565 Mack's Appeal 681 Macon v. Sheppard 105 Mactier v. Frith 86 Maddux v. Bevan 334, 288, 436 Madison R. R. v. Norwich 287 Madison, etc., Co. v. Stevens 679 Magnin v. Dinsmore 532 Mager v. Hutchinson 676 Magregor v. Rhodes 599 Mahan v. Brown 36, 145, 293, 296 Mahaffey v. Petty 409 Mahoney v. Kekull 259 Maitland v. Citizens' Nat. Bank of Baltimore 612 Mainprice v. Westly 487 Majors v. Rice 719 Maker v. Osgood 248 Malbon v. Birney 386 Malbon v. Southard 596 Malcolm v. Allen 168 Mallan V. May ,, 120 Malley v. Altman 410 Malone v. Murphy 346 Maltby v. Christie 479 Manchester Bank v. Fellows 457 Mandell v. Peet 415 Manders v. V/illiams 285 Mandeville v. Mandeville 655, 658 660, 661 Mandeville v. Reynolds 436 Mandeville v. Union Bank of George- town 50? Mangum v. Ball 268, 269, 270. 284 Manhattan Life Ins. Co. v. Farmers', etc., Nat. Bank 519 Manhattan Life Ins. Co. v. Warwick, 215 Manier v. Myers 293 Maniort v. Roberts 543 Maukin v. Chandler 411 Manlev v. Headley 413 Mann v. City of Utica 663, 669 Mann v. Moors 557 Mann v. Pearson 703 Mann v. Witbeck 123 Manning v. Gasbarie 2'di TABLE OF CASES. Ixxiii PAQE. Manning v. Randolpli 326 Mansfield v. Dorland 454 Mansfield & C. R. R. Co. v. Veeder . . 121 Mansfield v. Wilkerson 461 Marboarg T. Smith 436, 437 Mar -h v. Lidlam 469 iVlardis v. Sliackleford 461 Marine Bank v. Clumeuts 580 Marin • Bank v. Fulton Bank . . . 501, 518 Mar. Ins. Co. v. Hodgson 172 Marine Xat Bank v. Nat. City Bank, 507 508, 509 Marine Bank of Chicago v. Rushmore, 499 Maiiu>- Bank v. Smitli 627 l\Iarin- Bank v. Wright 527 Marine Ins. Co. v. Young 387 Markliam v. Brown 343 Markle v. Hartfield 572 Markley v. Amos 437 Markley v. Withers 385 Marmaduke v. Hannibal, etc.R.R. Co., 650 Marret v. Equitable Ins. Co 549 Marryott v. Young 687 Marselis v. Seaman 214 Marsh v. Burt 709 Marsh v. City of Brooklyn. . 662,. 665, 667 Marsh v. Haywood 493 Marsh v. Jelf 479 Marsh v. Jones 308, 316 Marsh V. Reed 650 !Marsh v. Whitmore 242 Marsh V. Williams 411 Marshall v. Betner 428, 429 Marshal! v. Hamilton 690 Marshall v. Joy 467 Llarsuail v. Means 361 Marshall v. Me-^ch 455 Marshall v. McPherson 378, 390 Marshall v. Parsons 269, 270 Marshall v. Button 671 Marsluill v. Thompson 320 Marsliall v. White 413 Marshall v. York, Newcastle & Ber- wick R. R. Co 136 Marston v. Rowe 664 Martin v. Almond 237 Martin v. Anderson 472 Martin v. Black 86, 96. 97 Martin v. Blydenburgh 607 Marttn v. Branch Bank 421 Martin v. Chauntry 547 Martin v. Clark . . ". 369 Martin v. Dortch 075 Iklartin v. Farns worth 226, 227, 240 Martin v. Flowers 237 Martin v. Hamilton 620 Martin v. Hill 130 Martin v. IngersoU 634 Martin v. O'Brien 710 Martin v. Richardson 366 Martin v . Taylor 696 Martin v. Veeder 369 Martin v. Waddell 710 Martin v. Wright's Adm'rs 269 Martine v. International Life Insur- ance Societj 291 ' Marvin v. Ellwood 461 . Marvin v. Inglis 360 Marvin v. McCullum 565 ' Marvin v. Treat 101 I Marvin v. Wilkins 491 ' Marzetti v. Williams 148, 5U5 Massachusetts Life Ins. Co. v. Car- penter 241 Massie v. Mann 446 Massey v. Davies 179 Ma.son v. Baiiman 246 Mason v. Ditchbourne 702 Mason v. Lickbarrow 521 Mason v. Man 180 Mason v. Ring 452, 466 Mason v. Sprauge 302 Mason v. Stewart 435 Master v. Edwards 550 Master v. Miller 308 Masterson v. Le Claire 439 Matchin v. Matchin 201 Matthews v. Baxter 672 Matthews v. Cribbett 728 Matthews v. Dare 570 Matthews' Estate 469, 470 Matthews v. Fiestel 304 Mathews v. Hamilton 224 Matthews v. McPheraon 9, 157 Matthews v. Pass 150 Mathews v. Terry 342 Matthewson's Case 087 Matteson v. Moyes 90 Mattos v. Hightstrue 154 Matter v. Bleakly 463 Matter of Aitkin 462 Matter of Bangs 659 Matter of Beck with 82 Matter of Bliss 455 Matter of Cooper 432, 433 Matter of Dakin 462 Matter of Dorsey 432 Matter of Fitzgerald 416 Matter of Franklin Bank 503 Matter of Galloway 422 Matter of Henry 431 Matter of Hurd 421 Matter of Mills 433 Matter of Peterson 475 Matter of Stafford 241 Matter of Thompson 410 Matter of Westzinthus 529, 530 Matter of Wood 432 Mauran v. Lamb 637 Maud V. Waterhouse 98 Mauri v. Heffernan 259 Maury v. Ingraham 514 515 Maxwell v Kennedy 153 Maxwell v. Lea 411 Maxwell v. Owen 436 Maxwell v. Palmerton 320 May V. Babcock 531 Mav V. Baker 411 MaV V. Bliss 288 May V. Brownell 189 May V. Burdett 311 May V. KloBs 196 IXXIV TABLE OF CASES. PAGE. May V. Miller 555 May V. Seyler 611 Mayer v. Foulkrod 436 MayDard v. Boston & Maine R. R. . . . 305 Maynard v. Tidsall 385, 401 Mayne v. Griswold 163, 706 Mayor, etc., of Georgetown v. Baker, 476 Mayor of Colchester v. Brooke 62 Mayor of Auburn v. Draper 253 Mayor of New York v. Genet. . 417, 420 Mayor, etc., v. Patten 177 Mayor of York v. Pilkington 651 652 Mayor, etc., of New York v. New York & Staten Island Ferry Co 733 Mayor of Baltimore v. Williams. . . . 372 M'Alexander v. Wright 457 McAllister v. Reab 377 McAllister v. Smith 130 Mc Arthur v. Green Bay, etc., Canal Co 739 McArthur v. Henry 718 McAuley v. State 339 McAvoy V. Long 115 McBee v. Loftie 357 McBlain v. Cross 89 McBride v. Farmers' Bank 415 McBride v. Lynd 308 McBroom v. The Governor 254 McCaffrey v. Wooden 273 McCahill v. Kipp 309 McCall V. Taylor 555 McCandlish v. Hopkins 676 McCandless v. McWha 241 McCann v. McLennan 437, 440 McCants v. Wells 524 M'Caraher v. Commonwealth 690 McCargo v. Criitcher 387 McCarty v. Beach 701 McCarty v. Howell 120 McCarthy v. Mansfield 696 McCaskill v. Elliott. 308, 312, 313, 315 McCaw V. Blewit 205, 207 McCaw V. Burk 208, 210 McCleary v. Edwards 118 McClellan v. Longfellow 468 McClellan v. Osborne 180 McClellan v. Reynolds 260, 261 McClelland v. West 192 McClernan v. Hall 256 McCloskey v. Miller 373 McClurg's Appeal 674 McClure v. Philadelphia, etc.. Rail- road Co , 344 McCollum V. Morrison 151 McCollem v. White 412, 421 McComb V. Wright 483, 485 McConnell v. Brown 438 McConnell v. Thomas 279 McConnell v. Van Aerman ... 63 McCormack v. Obannon 185 McCormick v. Bush 215 McCormick v. Wheeler 232 McCorney v. Stanley 98 McCoy V. Galloway 707 McCoy V. Herbert 357 ■?AG* McCoy V. Lemon , 337 McCrary v. Carrington 568 McCrea v. Marsh 340 McCready v. Thomson 293, 295 McCroskey v. Mabey 272 McCullock V. Aten 716 McCulloch V. McKee 284 McCiillough V. Colby 41 McCullough V. McCullough 405 McCiillough V. Wall 713 McCullough V. Wainright 711 McCurdy v. Rogers 258 McDermott v. Doyle 695 McDonald v. Campbell , 153 McDonald v. Falvey 493 M 'Donald v. Faulkner 400 McDonald v. Kneeland 368 McDonald v. Longbottom 118 McDonald v. Simpson 119 McDonald v. Todd 442 McDonnell v. Pittsfield and North Adams Railroad 805 McDonough v. Delassus 254 McDougal V. Armstrong 656, 661 McDougald v. Dawson 235 McDougald v. King 212 McDowell V. McCullough 704 McDowell V. New York Central Rail- road Co 304 McDowell V. Shields 668 McDowell V. Simms 482 McEwan v. Morey 395 McEwen v. Davis 503, 504 McFarland v. Crary 395, 464 McFai'land v. Farmer 424 McFerran v. Chambers 398 McGavock v. Woodlief 270 McGehee v. Hansell 447 McGill V. Compton 317 McGill V. McGill 465 McGinnity v. Languerenne 393 McGlinchy v. Hall 361 McGoldrick v. Willets 406 McGrath v. Clark .' . 557 McGrath v. Hardy 410 McGraw v. Walker 641 McGruder v. Bank of Washington. . . 620 McHenry v. Cawthorn 419 Mclntire v. Clark 394 Mclntyre v. Kennedy 568 Mclntyre v. Warren 196, 198 McKay v. Green 354 McKean v. Shannon 691 McKecknie v. Sterling 173 McKee v. Bartley 394 McKee v. Commonwealth 690 McKee v. Hoover i58 McKee v. Judd 360 McKellar v. Couch. 426 McKenzie v. Durant 626 McKenzie v. Nevins 274 McKenzie v. Wardwell 454 McKillip V. McKillip 695 McKim V. Odom 387 McKinlay v, Morrish 524 MacKiuley v. McGregor 214 TABLE OF CASES. Ixx^ PAGE. McKinley v. Tucker 356 McKinley v. Watbias 103 McKinney v. Miller 675 McKnight t Duulap 406 McKuight V. Lewis 645 McKnight V. Wlieeler 600 McKone v. Wood <316 McLain v. Matlock 343 McLaren v. Hall 314 McLaren v. Steapp 175 McLaren v. Watson's Exrs 583 McLaughlin v. Hutckins 696 McLoughlin v. McGovern 600 McLean v. Clark 470 McLean v. McDugald 704 McLelland v. Snider 404 McLemore v. Goode 335 McLeod V. Drummond 328, 339 McLeod V. Savannah, etc.. Railroad Co 729, 734 McLeod V. Snee 554 McLin V. McXamara 176 McLure v. Steele 207 McMahoD V. Allin 369 McMahou v. Franklin 353 McMahon v. McGraw 350 McMahon v. Smith 453, 46(i McManuers v. State 469 McMartiu v. Bingham 176, 187 McMasters v. Pennsylvania Railroad Co 343 McMechen v. Mayor, etc., of Balti- more 476 McMillan v. Eastman 388 McMillen v. Staples 143 McMillian v. Wallace 400 McMiun V. Riclitmyer 331 McMurray v. Rawson . . 173 McNair v. Gilbert 603, 604 McNairy v. Thompson 133 McXamara v. King 346 McNaughton r. Partridge ... 218 McXeilly v. Richardson 101 McXinch V. Ramsey 698 McXulty V. Collins 394 McjSTutt* V. McMahon 676, 678 McPherson v. Meek 679 McPherson v. Snowden. 411 McPike V. Pen 665 McQueen v. Middletown Man. Co. . 431 McRoberts v. Washburn 651 M'Tavish v. Dunning 473 McVey v. Blair 303 McW horter v. McMahan 319 McWilliams v. Martin 121 McWilliams v. Willis 383 Mliank v. Butsh 555 Share v. Wilson 118, 121 Sharp V. Carter 659 Sharpe v. Drea 621 Sharp V. Edgar 358 Sharpe v. Hunter 426 Sharpe v. Rodgers 97- Sharp V. United States 677 Sharp V. Wright 483 Shattuck V. Carson 669 Shattuck V. Hammond 301, 308, 204 Shaughnessy v. Fogg 478 Shaver v. Ehle 600 Shaver v. Norris 451 Shaver v. Western Union Tel. Co . . . 552 Shaw V. Gardner 531 Shaw V. Reed 700 Shawham v. Clarke 308 Sliays V. Norton 664 Sheaham v. Barry 728 Shear v. Overseers of Hillsdale, 375, 390 Shearman v. Niagara Fire Ins. Co.. . 371 Shetfield Canal Co. v. Sheffield and Rotherham R. R. Co 87 Sheffield Water Works v. Yeomans, 64» 650 Sheldon v. Babock 121 Sheldon V. Rockwell 652 Sheldon v. Sherman 161 Shell V. Martin 664 Sheltou V. Marshall 180 Shelton V. Merchants' Dispatch Trans. Co 316, 322 Shepherd v. Guernsey 155 Shepard v. Hawley 621 Shepherd v. Lincoln 789 Shepard v. Little 378, 380 Shepherd v. Newkirk 409 Shepherd v. Temple 615 Sheppard v. Wilkiius 191 Sliepardson v. Milwaukie Co 067 Sheriff V. Smith 458 Sherman v. Barnard 95, 106 Sherman v. Gassett 130 Sherman v. N. Y. Central R. R. Co . . 385 Sherman v. Rawson 728 Shernier v. Beale 681 Siiervvuod v. Saratoga, etc., R. R. Co., 347 448 Sherwood v. Smith 205 Shiekls V. Cone 163 Shiiilds V. Commonwealth 166 Bhielda r. Pringle 704 P^QK Shields V. Shields 655 Shipman v. Cook 569 Shirfey v. Bartley 308 Shirk's Appeal 196, 197 Shiver v. Brock 206, 207 Shoemaker v. Kellogg 189 Shoemate v. Lockridge 666 Shoop v. Clark 899 Shook V. Daly 359 Shores v. Caswell 489 Shore v. Wilson 116 Shorr v. McCameron 351 Short V. Skipwith 253 Short v. Stone 735 Short v. Town of Lancaster 683 Shorter v. People 343 Shotwell V. Shotwell 657 Shotwell V. Weeb 364 Shriver v. Stevens ..,_ 226 Shufeldt v. Abernetliy 333 Sibree v. Tripp 511 Sibley v. Waffle 468 Sice V. Cunningham 619, 640 Sidwell V. Evans 98 Siegel v. Gould 448 Sigfried v. Levan 678 Sigler V. Smith 571 Sigourney v. Lloyd 591, 597 Sill V. Rood 400, 615 Silveruail v. Cole 95, 96, 97 Silvis V. Ely 441 Siltzell V. Michael 384 Simmons v. Law 129 Simmons v. Walker 705 Simpson v. Barry 393 Simpson v. Black 738 Simpson v. Dendy 709 Simpson v. Lombas 489 Simpson v. Warren 399 Simons v. Monier 161 Simouds V. Heard 238 Simonds v. Henry 341 Simonson v. Kissick '. . 370 Simontou v. Barrell 443 Sims V. Brown <. 461 Sims V. Gurney 184 Sims V. Harris 695 Sims V. Lively 337, 339, 330 Sims V. Sims 851 Sims V. Stillwell 588 Sinclair v. Jackson 218 Singleton v. Bramer 674 Singleton v. Mann 315 Sinnard v. MoBride 409 Sipjjerly v. Stewart 129 Sisson v. Willard 897 Sitgreaves v. Farmers and Mechanics' Bank 277 Skeate v. Beale 671 Skelton v, Brewster 98 Skeel V. Spraker 186 Skilding v. Warren '. 608, 611 Skillen v. Richmond 596 Skip v. Harwood 658, 659 Skipper V. Stokes 355 Skinner v. Demming 612 TABLE OF CASES. Ixxxtx PAGE. Skinner v. Gunn 223, 237 ykinner v. Maxwell 659 Skinner v. Somes 368 Skinner v. Wynne 207 Slack V. Kirk 601 Slade's Case 374 Slade V. Teasdale 190 blade v. Van Vechten 180 Slater v. Irwin 231 Slatert v. Rink 345 Sledge V. Lee 427 Slenier's Appeal 155 Sloan V. Gibson 90 Sloan V. Summers 364 Slone V. Thomas 603 Slocam V. Holmes 569 Slocum V. Hooker 158 Slocum V. Newby 447 Sloo V. Law ... 463 Small V. Atwood 282 Small V. Herkimer Manufacturing Co. 43 Small V. Sloan 99 Small V. Smith 608, 611 Smart v. Baugh 400 Smedes v. Elmendorf 460 Smedes v. Utica Bank 516, 518 Smilie v. Stevens 356 Smith V. Abbott 576, 635 Smith V. Algar 98 Smith V. Allison 200 Smith V. Applegate 571 Smith V. Arnold 487 Smith V. Aylesworth 41, 641 Smith V. Barker 403 Smith V. Bassard 438 Smith V. Birmingham Gas Co 219 Smith V. Boston, etc., R. R 395 Smith V. Bowditch 448 Smith V. Bowes 170 Smith V. Braine 611 Smith V. Brotherline 468 Smith V. Busby 701 Smith's Case . ! 334 Smith V. Causey 308 Smith V. Chatham 715 Smith V. Condry 252 Smith V. Cook 310 Smith V. Crooker 676 Smith V. Davis 451 Smith V. Dixon 440 Smith V. Dodge 714 Smith V. Eakm 427 Smith V. Essex Co. Bank 516 Smith V. Faulkner 115, 122 Smith V. Gardner 540 Smith V. Gibson 223 Smith V. Giegrich 574 Smith V. Great Eastern Railway Co. . 316 Smith V. Green 318 Smith V. Hamilton 719 Smith V. Hawkins 733 Smitli V. Holcomb 345 Smith V. Howdeu 7C9 Smith V. Jewett 168 Smith V. Jones 506 Smith. V. Junction Railway Co 142 L PAGE Smitt V. Kendall 563 Smith V. Knox 610 Smith V. Levaux 174 Smith v. Lipscomb 463 Smith V. Lusher 541, 673 Smith V. Masten 199, 203, 204 Smith V. Masters 201 Smith V. McAllister 718 Smith V. McClusky Ill Smith V. McGehee 401 Smith V. McGuire 591 Smith V. McXamara 718 Smith V. Mead 130 Smith V. Mer'^ier 600 Smith V. Miller 506, 569 Smith V. Moore 100 Smith V. Mullikin 438 Smith V. Muncie Bank 625 Smith V. Nelson 119 Smith V. New York »fe New Haven R. R. Co 360 Smith V. Nightingale . . 551 Smith V. Niles 424 Smith V. Orser 423 Smitli V. Ostrand 661 Smith V. Overby 345 Smith V. Pelah " 314 Smith V. People's Bank 432 Smith V. Pittsburgh, etc., R. R. Co. . 346 Smith V. Poor 563 Smith V. Rankin . 357 Smith V. Rockwell 164, 605, 606, 639 Smith V. Rogers 93, 364 Smith V. Schauck 567, 568 Smith V. Sherman 727 Smith V. Slocum 340 Smith V. Smith. . . 190, 208, 309, 210, 377 386, 406, 568 Smith V. Starr 365, 583 Smith V. State 833, 344, 474 Smith V. Stewart 434 Smith V. Stinson 694 Smith V. Story 426, 428 Smith V. Sublett 336 Smith V. Thompson 467 Smith V. Tracy 333 Smith V. Tucker 192 Smith V. Vertue 635 Smith V. Water Com 331 Smith V. Weed 98 Smith V. Whildin 100 Smith V. White 43 Smith V. Whiteside 254 Smith V. Wilson -^71 Smith V. Woodfine 727 Smith V. Woodward 705 Smith V. Wright 59 Smith V. Young 455, 603 Smithwick v. Evans 473 Smock V. Dade 490, 493 Smothers v. Hanks 341 Snee v. Prescot 591, 597 Sneed v. Wiester 178 Snelgrove v. Snelgrove 211 Snelling V. Boyd 591 Snelliiig V. Howard 257, 26C TABLE OF CASES. PAGE. Sneesl>y v. Lancashire, etc., Railway Co 149 Snyder v. Castor 384 Soilleaux v. Soilleaux 201 Sollory V. Leaver 660 Soloman v. Holt 571 Somes V. British Empire Shipping Co 275 Somes V. Skinner 702 Sommerville v. Stephenson 387 Soper V. Sumner 285 Sossaman v. Powell 664 Soutliard v. Rexford 727, 728 Southgate v. Montgomery 188 South wick V. Estes 287 Soutliwick V. Sax 572 South wick v. Soutliwick . 194 South Carolina Soc. v. Johnson 691 Southern Exp. Co. v. Palmer 233 South- Western Freight Co. v. Stan- ard 129 Spafford v. Page 363 Spaids V. Barrett 143, 671 Spangler v. Springer 194 Sparks v. Martindale 693 Sparrow v. Chisman 610 Spa aiding v. Crawford 672, 678 Spaulding v. Oakes 319 Spaulding v. Ruding 529 Spaulding v. Simms 416 Spaulding v. Wallett 428 Spaulding v. Warren 718 Speake v. Sheppard 389 Speaker v. United States 687 Spear v. Atkinson 628 Spear v. Cummings 149 Spears v. Ledergerber 436 Spear v. Myers 591, 612 Spear v. Pratt 623 Spear v. Stacy 697 Spedding v. Newell 258 Speed's Ex'r v. Adams 350 Speek T. Commonwealth 696 Spencer v. Blaisdell 422, 423 Spencer v. Buchanan 678 Spencer v. Field 236 Spencer v. Harding 87 Spencer v. Harvey 627 Spencer v. Kinnard 447 Sperry's Estate 350 Sperry v. Willard .... 455 Spies v. Gilmore 596, 684, 636 Spinks V. Davis .... 447 Spooner v. Holmes 688, 689 Sporrer v. Eifler , 156 Spraights v. Hawley 265 Spratt v. M'Kinneys 389 Sprauge v, Gillett 223 Sprauge v. Hazenwinkle 177 Spray v, Ammerman 321 Spring v. Coffin Ill Spring V. Hight 208 Spring V. South Carolina Ins. Co. . . . 277 358, 369 Springer v. Whipple 439 iSpringsteen v. Sampson 123 PAGE Spurrier v, Elderton 481 Spyer v. Fisher 247 Squares v. Campbell 63 Squier v. Norris 237, 238 Staat V. Evans 403. 406 Stacy V. Pearson 175 Stacey v. Randall 123 Stack" V. Banks 734, 739 Stackhouse v. O'Hara 435 Stafford v. Ingersol 308, 317 Stafford v. Yates 647 Stagg V. Elliott 591 Staines v. Shore 482 Stainer v. Tysen 227 St. Albans v. Failey 177 Stalker v McDonald 590. 613, 643 Staniford v. Barry 491, 493 Standiford v. Gentry 723 Stanly v. Nelson 700 Stanley v. Brannon 208 Stapleford v. Brinson 707 Stamford Bank v. Benedict . 177 Standish v. Dow 663 Stanford v. Mangin 716 Stausbury v. Marks 400 Stanton v. Blossom 628 Stanton v. Camp 239 Stanton v. Eager 534, 527, 529 Starbird v. Moore 493 Starke v. Cheeseman 373 Stark V. Coffin 709 Starke v. Kenan 440 Stark V. Parker 386 Starnes v. Erwin 408 Starr v. Vauderheyden 466 State V. Atherton .... 687 State V. Baker 335 State V. Bartlett 690 State Bank v. Bank of the Capitol. . . 518 State V. Beck 36, 146, 344 State V. Blackwell 334 State V Blakemore 691, 693 State V. Bodly 680 State V. Boscawen 731 State V. Bowman 690 State V. Bryson 338 State V. Campton 733 State V. Chase 386 Slate V. Chrisman 679 State V. Church 332 State V. Clark 684 State V. Clements 709 State V. Commercial Bank 519 State V. Commercial Bank of Cincin- nati 514 State V. Coukling 476 State Bank v. Cor with 399 State V. Crow 334 State V. Dearborn 734 State V. Dunnavant 117, 120 State V. Elliott 341 State V. Epperson 332 State V. Gilmanton 711, 712 State V. Givan 690 State V. Green 301 State V. Hampton 382 TABLE OF CASES. XCi PAGE. State V. HaBtings ^ 261 State Bank v. Hastings 99, 359, 361 State V. Hazleton 468 State V. Holding 474 State V. luliabitants of Freeport 730 State V. Jennings 378 Stale V. Jersey City 712 State V. King 732 State V. Lafaivre 115 State V. Lawson 423 State V. Layton 684 State V. Malcolm 332 State V. Manly 423 State V. Martin 343 State V. Matthis 215 Slate V. Mooney 333 State V. Morgan 333 State V. Myers 333 Slate V. Oden 679 State V. Parrott 735 State V. Porter . . 148 Slate V. Quinn 347 State V. Rawles 332 Slate Mut. Fire Ins. Co. v. Roberts. . . 366 371 State V. Rousseau 695 State V. Rucker 476 State V. Scoggiu 697 State V. Seawall 732 State V. Sliepard 332 State V. Sims 333 State V. Smith 332 State V. Start 434 Stale V. Taylor 301 btate V. Thomas 427. 429 State V. Thompson 675, 684 Slate V. Thomson 670 State V. Turner 299 State V. Turnpike Co 734 State Bank v. Van Horn 513 State V. Vannoy 332, 333 State V. Van Pelt 692 State V. Watkins 434 State V. Wells 689 State V. Wiiliams 342 State V. Woodside 447 Slate V. V^oodward 340 State V. Young 718 Steam Navigation Co. v. "Wright .... 358 Stearns v. Felker 452 Stearns v. Marsh 277 Stearns v. Page 198 Stearns v. Sampson 335 Stebbius v. Niles 191, 194 Steele v. Buck 703 Steele v. Ellmaher 480, 483, 484 Steele v. Mcintosh 254 Steene v. Aylesworth 390 Steere v. Steere 208 Steigleman v. Jeffries 377 Steinfield v. Levy 725 Steinhart v. Boker 614 Steuton V. Jerome 192, 194, 195 Stephens v. Graham 4U2 Stephen v. Matlox 472 Stephen v. Myers 333 P-1G31. Stephen v. Smith 344 Stephenson v. New York & Harlem R. R. Co 226 Stephenson v. Taverners 657 Steltheimer v. Meyer 611 Stellar v. Nellis 347 Steuben Co. Bank v. Mathewson . . . 700 Stevens v. Adams 451 Stevens v. Boston and Maine R. R. . . ,250 Stevens v. Cooper 183 Stevens v. Damon 189, 190 Stevens v. Judson 702 Stevens v. Legh 481 Stevens v. McNeill 568 Stevenson v. Newnham 36 Stevens v. Strong 541, 543 Stevens v. Walker 241, 445 Stevens v. Wheeler 528 Stevenson v. Hoy 223 Stevenson v. Robbins 412 Stewart v. Ahrenfeldt 95 Stewart v. Ball 301 Stewart v. Balderson 360, 368 Steward v. Biddlecum 221, 443 Stewart v. Clark 686 Stewart V. Cole 417 Stewart v. Coulter 720 Stewart v. Eden 629, 636 Stewart v. Flowers 454 455 Stewart v. Hawley 144 Stewart v. Kerr 173 Stewart v. Lang 123 Stewart v. Mather 248, 270 Stewart v. McGuin 97 Stewart v. Saybrook 400 Stewart v. Small 591 Stewart v. Smith 506 Stewart v. Southard 149 Stewart v. Stewart 354 Stewart v. Stokes 170 Stewart v. West 367 Stewartsou v. Lothrop 43 Stickney v. Stickney 697 Stief V. Hart 45 Slier V. Surget 380 Stiles V. Brown 193 Stille V. Traverse 523 Stimpson v. Sprauge 379 Stipp V. Johnston 384 Stirling v. Forrester 183 Stilt V. Huidekopers 83, 84 St. John V. Diefendorf 454, 455 St. John V. Purdy 569 St. John V. St. John's Church 273 St. Ijouis V. Clemens 356 358 St. Louis Perpetual Ins. Co. v. Cohen, 421 St. Louis and Memphis Packet Co. v. Parker 228 St. Louis, etc., Ins. Co. v. Soulard. . . 398 St. Mary's Church v. Stockton 327 Stocketl V. Watkins 406 Stockton V. Turner 683 Stockwell V. Bramble 592, 623 Stockham v. Stockham 86 Stoddard Woolen Manuf. v. Huntley, 276 Stoessenger v. South-E. Railway Co., 555 xcu TABLE OF CASES. PAGE. Stokes V. Turnpike Co 381 Stokely v. Robinson 438 StoLe V. Chamberlain 490 Stone V. Compton. 703 Stone V. Miller 411 Stone V. Myers 679 Stone V. State 478 Storer v. Freeman 710 Storey v. Robinson 63 Storking v. Sage 272 Storm V. Stirling 538 Story V. Lovett 1 13 Story V. Odin 294, 295 Stout V. Cook 664 Stout V. Rassel 403 Stout V. St. Louis Tribune Co 382 Stout V. Wren 345 Stover V. Eycleshimer 356 Stow V. Black 189 Stow V. Hamlin 451 Stowe V. Sewall 399 Stowell V. Haalett 664 St. Pancras v. Battenbury 42 St. Peter v. Denison 145, 736 Strange v. Harris 660 Stratton v. Henderson 447 Strelly v. Wilson 180 Streeter v. Poor 235 Streeter v. Streeter 120 Strickland v. Woodwortb 62 Striugham v. St. Nicholas Ins. Co. 230, 235 Strobel v. Large 387 Strock V. Little 413 Strohickerv. Farmers' Bank, 118, 124, 131 Strohecker v. Grant 390 Stroh V. Hess 367 Strong V. Barnes 123 Strong V. Dunlap 730 Strong V. Hart 285 Strong V. Stevens 643 Stronghill v. Anstey 327, 329, 330 Strother v. Hamburg 365 Strother v. Missouri 433 Stroud v. Baruett 351 Stroud v. Tilton 190, 191 Strouse v. Whittlesey 161 Strutt V. Smith 408 Stuart V. Hawley 161 Studabaker v. White 684 Stumps V. Kelly 312 Sturgess v. Cary 184 Siurt V. Marquis of Blandford 201 Succession of Liles 444 Suffolk Bank v. Lincoln Bank . . 513, 514 Sullivan v. Fiunegan 663, 664 Sullivan v. Lewiston Inst, for Sav- ings 510 Sullivan v. Scripture 309 Sullivant v. Reardon 685 Sumner v Reickeniker 271 Sunbury & Erie R R. Co. v. Hummell, 145 Supervisors of Onondaga v. Briggs. . 18 Supervisors of St. Joseph v. CofFen- bury 682 Sussdorff V. Schmidt 452 SatherlHid v. Pratt a97 Sutphen v. Cushman 198 Sutton V. Bishop 489 Sutton V. Dillaye 231 Sutton V. Kettell 521 Sutton V. Tatham 229 Suydam v. Allen 255 Suydam v. Clark 83 Suydam v. Jackson 172 Suydam v. Vance 459 Suydam v. Westfall 617, 618, 642 Swallow V. Beaumont 398 Swan V. Cox 576 Swansborough v. Coventry 294 Swasey v. Little 327 Swanzey v. Parker 367 Swartwout v. Mechanics' Bank 504 Sweeney v. Willing 378 Swepson v. Harvey 369 Sweet V. Chapman 614 Sweeting v. Fowler 540, 542 Sweetser v. French 219 Swift V. Chamberlain 148 Swift V. Crow (;82 Swift V. Hawkins 703 Swift V. Hopkins 263 Swift V. Marsh 399 Swing V. Sparks 189 Swisher v. Grumbles 123 Sykes v. Giles 477 Sykes v. Laffery 98 Sykes v. Summerel 384 Symonds v. Carr 393 Syracuse, etc., R. R. Co. v. Collins. . 569 624 Tabor v. Cannon 223, 259 Tabor v. Parrott '. 266 Taft Vale R. C. v. Nixon 174 Taft V. Inhabitants of Montague. . . . 376 Taintor v. Prendergrast 280, 281, 283 Talbert v. Cason 400 Talbot V. Dailey 403 Talbot V. McGee 440 Taliaferro v. Cuudiff 115 Taliaferro v. Lane 42'. Taliaferro v. Porter 434: Tallaut V. Burlington Gas-light Co., 426 428 Talledaga Ins. Co. v. Woodward .... 511 Taukerslv v. Anderson 436 Tanlkersiig v. Childers 407 Tanner v. Bank of Fox Lake 568 Tappan v. Austin 403 Tapley v. Coffin 452 Tajiling v. Jones 293 Taplin v. Packard 398, 540 Tarbell v. Bradley 413 Tarrent v. Booming Co 667, 668 Tate V. Booe 686, 693 Tate V. Evans 240 Tatlock V. Harris 81 Taught V. Holway 71? Taunton Copper Co. v. Merchants' Ins. Co 129 Tayloe v. Merchants' Fire Ins. Co. . . 8S Taylorv. Allen d5£ TABLE OF CASES. XCIU PAGE. Taylor v. Ashton 139 Tajlor V. Atchison 566 Taylor v. Atkinson 615 Taylor v Bates 254 Taylor V Beuham 239 Tavlor v. Branch Bank 44>> Taylor v. Bullen 584 Taylor v. Clendening 338 Taylor v. Dobbins 555 Taylor v. Drane 413 Taylor v. French 627 Taylor v. Glazer 670 Taylor v. Harlow 240 Taylor v. Holman 176 Taylor v. Morrison 185 Taylor t. Myers 418 Taylor v. Nussbaum 223 Taylor v. Palmer 356, 358, 362 Taylor v. Porter 183 Taylor v. Reese 211, 369 Taylor v. Robinson 224 Taylor t. Rountree 665, 666 Taylor v. Shelton 258 Taylor v. Sip 507 Taylor v. Snyder 556, 620, 636 Taylor v. Spears 254 Taylor v. Steamboat Robert Camp- bell 89 Taylor v. Thomas 565 Taylor v. Tompkins 176, 179 Taylor v. Tucker 191 Taylor v. Williams 239 Teasdale v. Atkinson 372 Tebbetts v. Dowd 634 Tefft V. Marsh 722 Temper t. Barton 207 Temple v. Gove 165 Templeton v. Bascom 97 Tenant v. Elliott 255 Tenham v. Herbert 650, 651, 652 Terhune v. Colton 351 Terrill v. Beecher 189 Terwilliger v. Wands 149 Terry v. Chandler 718 Terry v. Fargo 223, 231 Terry v. Parker 636 Terry v. Sickles 194 Teschemacher v. Thompson 710 Tevis V. Young 555 Texas v. White 689 Thackray v. Blackett 606 Thacher v. Hannahs 275 Thacker v. Henderson 356 Thallhimer V. Brinckerhoflf 355, 356 Tharp y. Tharp 194 Thatcher v. Bank of the State of N. Y 499 Thatcher v. England 100 Thayer v. Kelley 359 Thayer v. King 166 Thayer v. Willett 410 The Argentina 527 The Auditor v. Ballard 101 The Delaware .... 521, 532, 533, 531, 532 The Distilled Spirits 232 The Eddj 523 PAGE. The Floyd Acceptances 227 The Governor v. Daily 214 The Invincible 525 The J. W. Brown 531 The Juniata Patou 525 The Justices v. Wynn 690 The King v. Box 539, 543 The Lady Franklin 531 The Loon 523 The Mayflower 521, 523 The Mayor v. Horn 693 The Mohawk 526 The Monte Allegre 478 The Gibers 525 The Oriflamme 525 The Grpheus 425 The Peytona 523 The Reeside 129 The Thames 524, 529 The Tigress 533 The Vaughan. 524 The Water Witch 524 The Wellington 532 Thom V. Bigland 140 Thoma v. Cappo 207 Thomas v. Bartow 156 Thomas v. Brachney 40 Thomas v. Churton 147 Thomas v. Coldwell 164 Thomas v. Gaye 208 Thomas v. Hatch 711 Thomas' Adm'r v. Hawks 195 Thomas v. Kerr 480 Thomas v. Roosa 395 Thomas v. Ship Morning Glory 525 Thomas v. Steele 457 Thomas v. Todd 573 Thomas v. W'inchester 137 Thomas v. White 653 Thomasson v. Agnew 143 Thompkius v. Dudley 171 Thompkins v. Wadley 728 Thompson v. Armstrong 563 Thompson v. Bank of the State 243, 516 Thompson v. Blanchard 90, 331 Thompson v. Brown 178, 350, 354 Thompson v. Busch 343 Thompson v. Carmichael 211 Thompson v. Carper 413 Thompson v. Clubley 610 Thompson v. Downing 524, 533 Thompson v. Emery 370 Thompson v. Kelly 479 Thompson v. Ketcham 558, 609, 640 Thompson v. Lee County 688 Thompson v. Lockwood 671 Thompson v. Lynch 664, 666, 667 Thompson v. Matthews 733 Thompson v. McCord 701 Thompson v. McCullough 367 Thompson v. Mumma 343 Thompson v. New York & Hudson Railroad Co 729 Thompson v. Railroad Companies 32 Thompson v. Rose 425 Thompson v. Sloan • 546 XCIV TABLE OF CASES. PAGE. ThompsoE V. State 691 Thompson v. Stewart 628 Thompson v. Thompson 374 Thorinffton v. Smith 698 Thome V. Deas 104,290 Thorn v. Knapp 727 Thorn v. WoodruflF 410 Thornton v. Wood 422 Thornton v. Wynn 376 Thornett v. Haines 484 Thorold v. Smith 477 Thorp V. Burling 265, 285 Thrall v. Newell 120, 121, 367 Thrallheimer v. Brinckerhoff 368 Thurman v. Van Brunt 617 Thurmond v. Sanders 193 Thurston v. Mink 296 Thurston v. Spratt Ill Thurston v. Wolfborough Bank 513 Thwaites v. Mackenzie 460 Tibbetts v. Estes 709 Tibbetts v. Gerrish 574 Tibbitts V. Townsend 420 Tice V. Gallop 222 Tieman v. Leland 98 Tier v. Lampson 290 Tierman v. Jackson 369 Tift V. Jones 735 Tiffany v. Lord 439 Tiller V. Spradley 256 Tilman v. Allies 397 Tillmes v. Marsh 720 Tillotson V. McCrillis 253 Tillotson V. Tillotson 130 Timms v. Shannon 366 Timothy v. Simpson 840, 341 Timrod v. Shoolbred 378 Tindall v. Taylor 524, 532 Tingley v. Cutler 90 Tipping V. Eckersley 654 Tittle V. Thomas 539 Tobey v. Barber 568, 569 Tobey v. Berly 635 Todd V. Reid 284 Todd V. tobey 390 Tole V. Hardy 378 Tome V. Parkersburgh, etc.. Railroad Co 288 Tomlinson v. Borst 191 Tomiinson v. Mason 702 Tompkins v. Philips 91 Tompson v. Mussey 429 Toms V. Warson ^^ 411 Tonawanda Railroad Co. v. Hunger, . 305 Torr's Estate 350 Torrance v. McDougald 125 Torry v. Foss 166 Torry v. Hadley 569, 599 Totty V. Nesbitt 705 Toussaint v. Martinnaut 374 Toulmin v. Price 103 Tower v. Appleton Bank 512 Tower v. State 332 Towle V. Hatch 450 Towle V. Leavitt 227, 482, 484 Towle V. Stevenson 256 PAGE. Towler v. Eountree . . 213 Town of Queensbury v. Culver 379 Town of Delhi v. Graham 458 Town of Montgomery v. Plank-road Co ■ 685 Towner v. Providence & Worcester Railroad 305 Townsend v. Bank of Racine 573 Townsend v. Billinge 567 Townsend v. Carpenter 369 Townsend v. Derby 563 Townshend v. Duncan 326 Townsend v. Hubbard 237 Townsend v. Stisquehanna Turnpike, 732 Towsley v. Denison 194, 198 Tracy v. Chicago 123, 126 Tracy v. Strong 825 Tradesmen's Bank v. Astor 509 Tradesmen's Bank v. Merrilt 510 Train v. Gold 94, 103 Traip v. Gould 175 Transportation Co. v. Downer 525 Trasher v . Everhart 675 Trask v. Roberts 238 Traub v. Millikin 282, 284 Travis v. Barger 200 Travis v . Tartt 410 Travis v. Thompson 675 Tread well v. Abrahams 193 Tread well v. Davis 106, 107 Treadwell v. Moore 177 Treat v. Cellis 230 Treat v. Orono Ill Trelawny v. Coleman 202, 204 Tremper v. Barton 209 Trenton Banking Co. v. Haverstick. . 221 Trenton, etc., Co. v. Raff 143 Trevor v. Wood 88, 89 Tribble v. Frame 339 Trimbey v . Vignier 180 Tripp V. Frank 731 Troost V. Davis 157 Trotter v. Smith 467 Troup V. Haight 198 Trovinger v . McBurney 674 Trowbridge v. Weir 430 Troy Academy v. Nelson 105, 388 Troy City Bank v. Grant. . . 559, 626, 638 Troy City Bank v . Lauman 625 True V. Thomas 506 Trueblood v. Trueblood 214 Truesdell v. Booth 172 Trueman v. Hurst. . : 192 Truman v. McCollum 696 Truscott V . King 152 Truslow V. Putnam 424 Trust V. Pirsson 276 Trustees of Watertown v. Cowen . . . 450 Trustees, etc., v. Dickinson 713 Trustees v. Gallatin 673 Trustees of Newburg v. Galatian . . . 273 Trustees v . Garvey , 105 Trusteesof Huntington v. Nicoll, 649, 650 Trustees of Brookhaven v. Strong . . 710 Tryon v. Baker 406, 407 Tryon v . Mooney 110 TABLE OF CASES. XC7 PAGE. Tryon v. Oxley 588 Tuberville v . Savage B34 Tubbs V. Van Kleck 727 Tucker v. Burrow 209 Tucker v. Humphrey 529 Tucker v. Kenniston 669 Tucker v. Madden 162 Tucker v. Stokes 684 Tucker v. Streetman 127 Tucker V. Woods 87, 102 Tucker v. Woolsey 228 Tufts V. Hayes 686 Tull V. David 486 Tullay V. Reed 339 Tuller V. Voght 288 Tullis V . Sewell 387 Turner v. Carutbers 457 Turner v. Davis 492 Turner v. Field 675 Turner v. Fendall 42^ Turner v. Hadden 695 Turner v. Jones 272 Turrell v. Norman 737 Turner V. Peck 731 Turner v. Steam Coal Co 408 Turner v. Turner 251 Tutt v. Couzins 359. 363 Tuttle V . Howe 360 Tuttle V. Mayo 252 Tuttle V. Standish 164, 165 Tusbury v. Miller 674 Tweddle v. Atkinson 103 Twyman v. Knowles 148 Tyler v . Ames 289 Tyler v. Barrows 356, 358 Tyler v Freeman 478 Tyler v . Hammond 709 Tyler v. Parr 270 Tyler v. Stevens 569, 599 Tyler v. Taylor 217 Tyson v. Lansing 415 Tyson v . State Bank 243 Ubsdell V. Pierson 120 Udall V. Kenney 95 Udell V. Atberton 287 Ublein v. Cromack 303, 320 Underbill v. Gibson 239 Underwood v. Brockman 85 Underwood v . Dollins 675 Underwood v. Hassack 97 Underwood v . Swan 167 Union Bank v . Beirne 218 Union Bank v. Coster 584, 585 Union Bank v. Geary 441 Union Bank v . Govan 442 Union Bank v . Knapp 503 Union Bank v. Middlebrook 233 Union Bank, etc., v. Mott 223 Union Bank v. Osborne 165 Union Nat. Bank v. Sixth Nat. Bank, 518 Union Bank v. U. S. Bank 421 Union Bank v. Warren 166 United States v. Appleton 294, 296 U.S. Bank v . Bank of Georgia 512 United States Y. Bartle 339 PACK. United States v. Brown 269, 685 United States v. Buchanan 129, 269 United States v. Buford 356, 368 United States v. City Bank of Colum- bus 518, 519 United States v . Curry 463 United States v. Dugun 279 United Slates v. Filltbrown 269 United States v. Freeman 342 United States v. Grossmayer 215 United States v. Hand 332 United States Exp. Co. v. Haines. . . 274 United States v. Huckabee 45 United States v. Hunt 341 United States v. Linn 675 United States v. Little Charles 682 United States v. Maurice 681 United States v. McDonald 269 United States v. Mitchel 685 United States v. Mvers 332 United States v. Ortega 332, 385, 336 United States v. Porter 474 United States v. Richardson 333 United States v. Russell 74, 382 United States v. Stevenson 414 United States Ins. Co. v. Shriver . . . 232 United States v. Thompson 685 United Slates v. Tingev 692 United States v. White" 541, 561, 562 United Slates v. Wolf 386 United States v. Wright 693 University of Vermont v. Buell 105 Upton V. Archer 678 Upton V. Suflblk County Mills 478 Upton V. Wallace , 3< 4 Urquhart v. Mclver 276 Utica Ins. Co. v. Toledo Ins. Co 247 Utterson v. Mair 655, 658 Vaden v. Hance 206 Vail V. Jackson 442 Vail V. Jersey Little Falls Manuf. Co., 268 Vail V. Mumford 387 Valentine v. Piper 222 Valentine v. Stewart 448 Valentine v. Van Wagner 168 Van Allen v. American Bank ...... 503 Van Alen v. Vanderpool 223 Van Alstyne v. Nat. Commercial Bank, 603 Van Amringe v. Peabody 273 Vanblaricttm v. Yeo 675 Van Car v. Haslett 387 Vance v. Bloomer 579 Vance v. Huling 211 Vance v. Monroe 177 Van Doren v. The Mayor, etc., of N. Y. 667 Van Driel v. Rosierz 365 Van Dusen v. Hay ward 684 Vait Duyne v. Vreeland 656 Van Duzer v. Howe 228 28G Vandeuburgh v. Truax 147 Vanderbilt v. Richmond Turnpike Co 264, 266, 288 Vandegrift V. Rediker 305 Vandekarr v. Vandekarr 74 Van Etta v. Evenson 67C XCVl TABLE OF CASES. PAGE. Van Epps V. Harrison 376 Tau Epps V. Van Epps 201, 246 Van Hagan v. Van Rensselaer . . . . 123 Van Hoesen v. Van Alstyne 592 Vauliook V. Barnett 690 Vanlioebergh v. Hasbrouck 263 Vanhouten v. Keily ... 359 Van Kirk v. Wilds 412 Van Leuven v. Lyke 304, 310 Vaumeter v. McFaddin 155 Van Pelt v. Mcliraw 141 Van Rensselaer v. Cliadwick . . . 181, 182 Van Rensselaer v. GiiJord 182 Van Reimsdyck v. Kane 130 Van Stapliorst v. Pearce 379 Van Steenburgh v. Tobias 318 Vansittart v. Taylor 50 Vansittart v. Vansittart 699 Van Valkenburgh v. Smith 701 Van Valkenburgh v. Stupplebeen . . . 608 Van Valkinburgh v. Watson 378 Van Vecliten v. Pruyn 631 Van Wagner v. Terrett 550, 551 Van Wyck v. Bauer 414 Varnum v. Martin 460 Vassar v. Camp 86 Vaughan v. Porter 125 Vaughan v. Taff Vale Railway Co. . . 145 Veazie v. Williams . . 282, 288, 482, 483 Veazie Bank v. Winn 506, 619 Vedder v. Superintendent, etc., of Schenectady 262 Veile V. Hoag 182 Veueall v. Veness 723 Vennum v. Gregory 271 Verdin v. Robertson 89 A'erholf v. Van Hourvenlengen . ... 201 Vermilya v. Austin 17 Verplank v. Caines 658 Very v. Levy 222 Vianna v. Barclay 242, 256 Vicars v. Wilcocks 149 Vielie v. Osgood 113 Village of Delhi v. Youmans 145 Vilas V. Downer 451 ViUers V. Ball 292 Vincent v. Rather 233 Vincent v. Rogers 385 Vincent v. Sllnehour 161, 162 Vorhees v. Martin 45 Vosburgh v. Thayer 191 Vosburgh v. Welch 412 Vose V. Cowdrey 157 Vose V. Dolan 679 Voss V. Bachop 461 Waddell v. Reddick 120 Waddington v. Vredenbergh . . . 489, 491 492 Wade V. Kalbfleisch 727 vVadsworth v. Sherman 82 Wadsworth v. Treat 345 Wagner v.- Baird 153 Wails V. Cooper 155 Wailing v. Toll 400 Waiu Wright v. Read 477 PAOR Wakefield v. Ross 71S Wakefield v. Stedman 131 Wakefield Bank v. Truesdell 519 Wakemau v. Dalley 139, 140 Wakeman v. Hazelton 221, 241 Wakeman v. Robinson 160, 161, 337 Walden v. Bolton 436 Waldron v. Willard 361 Walker v. Advocate, etc 476 Walker v. American Nat. Bank 458 Walker v. Bank of State of N. Y., 625, 637 Walker v. Bietry 452 W' alker v. Bradley 169 Walker v. Brown 74 Walker v. Cheever 175, 176 Walker v. Constable 485 Walker v. Devlin 719 Walker v. Egbert 566 Walker v. Fitts 146 Walker v, (Joodman 460 Walker v. Goodrich 465 Walker v. Gregory 674 Walker v. Great Western Railway Co 226 Walker v. Herring 486 Walker v. Hill 169 Walker v. Holmes 446 Walker v. Johnson 366 Walker v. Lyde 622 Walker v. Palmer 246 Walker v Peay 663 Walker v. Perkins 674 Walker v. Russ 281 Walker v. Rushbury 455 Walker v. Sargeant 454 Walker v. Squires , . 615 Walker v. State Bank of New York, 251 Walker v. Stetson 619 Walker v. Swartwout 261 Walker v. Tirrell 270 Walls v. Bailey 129 Wall V. Lee 343 Wallace v. Agry 619 Wallace v. Barker 425 Wallace v. Bradshaw 243 Wallace v. Morgan 266, 288 Wallace v. State Bank 501 Waller v. Tate 365 Waller v. Thomas 19 Wallis V. Beauchamp 123 Wal 1 worth V. Holt 7 Walmsley v. Aoton 634 Walmsley v. Child 164, 165 Walmsley v, Robinson 723 Walpole v. Bishop 461 Walpole V. Carlisle 445, 460 Walrad v. Petrie 539, 540, 563 Walradt v. Maynard 254, 443, 444 Wal rath v. Thompson 253 Walsh V. Dart 619 Walters v. Glats 303 Walters v. Monroe 234 Walter v. Ross 529 Walter v. Walter 384 Walton v Dickerson 455 Walton V, Sugg 463 TABLE OF CASES. XCVll PAGE. Waples V. Hastings 214 Ward's Appeal 679 Ward V. Allen 622 Ward V. Brown 308 Ward V. Dewey 662, 667 Ward V. Guant 217 Ward V. Howard 414 Ward V. Johnson 397 Ward V. McKenzie 415 Ward V. Morrison 370 Ward V. Neal 295, 296 Ward V. Smith 215 Ward V. Ward 351 Ward V. Warner 373 Ward V. Weeks 39 Warden v. Eden 490 Warden v. Hughes 562 \\ arden v. Burnham 390 Warden v. Greer 531 Warder v. Tucker 628 Wardlaw v. Gray 166 Wardrop v. Dunlop 283 Warhus v. Bowery Savings Bank. . . 510 Warlow V. Harrison 484, 485 Ware v. Street 513, 573 Waring v. Catawba Co 392 Waring v. Cheeseborough. 702 Waring v. Purcell 325 Warington v. Wheatstone 533 Warner v. Bennett 168 Warner v. Campbell 92 Warner v. Everett 418 Warner v. Griswold 464 Warner v. Martin 273 Warner V. Southworth 713 Warren v. Bennett 357 Warren v. Hawkins 467 Warren v. Jones 118 Warren v. Lynch 574, 675 Warren v. Mains 512 Warren v. Merrifield 122 Warren v. Ocean Ins. Co 219 Warren v. Sprauge 447 Warren v. State 334 Warren Bank v. Suffolk Bank 499 Warren v. Wheeier 119 Warren v. Whitney 91 Warring v. Richards 599 Warring v. Yates 394 Warwick v. Cooper 102 Warwick v. Matlock 697 Washburn v. Gould 122 Washburn v. Mosely 686 Washington v. Johnson 442 Washington v. Triplett 619 Washington Ice Co. v. Webster. . 83, 87 89 Wason V. Rowe 115 Watchman v. Crook 380 Waters v. Bristol 722 Waters v. Brown 343, 347 Waters v. Whittemore 430 Waterbury v. Sinclair 590, 601 V\ aterhouse v. Dorr 476 Waterhouse v. Skinner 395 Waterman v. Barratt 98 M. PAOB, Waterman v. Dutton 119 Waterman v. Johnson 708, 712, 715 Waterman v. Younger 177 Watervliet Bank v. White, 688, 597, 643 Watkins v. Cousall 247 Watkins v. Cranch 627 Watkins v. Eames . 105 Watkins v. Maule 171 Watkins v. Trustees of Richmond College 388 Watrous v. Steel . . 338 Watson V. Bennett 519 Watson V. Blaine 380 Watson V. Christie 347 \\'atson V. Evans 540 Watson v. Hopkins 225 Watson v. Hunter 187 Watson V. Knightley 563 Watson V, Muirhead 445 Watson V. Murray 176 Watson V. Owens 569 Watson V. Phoenix Bank 244, 504 Watson V. Pierpont 415 Watson V. Randall 97 Watson V. Snaed 673 Watson V. Stever 387, 406 Watson V. Swaun 233 Watson V. Tarpley 620 Wattson V. Thibou 41 Watson V. Todd t25 Watts V. Kinnev 21 Watt V. Conger 175 Watt V. Mitchell 627 Waugh V. Middleton 125 Waydell v. Luer 570 Wayland v. Mosely 521, 531 Wayland v. Tucker 182 Wayne v. Steamboat General Pike . . 122 Waynick v. Richmond 670 Weakly v. Watkins 154 Weart v. Hoagland 385 Weathers v. Mudd 422 Weaver's Appeal 205, 209 Weaver v. Bachert 723 Weaver v. Barden 591 Weaver v. Bentley 409 Weaver v. Puryear 413 Weaver v. Ward 160 Webb V. Baird 453 Webb V. Browning 451 Webb V. Coonce 404 Webb V. Jiggs ... 326 Webb V. Ridgely 151 Webb V. Portland Manufacturing Co. 148 Webber v. Davis 360 Weber v. Kingsland 129 Webster v. Cobb 596 Webster v. De Tastet 252, 255 Webster v. Ela 113 Webster v. Orne 426 Webster v. Pierce 241 Webster v. Watts 343 Weed V. Nutting 490 Weed V. Panama R. R. Co 265 Weed V. Sman 188 Weedon v. TimbreH WO xcvm TABLE OF CASES. PAGE. . . 491 . . 640 643 127 738 407 616 Weeks v. Fox Weeks v. Lawrence Weeks v. Pryor Weigand v. Sichel 406, 408 Weile V. United States ^»^ Weimer v. Sloane 4*5 Weir V. Weir's Adm'r • • - • • • i^» Weiss V Mauch Chunk, etc., K.R. Co. 38& W^eisse v. New Orleans • • • • 4o8 Weisser v. Dennison 508, Weisser v. Maitland Weitner v. Delaware, etc., Co Welch V. Bagg Welsh V. Carter Welch V. Durand • • • • ^^^ Welch V. Maude ville ^50, 360 Welch V. Sage »»» Weld V. Gorham -j^^ Weld V. Lancaster *°^ Welder v. Hunt • '^f Weldon v. Harlem R. R. Co 30J Weller v. Smeaton ^'^i Weller V. St. Paul ••• 666 Wells V. Brigham ^^o, 03» pAoa Whatman v. Pearson 264 Wheat V. Cross °*^ Wheaton v. W^heatley v Wheatley v Wheeler v . Wheeler v. Wheeler v. Wheeler v. Wheeler v. Wheeler v. Wheeler v. 463 109 560 672 166 208 359 346 93 261 714 720 Wells V. Foster • • • Wells V. Hatch 454 Wells V. Mann Wells V. Whitehead Wells V. Williams ■ • • Welton V. Adams Welton V. Divine Wendell v. Van Rensselaer w<' Wenman v. Mohawk Ins. Co o4U Wentworth v. Day -fj^ Werk V. Mad River Bank • • • 6iJ Wescott V. Potter 9^' West V. Forrest W'est V. Hosea West V. Houston f^j, West V . J ones West V. Shaw ■:^"-^' '.-,' West V. St. Louis K. C andN. Rail- way Co ..••• West Covington v. Frekiug ^^o West Roxbury v. Stoddard < 1^ West River Bank v. Taylor . ...... • 630 Western Penn. R. R. Co. v. Childs, 73- Western Transportation Co. of Buf- falo V . Lansing ^^'^ Western Counties Manure Co v. Lawes Chemical Co 7, 17, 28, 140 Western Trans. Co. v. Marshall . . Western Union Tel. Co. v. Quinn Western v. Sharp • Western Bank v. Sherwood ... 69^ Weston v. Barker Hi, Westfall V. Braley Westfield Bank v. (.Jornen ^^^ Westminster College v. Gamble 105 Wethey v. Andrews 640 Wetherbee v. Dunn '-'.^ Wetherbee v . Ezekiel 4b« Wetmore v . Law 'Jf^-j^ Wetmore v . Wells ^^^^ Wexel V . Cameron 5o.j Wharton V. Walker 505 Wheaton 84 , Harris 299, 303 . Williams 472 Brandt 313, 314 Kuaggs 512 Patterson J-'lo Spinola 712, 718 Warner 559, 640 Wheeler 360, 482 , . ...^.^. . . Willard 467 Wheelock v. Wheelock 399 Whelan v. Edwards 1*_>4 Whelan v. Sullivan 113 Wheelwright v. Moore 3J3 Whipple V. Walpole I'J^ Whistler v. Foster 58b Whitaker v . Bank of England 500 Whitcomb v . Wolcott 722 White V. Banks • • • • 183 Bishop of Peterborough . . . bob 660 Bluett • • • • 95 Brown 586.590 White V. Buck ^^2 White's Case • • • • 4'0 White V. Campbell 192, 194 White V. Clapp 491, 492 White V. Corlies 83 White W^hite V. White V. White V. Godfrey. 709 White V. Hampton 1^5, 194 White V. Hotfaker ■ • • • 44i White V. Madison ^^*> ^5» White V. Merritt I'j';^ White V. Osborn -^1^ Whites V.Polk 118 White V. Roberts • • • 45- White V.Smith 125,126,290 White V. Springfield Bank, 591, 611, 612 White V. Tucker 368 White V. Van Horn 1^| White V. Van Kirk 531 White V. Vermont & Massachusetts 526 308 385 577 573 Railroad Co . 688 White V . Ward.'.'. , - • 249, 250 Whitefield v. Longfellow - • ■ • 6 < 1 Whitenall v. Morse 394, oJ5 Whitehead v. Anderson . • • 5^8 Whitehead v. Potter 1U2, ^»u Whitehead v. Tuckett. . ... ^. • •;, --l" 229 123 568 164 470 386 415 Whitehouse v. Liverpool Gas Co Whitehouse v. Moore Whitehurst v. Boyd Whitbeck v . Van Ness • • • Whitfield v. Faussat 162, Whiting V. Barney 469, Whiting V. Sullivan Whitman v. Keith Woodward «>'* 857 214 Whitmore Whitney v. Buckman. Whitney v. Dutch Whitney v. Holmes. . . Whitney v. Merchant Union Express Whitney v. Slay ton 674, 68« 719 24a TABLE OF CASES. xcix PAGE. Whitney v. Snider 566 Whitney v. Stearns 90 Wliitted V. Governor 685 Whitten v. Whitten 208, 209 Whittingham v. Ideson 299, 304 Whittle V. Skinner 94 Whittlesy v. McMahon 372 Whitsell V. Mebane 679 Whitsell V. Womack 680 Whitwell V. Johnson 499 Whitworth v. Tilman 110 Wickes V. Adirondack Co 567 Widuer v. Lane 233 Wieland v. White 434 Wiffin V. Kincaid ... 336 Wigg V. Simonton 449 Wiggins V. Burkham 194 Wiggins V. Hathaway 267 Wigley V. Blackwal 703 Wightman v. Coats 722 Wilbour V. Gilmore 409 Wilbour V. Turner 562, 586 Wilbur V. Hubbard 319 Wilburn v. Larkin 237 Wilcox V.Hunt 130 Wilcox V. Jackson 45 Wild Cat Branch v. Ball 678, 679 Wild V. Blanchard 425 Wild V. Harris 725 Wilde V. Jenkins 196 Wilder v Cowles 257 Wilder v. Keeler 350, 351 AVilder v. Seelye 639 Wilder v. Sprauge 552 Wiley v. Moore 678 Wilev V. Sledge 419 Wilev V. Traiwick 428 Wilford V. Berkeley 203 Wilks V. Back 237 Wilkes V. Ellis 476 Wilkins v. Jadis 620 Wilkinson v. Campbell 480 Wilkinson v. Griswold 266, 465 AYilkinson v. Lutridge 601 Wilkinson v. Parrott 316 Wilkinson v. Scott 380 Wilkinson v. Vorce 447 Willard v. Bridge 392 Willard v. Germer 569 Willard v. Goodrich 441 Willard v. Stone 102 Willard v. Tillman 356 Willard v. Warren 60 Willetsv.PhcBnixBank, 507,542,561, 624 Willetts V. Sun Mutual Insurance Co 71, 103 Willet V. Willet 405, 406 WilLey v. State 682 Williams v. Alexander 98 Williams v. Bank of the United States 704 Williams v. Benton 471 Williams v. Branch Bank 328 Williams v. Bricknell 89 Williams v. Butler 458 Williams v. Cummington 731 PAGE. Williams College v. Danforth 105 Williams v. Dixon 321 Williams v. Gage 411 Williams v. Gibbs 460 Williams v. Glenny 192 Williams v. Henshaw 379 Williams v. Higgins 242, 251 Williams v. Hunter 426 Williams v. Inabnet 671, 677 Williams v. Jones 336 Williams v. Matthews 595, 597 Williams v. Mears 210 Williams v. Merritt 234 Williams v. Miller 108 Williams v. Millington 488 Williams v. Otey 328 Williams v. Poor 480 Williams v. Powell 95 W illiams v. Reed 435 Williams v. Bobbins 257 Williams v. Saunders 420 Williams v. Shackelford 232, 243 Williams v. Shelby 684 Williams v. Stonestreet 211 Williams v. Storm 220, 234 Williams v. Suffolk Insurance Co 184 Williams V. Turnpike Corporation.. 732 Williams v. Vines 398 Williams v. Cochran 229 Williams v. Walker 283 Williams v. Waters 115 Williams v. Williams 201 Williams v. Winans 592, 622 Williams v. Woods 236, 243 Williams v. Beck 421 Williamson v. McClure 123, 126 Williamson v. Morton 328 Willis V. Bernard 202 Willis V. Green 621, 636, 648 Willis V. Hobson 108 Willis V. Vallette 232 Wilmerdiugs v. Fowler 449, 462 Willmout V. Meserole 446 Wilmouth v. Patten 119 Willoughby v. Moulton .... 555 Wills v. Kane 453 Wills v. Noyes 428 Wilson V. Anthony 153 Wilson V. Baptist Education Society, 112 Wilson V. Beauchamp 210 Wilson V. Bigger 671 Wilson V. Bowden 364 Wilson V. Britton 418 Wilson V. Campbell 677 Wilson V. City of New Bedford 161 Wilson V. Danforth 421 Wilson V. Davisson 329 Wilson V. Doster 328 Wilson V. Goit 39, 149 Wilson V. Greer 391 Wilson V. Guy ton 275 Wilson V. Hudson 719 Wilson V. Ireland 680 Wilson V. Mallett 179 Wilson V. Martin 274 Wilson V. Middleton C^ 6 TABLE OF GASES. Wilson V. Outlaw 436 Wilson V. Paul 350 Wilson V. Railroad Company 304 Wilson V. Root 427 Wilson V. Russ 445 Wilson V. Smith 444 Wilson V. Tumman 233 Wilson V. Wadleigh 442 Wilson V. Watson ... 490 Wilson V. Wilson, 189, 195, 242, 413, 405 Wilt V. Ogden 400 Wilts and Berks Canal Navigation Co. V. Swindon Water Works Co 148 Wilton V. Webster 199, 202, 204 Wincliell v. Noyes 406 Winchester v. Howard 281 Wingate V. Mechanics' Bank 517 Wings V. Brown 374, 394 Winnebinner v. Weisiger 674 Winslow V. King 709 Winslow V. Norton 529 Winslow V. Wood 701 Winsmore v. Greenback 140, 202 Winsor v. Griggs 259 Winston v. Francisco 374 Winston V. Street 198 Winstone v. Linn 342 Winter v. Coit 274, 275 Winter v. Drury 622 Winter v. Henn 200, 204 Winter v. Stevens 60 Winthrop v. DockendorflF 684 Winton v. Meeker 401 Wires v. Briggs 450 Wise V. Decker 387 Wisconsin, etc., Co. v. Lyons 730 Withers v. State 434 Withers v. Yeadon 171 Witherow v. Keller 493 Withington v. Herring 228 Witte v. Vincenot 510 Witter v. Arnett 152 Woburn v. Henshaw 471 Woder v. Powell 438 Wofford V. Board of Police, etc 663 Wolcott V. Van Santvoord. . 559, 626, 635 Wolf v. Chalker 299 Wolfe V. Luyster 480, 484 Wolfe V. Myers 521, 522, 523, 531 Wood V. Anders 454 Wood V. Gee 378 Wood V. Goodridge 238 Wood V. Kelly 712 Wood V. La Rue 322 Wood V. Leadbitter 340 Wood V. Merchants' Savings, etc., Co., 509 Wood V. Monroe 663 Wood V. Ogden 681 Wood V. Partridge 362 Wood V. Perry 368 W oods V. Schroeder 398 Wood V. Seely 667 Wood V. Washburn 677 W ood T. Weir 428 Wood V. Willis 670 Wood V. Wood 201, 325, 655, 660 PAGKi Woodburv v. Blair 257, 260 Woodbury v. Laund 234, 283 Woodford v. Darwin 556 Woodhouse v. Shepley 723 Woodin V. Foster 644 Woodin V. Frazee 506, 619 Woodman v. Churchill 608 Woodman v. Eastman 627 Woodruff V. Commercial Mut. Ins. Co 137 Woodruff V. McGehee 282 WoodruiJ v. Woodruff 334 Woodson V. Moody 394 Woodward v. Genet 543 Woodward v. Suydam 271 Woodward v. Webb 266 Woodworth v. Bank of America .... 620 638 Woodworth v. Sweet 214 Woody V. Flournoy 393 Wolf V. Chalker 312, 320 W^oolery v. Woolery 309 Wooster v. Van Vechten 734 Wooten V. Hinkle 483, 483 Wooten V. Reed 389 Worcester v. Essex Merrimac Bridge, 734 Worcester Turnpike v. Willard 388 Worden v. Dodge 553 Wormley v. Gregg 312 Wormley v. Wormley 330 Wormuck v. Rogers 95 Worrall v. Munu 218, 219, 234 Worster v. Proprietors of Canal Bridge 337 Worth V. Gilling 312, 313, 315 Worthen v. Stevens 386 Worthy v. Tate 164 Wray v. Tuskegee Ins. Co 503 Wren v. Kirton 659 Wright V. Bartlett 93 Wright V. Black 449 Wright V. Burbank 330 Wright V. Calhoun , 267 Wright V. Cobleigh 401 Wright V. Court 336 Wright V. Daily 435 Wright V. Deklyne 477 Wright V. Eaton 364, 365 Wright V. Garliughouse . . . 545, 617, 618 Wright V. Maxwell 119 Wright V. Nagle 730 Wright V. Parks 438 Wright V. Simpson 657 Wright V. State 451, 453 Wright V. Wright .... 165, 166, 603, 604 Wroe V. Washington 404 Wyant v. Lesher 683 Wyche v. Macklin 703 Wyckoff V. Bergen 441 Wyman v. Gray 339 Wyman v. Smith 390 Wyndham v. Lord Wycombe 201 Wyukoop V. Seal 271 Wynn v. Alden 633 Wynne v. Governor 678 Wynne v. Lord Newboroagh 850 TABLE OF CASES. ci PAGE. Yale V. Flanders 684 Yale V. Rex 685 Yale V. Tappan 290 Yarborough v. Abemathy 719 Yarborough v. Bank of England. . . . 594 Yardlv V. Ellill 448 Yare v. Harrison 661 Yates V. Been 671 Yates V. Joyce 141 Yates V. Lansing 147 Yates V. Olmstead 468 Yates V. Nash 539, 551 Yates V. Van Ee Bogart 711, 714, 716 Yeatman v. Corder 272 Ye] verton v. Burton 423 Yingling v. Cohass 562 Y ocum V. Smith 558 York Bank v. Appleton 439 Y'ordon v. Hess 471 Young V. Adams 573 Young V. Black 400 PAGE. Young V. Collet 489, 493 Young's Estate , , . . 213 Young V. Hays 389 Young V. Hickens 40, 302 Youngs V. Lee 611, 644 Young V. Mackall 378 Young V. Marshall 405 Young V. Noble 517, 518 Young V. Rummell 400 Youngs V. Stahelin 569 Youngblood v. Norton 205 Younger v. Skinner 665 Y'ourt V. Hopkins 477, 478 Yundt's Appeal 205, 210, 212 Yundtv. Roberts 700 Zabriskie v. Smith 361 Zachery v. Brown 897 Zerger v. Sailor 394 Zetelle v. Myers 179 Zimmerman v. Zimmerman 403 PART I . OF ACTIONS AND DEFENSES. IN WHICH THEY AKE CONSIDERED GENERALLY, AND IN THEIR RELATIONS TO REMEDIES, WHETHER OF A LEGAL, OR OF AN EQUITABLE NATURE; OR WHETHER FOUNDED UPON CONTRACTS, OR UPON TORTS ; UPON LEGAL DUTIES, OR UPON EQUITIES. CHAPTER I. OF RIGHTS AND REMEDIES, AND OF THE NATURE OF ACTIONS. TITLE I. OF CONTRACTS AND OF TORTS. ARTICLE I. OF RIGHTS OF PERSON AND OF PROPERTY I]S" GEISTERAL. Section 1. Some general considerations. Every person has an interest in the laws and the remedies which exist for the protec- tion of person, and of property. The rights of natural persons are either absolute^ and such as relate to life, limb, liberty, health, or reputation ; or, they are relative, and such as pertain to the relations of husband and wife, parent and child, guardian and ward, or master and servant, and the like instances. There are also rights of artificial persons, such as corporations, joint-stock companies, or other similar organizations. In addition to those just mentioned, there are rights of prop- erty, whether it be of a corporeal, or of an incorporeal nature; and whether it consists of real, or of personal property. The rights of persons are generally considered as the gift of God; and, are regarded as inalienable, unless they are forfeited by some act of the person, in violation of the laws under which 2 OF RIGHTS, REMEDIES AND ACTIONS. he lives; or, unless he voluntarily consents to some act, or enters into some contract, or relation, which affects, changes, or le- prives him of the right to insist upon them ; or, in other words, unless he binds himself by contract to do, or to omit some acl or thing; or estops himself from claiming and insisting upon such natural rights. In declaring, defining, and securing these rights of person, and of property, the talents, time, and labor, of the ablest and best men have been employed. The Constitution of the United States ; and, the Constitutions of the several States, all furnish the most clear and conclusive proof of the wisdom and justice' of the plan, and of the deep and permanent interest which has been felt and exhibited by every class of citizens, in every part of the Union. In addition to these constitutional guarantees, there are extensive systems of statutes relating to the same rights. There are statutes of the United States, as well as those of every State, which have for their object, the security of rights, and the redress of wrongs; and, they are intended to provide for the protection of every right, and the redress of every wrong, so far as that can be accomplished by human laws, whether writ- ten or unwritten. It may be said, generally, that all civil actions are founded upon some act, or some omission in regard to private rights or duties, in relation to person or to property. So, too, it may be said, in a general way, that acts or omissions are actionable, or not actionable, according to the circumstances under which they take place. The act of loading and discharging a gun or a pis- tol, may be, of itself, an innocent and lawful act ; and it may sometimes be an actual duty, as in the case of a soldier engaged in battle. But, the act of discharging a gun or a pistol in a pub- lic street, in a large city, where serious injury may result from the act, and where such act is in violation of a general law, or of some valid ordinance of the city, may be unlawful, and action- able under the circumstances of the case. Again, it is presump- tively unlawful for one person to injure or to kill another, and yet the act when done in necessary defense of life may be lawful and justifiable; and in some extraordinary cases, the act may be not merely lawful, but may be considered a duty imposed by the law, as where a soldier in battle kills an enemy, or a sheriff executes a murderer in pui-snance of the sentence of the law and of the court. The motives with which an act is done is sometimes made the OF RIGHTS, REMEDIES AND .^CTIOISS. 3 test whether the act is actionable; and at other times the motive merely affects the question of damages; and in stiJ other cases, the motive, however bad it may be, does not give a right of action for doing what is clearly a lawful act. Words spoken, may be actionable or otherwise, according to the circumstances and the motives which call for or prompted their utterance. A witness in a cause, counsel in the trial of an action, or a person called upon as to the character of a servant, may honestly and fairly discharge the duties imposed by the situation in which he is placed, without liability to an action; while the same words if uttered without cause, under circumstances which did not call upon the party to speak, and especially, if maliciously uttered, may subject the speaker to an action. There may be acts too, which are done from humane and good motives, but they are in violation of the legal rights of another, and are therefore actionable. One man cannot lawfully punish another man's child, merely because he richly deserves it; and the cases are very numerous upon the point that honest or good motives are no justification for an unlawful act. So, too, the cases are numer- ous that a lawful act does not furnish a ground of action, how- ever bad or malicious the motive which prompted the act. This whole subject will be full}^ illustrated under the title Injuries not Actionable. In a work like the present, it is not possible to discuss all the important and various questions which relate to rights and remedies, either as to person or as to property ; and, therefore, for the purpose of a convenient division of the subject, the work will be limited to those rights, duties, or liabilities, which are founded upon contracts, upon torts, upon legal duties, or upon equities. § 2. Of contracts in general. In relation to the importance of a knowledge of the law of contracts, no proof or argu- ment will be required, since its value is seen, and its neces- sity felt, in all the business transactions of life. In the inter- course among men, there are buyers and sellers, lenders and borrowers, employers and employed ; those who let, and those who hire ; those who insure, and those who are insured ; and, yet, these are but a few of the illustrations of the extent and variety of contracts, express or implied. In all such cases, it is unwise and unsafe to contract obligations, or to incur liabili ties, of the nature or extent of which the contracting party is entirely ignorant, or, at best, but partially informed. To aid in ft OF RIGHTS. REMEDIES AND ACTIONS. the acquisition of a competent general knowledge of the si bj^'jt, is the object of the present work. The law of contracts is a universal one, which is adapted to all times and all civilized races, and to all places and circum- stances, because it is founded upon those great and fundamental principles of right and wrong, which are immutable and eternal, and which present a striking uniformity among all nations, whatever seas or mountains may separate them, or however many ages may have elapsed between the periods of their exist- ence. The law of contracts may very properly be regarded as one of the foundations of human society. Every phase of social life assumes its existence ; for out of contracts, express or implied, grow many, if not most, of the rights, duties and obli- gations of persons toward each other. The law of contracts is, therefore, important, from its declaring and defining the rights and duties which arise from contracts. But it is chiefly valuable for the means or power which it furnishes, with the aid of the courts, for the enforcement of contracts ; or the securing of the remedies which are given by law for a breach of them. § 3. Of torts in general. Torts may, and frequently do^ occur, independently of any contract ; but they may also be founded upon or grow out of some violation of a right created or secured by contract. Torts are as numerous and as various, as the ingenuity, the experience or the malice of mankind can devise, or carry into efl"ect. And for this, reason, the law does not limit the remedies which may be employed for the protection of rights, or the redress of wrongs. To show this in the strong- est and clearest light, it is only necessary to refer to the maxim, ^^UhijusiM remedium,'''' or "There is no wrong without a remedy," Broom's Leg. Max. 191; and in the course of this work numerous illustrations will be furnished. And since torts are infinitely various, it would be an endless task, as well as a useless effort, to attempt an enumeration, or a description of all the wrongs of which the law takes cognizance, and for which redress is afforded by restraint or prevention, or by compensa- tion in damages for the injury sustained. It is sufficient to say that injuries and wrongs are constantly occurring, and that civil actions for their redress are numerous enough to occupy a fail share of the attention of the legal profession and of the c'^>Airts The injuries referred to are such as relate to perse n or to property, in whatever manner such injury may occur. Every wrongful invasion of a legal right, such as the right to security of person, OF RIGHTS, REMEDIES AND ACTIONS. 5 the rights of property, or the rights incident to the possession of property is, in law, an actionable tort ; and so of every neglect of a legal duty, and of every wrongful injury to the person, or character of another The law of torts or civil wrongs, there- fore, having for its object the security of our persons, and char- acter, and the protection of our property, is a branch of the law of general interest and importance, and there are few persons to whom some knowledge of it does not become essential, at some time, for the purpose of securing or protecting themselves in their just and lawful rights, or for the purpose of ascertaining the nature and extent of their legal duties or responsibilities. The table of contents, and the index will furnish a reference to the numerous instances in which actionable torts are discussed in this work. In continuation of the matter in hand, the next subject for consideration will be the nature of the common law, and of equities, as well as the discussion of some of the general principles relating to actions or defenses. TITLE II. OF THE NATUEE OF ACTIONS. ARTICLE L OF THE NECESSITY FOR ACTIONS, AND OF THEIR ORIGIN. Section 1. Of laws ; their nature and objects. In every con- dition of civilized society there must be some customs, rules, or principles, by which rights may be investigated, duties or liabilities declared, controversies determined, and remedies en- forced. Among the advantages to be derived from entering into society are those of protection of person, and the security of property ; and, therefore, men have a right, and they are in some degree compelled, to apply to the public authorities for redress when rights are withheld, or injuries have been committed. The natural right of individuals to redress wrongs, or to take the law into their own hands, cannot exist in a well -organized state of society, except in a few instances ; and the general rule is, that all rights must be declared, and all remedies enforced by the proper tribunals in accordance with settled principles and the forms of law. 6 OF RIGHTS, REMEDIES AND ACTIONS. The elements or principles of a system of laws may be com- paratively simple in form, and few in number, when considered with reference to their origin in an early stage of society ; but, as the wants of society increase, the system will expand until it extends to and includes every case which, according to justice, and the public interest, requires consideration. It is one of the great merits and advantages of the common law, that, instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the cir- cumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more so by judicial exposition ; so that, when, in a course of judicial proceeding, by tribunals of the highest authority, the general rule has been modified, limited and applied, according to particular cases, such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances. The effect of this expansive and comprehensive character of the common law is, that while it has its foundations in the prin- ciples of equity, natural justice, and that general convenience which is public policy ; although these general considerations would be too vague and uncertain for practical purposes, in the various and complicated cases, of daily occurrence, in the business of an active community ; yet the rules of the common law, so far as cases have arisen, and practices actually grown up, are ren- dered, in a good degree, precise and certain, for practical purposes, by usage and judicial precedent. Another consequence of this expansive character of the common law is, that when new prac- tices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial decision, they must be governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of those circumstances. The consequence of this state of the law is, that, when a new OF RIGHTS, REMEDIES AND ACTIONS. 7 practice or a new course of business arises, the rights and duties of parties are not without a law to govern them ; the general con- siderations of reason, justice, and policy, which underlie the par- ticular rules of the common law, will still apply, modified and adapted, by the same considerations, to the new circumstanceSc If these are such as give rise to controversy and litigation, thej soon, like previous cases, come to be settled by judicial exposi- tion, and the principles thus settled, soon come to have the effect of precise and practical rules, Norway Plains Co. v. Boston and Maine Railroad, 1 Gray, 263, 267,268; Bellv. The State, 1 Swan. (Tenn.) 42 ; Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R., 9 Exch. 222, 223 ; S. C, 10 Eng. Rep. 394, 395. With the advancing state of society, new questions are con- stantly arising for decision, and the courts adapt the practice and course of proceedings to the existing condition of things, instead of adhering to forms and rules which were established under different circumstances ; and they do not decline the enforcement of rights or the administration of justice, because there is no remedy according to the old forms or rules. Wall- worth V. Holt, 4 Mylne & Craig, 635. The principle upon which the courts proceed is, that the com- mon law does not mould the habits, the manners, and the trans- actions of mankind to inflexible rules, but adapts itself to the business and the circumstances of the times, and keeps pace with the improvements of the age. Lyle v. Richards, 9 Serg. & Rawle, 351. Our system of common-law rules and of equitable principles consists of the accumulations of several centuries, as is entirely evident, when it is remembered that so much of our law is derived from that of England. So extensive, so complicated, so useful, and so practical a system could not be the work of one man, nor of one nation, nor even of one age. Its vast collection of adjudged cases is the growth of centuries; and, from a comparatively small number of decisions in the early times, the number haa constantly increased, and the system of jurisprudence has ex- panded from time to time as the constantly recurring demanda of men have presented questions to the tribunals for decision, until the result has been the establishment of a system of legal and equitable jurisprudence which is adequate to the demands oi the necessities of a great commercial nation. In the construction of this system, the courts were constantly in the habit of applying to new combinations of circumstancea 5 OF RIGHTS, REMEDIES AND ACTIONS. those rules of law which were to be found in judicial precedents, or in works treating of legal principles ; and for the sake of attaining uniformity, consistency, and certainty, those rules or principles, unless clearly unreasonable, or inconsistent, were applied in all cases as they arose. But, notwithstanding the great number and variety of decisions, there always have been, and there are now, cases constantly occurring which are new in principle, or of first impression. So, too, there are cases, which, though not new in principle, yet present questions which have never been determined. In all such cases, the courts avail themselves of the vast collections of principles which have been settled as law, and then from the analogies of the law, and the reason and justice of the case, they decide in such manner as will best subserve the rights of the parties, and the public inter- ests, if such decision should be followed as a precedent. Where the common law does not give a right of action for a tort, the court cannot supply the defect and furnish a remedy. Osborn v. Qillett, L. R., 8 Exch. 88, 97 ; 42 L. J. Exch. 63 ; 21 W. R. 409 ; 28 L. T. (N. S.) 197. In addition to the decisions of the courts, the legislature has enacted a vast system of statute law, in relation to rights and remedies. It is from this extensive system of legal and equitable jurisprudence, and from the various statutes of the States, that a knowledge of the practice of the courts is to be obtained. And while engaged in the study of that practice, it will be constantly borne in mind, that many of its rules are statutory enactments, instead of being principles established by the decisions of the courts. Yet, whenever the statute has not provided a rule, the courts are at liberty to resort to the decisions, for materials to supply the defect. In the creation or establishment of laws, it is the province of the legislature to determine what is best for the public good, and to provide for it by proper enactments. The province of the judge is to expound the law, instead of making it. The written law he is to ascertain from the statutes ; and the unwritten law he is to find in the decisions of his predecessors, and of the exist- ing courts, or from the text- writers of acknowledged authority, and upon the principles which are clearly to be deduced from them by sound reason and just inference. The distinction between legal and equitable rights will continue to exist, although B statute abolishes the distinction between actions at law and suits OF RIGHTS, REMEDIES AND ACTIONS. 9, in equity so far as the forms of procedure are concerned. MattJieios v. McPherson, 65 N. C. 189. Although a code abolishes all forms of action, the principles by which the different forms of action were previously governed will still remain, and will control in determining the rights of the parties to an action. Eldridge v. Adams, .54 Barb. 417 ; HuhbeP V. Sibley, 50 N. Y. (5 Sick.) 468, 472 ; Paul v. Parshall, 14 Abb. (N. S.) 138, 142 ; Bunphp v. Kleinsmm, 11 Wall. (U. S.) 510. § 2. Nature and definition of actions. Whenever a person believes that he is about to be injured by the act of another, or when he feels that an injury has already been done, he will naturally adopt the most effective means of preventing or remov- ing the injury, or of redressing the wrong committed ; and on the other hand, the party against whom the claim is made w^ill desire to know whether he can successfully resist the demand, and by what means ; and, for these purposes, each party, whether complainant or defendant, must, with or without the aid of legal advisers, carefuU}^ consider the law affecting the asserted right, and the nature of the injury or offense, and the remedies or punishments, before any steps can properly be taken, whether precautionar}', offensive or defensive, or the result may be a serious error by which he may become a wrong-doer, or may lose all means of redress, or may waive a good defense in conse- quence of his injudicious proceedings or omissions. The general nature of an action is thus explained by an elegant writer on the laws and constitution of England : "A person (let us suppose) who has a cause of action, either in a right detained, or an injury done, is determined to bring his action ; and, by his attorney, takes out process against the party complained of ; in consequence of which the party complained of (whom we call the defendant), either puts in common or special hail, as the case requires. The defendant being thus secured, the plaintiff declares, in proper form, the nature of his case. The defendant answers this declaration ; and the charge and defense, by due course of pleading, are brouglit to one or more plain simple facts. These facts, arising out of the pleadings, and thence called issues, come next to be tried by a jury. The jury having heard the evidence upon the issue before them find (we will suppose) a verdict for the plaintiff. On that verdict, ^^ judgment is afterward entered. The plaintiff's costs of suit are then taxed, by the officer of the court, and the judgment is put in execution, by levying on the defend ant's effects the damages given by the jury, and the costs allowed Vol. L — 2 10 OF RIGHTS, REMEDIES AND ACTIONS. by the court ; which being done, there is an end of the suit, and both parties are once more out of court." The explanation just given relates to an action at law, and in some respects it differs from a description of a suit in equity, yet it serves to point out the essential features of all civil actions. The most general division of actions is usually that of civil and criminal, but since the latter kind of action does not come within the scope of this work, no notice will be taken of that subject. See Code, §§ 4, 5, 7-. Civil actions have heretofore been divided into legal, and equitable; the former being such as are cognizable by courts of law, and the latter such as are peculiar to the -jurisdiction. of courts of equity. In this State (N. Y.), there are no separate courts of law and of equity, and all remedies, legal or equitable, are administered by the same courts or judges, according to the circumstances of the particular case, although the mode of pro- cedure may differ according to the relief or remedy desired. • - A civil action is a legal prosecution, in an appropriate court, by a party complainant, against a party defendant, to obtain the judgment of that court in relation to some right claimed to be secured, or some remedy claimed to be given, by law, to the party complaining. In every civil action, legally prosecuted, there must be a court having jurisdiction, or it will not be an appropriate court; there must be a party complaining, who brings the action before that court ; there must be a party who is charged with doing or omitting to do something, for which he is brought into court; and there must be a subject-matter of liti- gation; and, upon the whole case, the rights of the parties are to be determined by a decision or judgment of the court. See also the cases cited in 2 Wait's Law and Pract. 40; Wait's Code, § 2. A civil action is one prosecuted for the establishment or recov- ery of a right, or the prevention of a wrong, or tiie redress of an injury. It may be instituted by governments, corporations or individuals, to enforce any remedy, or to obtain or secure any relief which the law gives to a complainant against a defendant. The term "action" includes all the proceedings from its com- mencement to its termination ; and, therefore, the proceeding ia called an action until the rendition of the decision, decree or judgment; but it is not so called after that time. A distinction is sometimes made by applying the term " action " to proceedings at law, and "suit" to those in equity; and the familiar expression is, " an action at law," or, "a suit in equity." OF RIGHTS, REMEDIES AND ACTIONS. 11 Didier v. Damson, 10 Paige, 515; S. C, 2 N. Y. Leg. Obs. 420; People ex rel. Sanders v. QoTborne, 20 How. 378, 381, 382. At the common law an action for the recovery of land, with- out damages, was called a real action. An action for the recovery of some specific personal prop- erty, wrongfully withheld by the defendant from the plaintiff, or f :)r a compensation in money for an injury sustained, which compensation is technically called damages, was called a per- sonal action. An action for the recovery of real estate and damages for its illegal detention was called a mixed action. At common'law, an action ex contractu is one which arises on contract, and is brought for the recovery of damages, or of a thing which belongs to the plaintiff. These actions were account, annuity, assumpsit, covenant, debt, and detinue. A persona] action, ex delicto, was for the redress of a wrong uiiconnected with contract, and the actions were case, trover, re- plevin and trespass. A local action is one which must be brought in some particu- lar locality, whether that place be fixed by common law or by statute. A transitory action is one which may be brought in any county which the plaintiff may prefer. An action in personam is one in which the proceedings are against the person in contradistinction to those against specific things or in rem. An action in rem is one instituted against the thing in contradistinction to personal actions, which are said to be in personam. In this brief explanation of the nature of actions, the discus- sion has been limited to such matters as pertain to the practice, as distinguished from a study of the general rules of law, or the principles of equity. It must not, however, be supposed, that this omission rests upon the ground that the latter study is not deemed important. On the other hand, let the student at all times remember that his only hope of eminent success in his pro- fession must be founded upon the possession of a profound, ao accurate, and an available knowledge of all the general rules oi the common law, and of the principles of equity. 12 OF RIGHTS, REMEDIES AND ACTIONS. TITLE III. OF SOME OF THE PRINCIPAL DISTINCTIONS BETWEEN LEGAL ACTIONS AND EQUITABLE SUITS. ARTICLE I. OF LEGAL ACTIONS. Section 1. In general. Legal rules and principles must be ex- pressed in general terms, and, therefore, it must sometimes hap- pen that there are cases within the words but not within the rea- son or the spirit of the rule; while there are other cases within the meaning, but not within the words of it. The reason of this is evident on the slightest examination, since it will readily be conceded that it is impossible for any one to foresee or provide for the endless series of complicated occurrences which must take place in society. And, whenever a case occurs which does not fall within the provisions of the general rules, there is a de- fect to be supplied, or injustice must result from that cause. In many of these cases, courts of equity have devised and applied such rules as a reasonable and just man would have provided had he foreseen the circumstances of the case, and had he authority to establish a rule for it. In some cases the legislature have enacted laws designed to provide remedies or rules in which the common law was found to be deficient. The remedies afforded by the common-law courts are limited by the rules of the common law, which, as a general thing, are fixed and unbending; and one of the settled maxims of that system is, that a decided point furnishes the rule for future similar cases. In addition to this, the character of the process, plead- ings, mode of trial, and the judgment all tend to reduce the application of remedial justice to the enforcement of these fixed rules, instead of attempting to investigate the complicated equi- ties which exist in so many cases, and in which no adequate relief is to be obtained except through equitable interference. From this general statement it will be seen that one of the dis- tinguishing features of common-law remedies is, that they are usually unattainable except by the application of fixed, distinct rules, through the aid of a court, which seeks to apply and en- - force these general rules to all cases, instead of investigating and OF RIGHTS, REMEDIES AND ACTIONS. Id securing any peculiar equities which may exist in some partic- ,ular case or class of cases. This system, which may seem harsh in some of its aspects, has, nevertheless, one very valuable feature, and that is, it is admir- ably adapted to the important end of securing certainty and uniformity in the administration of the law, a result which is invaluable to a commercial people. § 2. Legal actions relate to some act done or omitted. It is the object of the law to give a remedy in every case which justly requires it. For this purpose the whole body of the law was created ; and every important right is so guarded by familiar and public laws that each person may know what those rights are, and what remedy is afforded for an invasion of them. Every person is bound to know the general rules of the law or to sub- mit to the consequences resulting from his ignorance, or his infringement of them. He who wrongfully invades the posses- sion of his neighbor must respond in damages corresponding to the injury done. So he who inexcusably breaks a valid contract must make good the loss which the other party sustains in con- sequence. In these cases, it wdll be observed, the law does not interfeie until after the wrongful act has been committed, and it thee holds the wrong-doer accountable for the damages resulting from his acts. The whole remedy consists in compensation to the injured party by way of damages assessed against the party in the wrong. The coercive power of the law is limited in its in- fluence upon the parties, by declaring tha,t every violator of its principles must respond in such damages as may be legally assessed against him, and enforced against his property or his person. It is by virtue of this system that most wrongful acts are prevented, and most contracts are performed, for the remedy by way of damages is a most effective one when properly admin- istered. Beyond this species of remedy, the common law does not, as a general rule, extend ; and, where a party would prevent the commission of a wrong, or would compel the specific perform- ance of a contract, by means of the process of the courts, he must resort to a court of equity, where such remedies are one of the peculiar features of the system. In some peculiar cas'^s, a resort to a court of equity is to be preferred, because no damages probably attainable would be as valuable as the equitable relief which is certain, if sought. But, as a general rule, the courts oi law are adequate to all the emergencies of the case, and they 14 OF EIGHTS, REMEDIES AND ACTIONS. enforce most of the remedies wliich parties seek through the in ■ terposition of the courts. § 3. Compensation in damages, or not at all. As has just been seen, the law gives damages for past injuries. But, beyond this relief, a common-law court does not go, for it will not interfere to prevent the violation of a right. It will give damages for the breach of a contract, but a court of equity will do more, it will anticipate the event, and restrain a person who merely shows an intention to break his agreement. It is in those cases in which the damages for past acts would be so small as not to afford an adequate remedy, that the powers of a court of equity are inval- uable. In one of these classes of cases the relief obtained is remedial, in the other it is preventive, or, in other words, in one case it is legal, in the other equitable. Where these courts are separate, it is a general rule that neither court will usurp the functions of the other. And, therefore, if the injury complained of be completed, so that compensation alone can be awarded, a court of equity will not interfere, even though it might, in its discretion, have power to do so. So, on the other hand, a court of law will not entertain an ap- plication where no breach of contract has occurred, or no wrong- ful act has been done, even though it has power to issue an injunction under some circumstances. In those States in which legal and equitable remedies are enforced by the same court, some of these distinctions may seem to be of no importance, and yet it is to be remembered that the mode of proceeding which is to be adopted must be legal or equitable as the case may require, as will be fully explained else- where. § 4. Affords no relief outside of the general rules. At common law, simplicity and certainty in the practice is a prominent object, and while the rules are so general as to be readily applied to the facts of each particular case, yet they cannot be so extended oi varied as to meet the requirements of a system so complicated as some of the remedies afforded by a court of equity. And it is, therefore, a general rule, that the common-law courts do not iifford any relief outside of its general system of legal remedies, ir other relief is sought, a different court must furnish it, or the party may be remediless. At common law, the judgments are uniform, simple and invari- able, according to the nature of the action. In equity, the relief is modified to suit all the exigencies of the case fully and cir- OF EIGHTS, REMEDIES AND ACTIONS. 15 cumstantially ; authoritative and binding declarations are made concerning the rights alleged ; specific things are directed to be mutually done or permitted ; and the conduct to be observed by the numerous parties is pointed out, although such parties may sustain relations of widely different characters, or be influenced by interests of a conflicting or important nature. § 5. Do not compel specific performance of contracts. This subject has already been alluded to, but it is important that the student should understand the nature and the extent of the powers of courts of law, and of equity, if he would act intelli- gently in the pursuit of remedies. There is no class of cases, perhaps, in which the want of power in a common-law court is more seriously felt, than in this one relating to the performance of contracts. In many cases, such a performance in good faith, is of the utmost importance to the party who asks that it be carried out. His plans and other con- tracts may have been based upon its due execution, and his lia- bilities to others, as well as other consequent losses, may be such that no damages which would be given would make good. There are some instances, in which the contract relates to the personal conduct of a party, which no court will undertake to require to be literally performed, as a contract to sing at a theater, or write a book, or keep an inn, or build a house, for the reason that no degree of compulsion which the court could exer- cise would secure the desired result. But if the contract contains a negative clause, such as an agreement not to sing at any other theater, or not to write books for others, or the like, there a court of equity will interfere by restraining the party from violating the negative clause. See "Injunction." But in all such cases a court of law would be powerless except to give damages for the breach of the contract. The student will recollect that these remarks treat the matter as though there were separate courts of law and equity, instead of a single court which exercises the powers of both those courts. § 6. Do not prevent the commission of wrongs. For injuries to real estate, the common-law actions of trespass, waste, nuisance, and the like, are the remedies usuall}^ sought. But, where the injury, if once done, would be irreparable, courts of equity sometimes interfere to ])revent the commission of the wrongful act, and this i eiief a court of common law cannot grant. Any exception to this rule will be found to have a statutory origin. 16 OF RIGHTS, REMEDIES AND ACTIONS. § 7. Not adapted to complicated equitable cases. It is the tend ency of any system of mere legal principles, when reduced to a practical application, to fail of effecting such justice between party and party as the special circumstances of a case may require, by reason of the minuteness and inflexibility of its rules and the inability of the judges to adapt its remedies to the necessities of the controversy under consideration. And it is accordingly found, that the rules of the common law, when reduced to prac- tice, sometimes become the means of injustice in cases in which special equitable circumstances exist, which the court cannot take cognizance of because of the precise nature of common-law principles, their inflexible character, and the technical rules ot pleadings and practice which were designed for no remedies ex- cept such as the common law afforded. To remedy these incon- veniences, and to prevent injustice, the flexible, convenient and just system of equitable remedies was devised, until there are at the present time, but few, if any, cases, in which the courts will not furnish all proper relief, in some form, if applied for in due time and in a proper manner. § 8. Powers of the court terminate with the judgment, and its enforcement. At common law, a final judgment, when once entered, exhausts the powers of the court, except in the way of proceedings to review or reverse it. There is no power to open the judgment for the mere purpose of rendering a different judg- ment upon the same facts, or for the incorporation of facts not noticed upon the rendition of the judgment. If the judgment was regular and legal upon the facts established, the judgment is final and conclusive. If it was irregular, the remedy is by way of proceedings to set it aside ; if illegal, to obtain its reversal. An action will not lie at common law for the purpose of obtaining some relief or remedy to which the party was entitled, but which he neglected to present before the rendition of the previous judg- ment. Courts of equity exercise much greater powers for the purpose of modifying their decrees, or for their impeachment when they are not such as justice and equity would sustain. § 9. Extension of remedies by common law. The extension of remedies by the common law is not by devising new rules or principles, but by the application of existing rules to new combina- tions of facts, or to new cases which ought to be included in the settled rule. And, in the multiplicity of reported cases, it is a surprising fact that so many of them turned upon the question OF RIGHTS, REMEDIES AND ACTIO JNS. 17 whether the conceded rule had been properly applied in the par- ticular case, instead of the point whether there was such a rule as that claimed to be law. Courts of law do not usually claim or exercise the power of devising or creating new principles of law, but limit themselves to the administration or application of such principles as are recognized as the law of the land. And yet, such is the extent, variety and complication of human affairs that require to be settled by the courts, that it will be found that the simplest rule has been applied in a great number of cases which differ widely in the facts of each case; and it may seem in some instances as though a new rule had been adopted and enforced in some of them. Courts of common law, in a great variety of cases, adopt the most enlarged and liberal principles of decision; and, indeed, often proceed, as far as the nature of the rights and remedies, which they are called upon to administer, will permit, upon the same doctrines as courts of equity. Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R., 9 Exch. 222, 223; S. C, 10 Eng. Rep. 395, 396. This is especially true, in re- gard to cases involving the application of the law of nations, and of commercial and maritime law and usages, and even of foreign municipal law. 1 Story's Eq. Jur., § 34. In matters of mere practice the common-law co.urts possess and exercise greater powers in the adoption of ordinary rules of practice than in any other respect; and practice, it must be remembered, is but the application of those remedies which the law provides by its general rules. § 10. Exceptions to general legal rules. When a rule of law has become well settled, the courts cannot properly disregard it. And in the application of this principle, it occasionally happens that a general rule, if strictly enforced, would be productive of hardship or injustice in some classes of cases. But it is to be remembered that an inconvenient or unjust rule of law may be remedied by the legislature ; and, until that is done, it is best, as a general rule, to abide by the adjudged cases ; for an attempt to change the rule by a judicial decision tends to unsettle the law; and it has been said that "Hard cases make bad law." Broom' s Leg. Max. 150, and cases there cited. Hard cases are not permitted to make bad equity any more than bad law. Moore v. Pierson, 6 Iowa, 279. And the general practice is, to apply and enforce well-settled rules, even when they cause a hardship in some particular case. Vermilya v. Austin. 2 E. D. Smith, 208 ; Beaulieu v. Finglam, cited in argument in Reedie v. London and Vol. I.— 3 18 OF RIGHTS, REMEDIES AND ACTIONS. North Western R. R. Co., 4 Exch. 251 ; Freeman v, Tranoh, 14 Eng. Law and Eq. 224, 227 ; 12 C. B. 406 ; Supervisors of Onon- daga V. Briggs, 2 Denio, 32. There are instances, however, in which a subsequent case may resemble a former one in many of its principal facts, and yet it VL\2ij also contain some important facts or elements which will bear upon the decision, and, when this is the case, courts frequent- ly act upon the principle of distinguishing the latter case from the former ; and by that means are enabled to render such a decision as the justice of the case may require. Quinn v. Lloyd, 41 N. Y. (2 Hand) 353. But, while it is proper to act Upon a substantial distinction, the courts cannot properly carry the rule so far as to act upon unsubstantial and shadowy distinctions which do not affect the merits of the case. Such distinctions have properly been termed by the courts nice, subtle, refined, thin, slight or slender, and they have frequently refused to act upon them," arid yet, if the courts adopt or make a distinction, the decision is to be followed like any other established rule. It is not desirable to multiply distinctions, as they cannot fail to introduce uncertainty into the law, and in their subsequent appli- cations to other cases may cause as much hardship as would have resulted from enforcement of the general rule. There are those who delight to "split the weight of things on the hair- breadth of words." See Jackson v. Waldron, 13 Wend. 207 ; per Tracy, senator. Distinctions in the decision of causes are not always founded upon the principle that the court does not approve of the rule laid down in the previous case ; for such decision may be fully concurred in, and yet the facts of the subsequent case may be so different in some particulars as to require the decision to be founded upon or modified by them. § 11. Tries questions of fact by a jury. In common-law actions the right of having questions of fact tried and settled by the verdict of a jury is as much fixed, as are the rights of the parties clear under the rules of the law. To explain the origin of this mode of trial, or to trace its his- tory, or explain its advantages, is not the present object ; but rather to point out the distinction between this method of trial and that adopted in courts of equity which, as a general rule, dispense with the aid of juries, and try questions of fact before the court itself, upon such evidence as may be proper. And when the nature of the two systems of remedies is considered, OF RIGHTS, REMEDIES AIS-D ACTiOI^S. 19 the propriety of the practice in each case will be evident. In simple direct issues, the verdict of a jury would be convenient, safe, and satisfactory. But, in a case involving numerous issues, of an intricate nature, requiring many different special directions, snch a trial would be a poor substitute for the careful, elaborate and equitable relief which may be awarded by a profound and conscientious judge who takes time to survey the whole case even to its minutest details, and then pronounces a decree which guards all the rights of both parties. A trial by a referee is not overlooked, but as it is a mere substitute for a trial by jury, it does not require notice in this place. § 12. Legal remedies may exist, and yet be insuiiicient. There are many cases in which the common-law courts furnish a par- tial though defective remedy, while courts of equity afford the fullest relief. To explain fully the particulars in which such relief may or may not be had at law, or to enumerate all the instances in which partial relief is attainable, is not to be expected in this place. A general synopsis of some of the cases will be convenient as an illustration of the defects mentioned. At common law a corporation might have a good cause of action against one of its members, and yet, at law, no action ^could be brought upon it, while equity would give full relief. The same rule applies to the case of executors or partners. Cole V. Reynolds, 18 N. Y. (4 Smith) 74 ; Gridley v. Gridley, 24 id. (10 Smith) 135, 136. See Denman v. Prince, 40 Barb. 213, 217, 218, 219 ; Kingsland v. Braisted, 2 Lans. 17, 20 ; Waller v. Tliomas, 42 How. 337 ; 4 Daly, 551. So in replevin, if the property claimed could not be described with the requisite certainty, a court of equity alone could give the desired aid. An action of account is a common-law remedy, but if the taking of an account is important, the powers of a court of equity are far more desirable than the common-law action. See Account. A set-off could not be made available at common law, but for a long time past this defect has been remedied by the statute. Before these statutes, a court of equity alone was the proDer forum to resort to in such cases. See Set-off. An action for the recovery of dower is given by the common law, but there were superior advantages for the widow if she applied to a court of equity, in her comparatively helpless con- dition, and for the advantage of being better able to ascertain in what estates she had a right of dower. The same principles were applicable to cases in Dartition, or in setting out bounda- 20 OF RIGHTS, REMEDIES AND ACTIONS. ries. These, and other similar cases which might be mentioned, seem to show that many remedies are common to both courts of law and of equity, and that each court has some advantages over the other in the administration o-f the law ; and if this outline shall serve to render the subject more clear to the student, the object in view will have been attained. TITLE IV. OF EQUITABLE SUITS. ARTICLE I. GE]S"EEAL PKINCIPLES. Section 1. Courts of equity act on the person independently of damages as a remedy. There is no feature of relief or remedy, afforded by the courts, of a higher value than that of acting directly upon the person of the party who would deliberately violate his contracts, or invade the possessions of another. The relief given by a court of equity may be described as of a posi- tive character, giving the specific thing which the parties artv entitled to, while actions at law, with few exceptions, give only the negative remedy of compensation by damages for a depriva- tion or violation of the true right. 3 Broom & Had. 65, 66 ; id. vol. 2, 67, 68, Wait' s ed., top page. Wherever possible, equity takes care that a right shall be actually enjoyed, and, with this view, will interfere to prevent a violation of that right. A court of law will not interfere till the violation be effected. It, for instance, will, when a breach of covenant in a lease or in a contract between land owners has been committed, give damages for the breach ; but a court of equity will do more, it will anticipate the event, and restrain a person who merely shows an intention to break his covenants. Or, to take another example illustrating the beneficial result obtained by such ready interference, damages will be given in the one court if a man has been carrying on a trade in some particular locality in violation of his contract with another man not to do so. But these damages, which will be only given for past acts of trading, are, it may be, of small value as a remedy compared with the effectual relief which the other court gives by prohibiting the trade on pain of imprisonment. lb. The two OF RIGHTS, REMEDIES AND ACTIONS 21 feinds of justice which may be obtained, the one strictly re- medial, the other preventive, in respect of the violation of con- tinuing rights, are clearly different in kind ; one is legal, the other equitable; and neither of the two courts will usurp the functions of the other. lb. A clear illustration of the advantages of an equitable remedy over that aftbrded by a common-law court may be seen in the case of compelling a party to convey lands which are situated in another State. Gardner v. Ogden, 22 N. Y. (8 Smith) 327: Fen- ner v. Sanborn, 37 Barb. 610; Bailey v. Ryder, 10 N. Y. (6 Seld.) 863; Newton v. Bronson, 13 id. (3 Kern.) 587. And yet a com- mon-law action will not lie here for a trespass upon real estate lying in that State. Watts v. Kinney, 6 Hill. 82; Hurd v. Mil- iar, 2 Hilt. 540; MoU v. Coddington, 1 Abb. (N. S.) 290, 1 Rob. 267; Wait's Code, 24, 25, 26. In such case the court has no jurisdiction, unless the person to whom its orders or decrees are addressed is within the reach of the court or amenable to its jurisdiction. The person must be not only within the reach of the court as to locality, but he must have such a character as shall render him personally amenable to the jurisdiction. The fact that the orders and decrees of the court operate im- mediately upon persons has had the effect of giving the court a very extensive jurisdiction. As a consequence of this rule, the court may exercise jurisdiction quite independently of the local- ity of the act to be done, provided the person against whom re- lief is sought is within the reach and amenable to the process of the court. In exercising the jurisdiction, the court does not lay any claim to the exercise of judicial or administrative rights in a foreign country, but proceeds solely on the circumstance that the person to whom the order or decree is addressed is within reach of the court. § 2. Equity compels the performance of acts speciflcally. An- other branch of the same kind of positive relief is the power which the court exercises of compelling the specific performance of agreements. A man may be indirectly compelled to carry out his contract by the fear of being mulcted in damages by a coartof law, in the event of his failing to do so; but another and often a desirable mode, is to insist upon his performing the duty which he owes under the contract by putting him in prison till he does so. 3 Broom & Had. 67 ; id. 69, vol. 2, Wait's ed , lop page. See the next preceding section. 22 OF RIGHTS, REMEDIES AND ACTIONS. Rights which are recognized and protected, and wrongs which are redressed by common -law courts, are called legal rights and legal injuries; rights which are recognized and protected, and wrongs which are redressed by courts of equity, are called equi- table rights and equitable injuries. The former are said to be rights and wrongs at common law, and the remedies, therefore, are remedies at common law; the latter are said to be rights and wrongs in equity, and the remedies, therefore, are remedies in equity. The distinction between courts of common law and courts of equity will be better understood by considering the different natures of the rights they are designed to recognize and protect, the different natures of the remedies which they apply and the different natures of the forms and modes of proceeding which they adopt to accomplish their respective ends. In all strictly common-law courts, there are certain prescribed forms of action to which the party must resort to furnish him a remedy; and, if there be no prescribed form to reach such a case he is remediless; for these courts do not entertain jurisdiction except in certain actions, and they give relief according to the particular exigency of such actions, and not otherwise. In those actions none but a 'general and unqualified judgment can be given, which is either for the plaintiff or for the defendant, with- out any adaptation of it to particular circumstances. There are, however, many cases in which a simple judgment for either party, without qualifications, or conditions, or pecu- liar arrangements, will not do entire justice to either party. Some modifications of the rights of both parties may be required; some restraints on the one side or on the other, or, perhaps, on both sides ; some adjustments involving reciprocal obligations, or duties ; some compensatory or preliminary, or concurrent pro- ceedings to fix, control or equalize rights; some qualifications or conditions, present or future, temporary or permanent, to be annexed to the exercise of rights, or the redress of injuries. In all these cases, courts of common law cannot give the de- sired relief. They have no forms of remedy adapted to the objects. They can entertain suits only in a prescribed form, and they can give a general judgment only in the prescribed form. Hence by their very character and organization the}^ are incapa- ble of furnishing the remedy which the mutual rights and rela tive situations of the parties, uuder the circumstances, positively require. OF RIGHTS, REMEDIES AND ACTIONS. 23 But courts of equity are not so restrained; although they have prescribed forms of proceeding, the latter are flexible, and may be suited to the difierent postures of cases. They may adjust their decrees so as to meet most, if not aJl, of these exigencies; and they may vary, qualify, restrain, and model the remedy, so as to suit it to mutual and adverse claims, controlling equities and the real and substantial rights of all the parties. Nay, more ; they can bring before them all parties interested in the subject-matter, and adjust the rights of all, however numerous, whereas, courts of common law are compelled to limit their in- quiry to the very parties in the litigation before them, although other persons may have the deepest interest in the event of the suit. So that one of the most striking and distinctive features of courts of equity is, that they can adapt their decrees to all the varieties of circumstances which may arise, and adjust them to all the peculiar rights of all the parties in interest; whereas, courts of common law are bound down to a fixed and invariable form of judgment in general terms, altogether absolute, for the plaintitf, or for the defendant. § 3. Equity restrains the commission of wrongful acts. Courts of equity possess a power of restraining the person in relation to particular acts, which is not only a usef'ii] but most efficient remedy. The principle upon which the court acts is, that whenever damage is caused or threatened to property, admitted or legally adjudged to belong to the plaintiff", by an act of the defendant, admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at law, the inadequacy of the remedy at law is a sufficient equity, and will warrant an injunction against the commission or continu ance of the wrong. And though damages cannot be given in equity for the plaintiff"' s loss, yet, in some cases, if the defend- ant has has made a profit, he will be decreed to account. Adams' Eq. 207. See ante, 20, art. 1. The equity is not confined in principle to any particular acts; those in respect of which it is most commonly enforced are five in number, viz.: waste, destruction, trespass, nuisance, infring- ment of patent right, and infringment of copyright. There are three incidents connected with this equity which ought to be mentioned. The equity attaches only on an admit- ted or legally adjudged right in the plaintiff", admitted or legally adjudged to be infringed by the defendant; it prohibits the con« *M OF RIGHTS, REMEDIES AND ACTIONS. tirmance as well as the commission of a wrong; and it extends to an account of the defendant's profit. Adams' Eq. 217. The relief afforded in equity is either remedial or preventive. The court either grants positive and affirmative relief, or restrains the doing of acts which are against equity and conscience. In giving remedial relief, the court usually proceeds by decree, while preventive relief is administered by injunction. § 4. Equity generally acts without the aid of a jury. The right to trial by jury in common-law actions, as a matter of course and of right, does not exist in courts of equity. It is one of the fun- damental rules of equity practice, that questions of fact are to be decided b}' the court without the intervention of a jury. And from the nature of the issues to be tried, and the peculiar equities to be administered, this mode of trial is an advantageous one. In disposing of causes, a court of equity does not always render a final decision at once, as upon the trial of a cause by a jury ; for, there may be numerous issues or facts to be investigated, before a final decree can be properly made. If a preliminary decree is proper, it is usually in such cases as the following : 1. That in the course of the suit a dispute has arisen on a matter of law, which the court is unwilling to decide ; 2. That a similar dis- pute has arisen on a matter of fact ; 3. Tliat the equity claimed is founded on an alleged legal right, the decision of which the court of chancery declines to assume ; and, 4. That there are matters to be investigated which, although within the province of the court, are such as the presiding judge cannot at the hear- ing effectually deal with. Adams' Eq. 375. To obviate these impediments the preliminary decree directs : 1. A case for a court of law; 2. An issue for a jury ; 3. An action at law, to be determined in the ordinary course ; or, 4. L reference to one of the masters of the court, to acquire and impart to it the neces- sary information. lb. Each of these methods of inquiry may be also adopted on interlocutory applications by motion or petition. lb. § 5. Relief is granted or refused by courts of equity, as justice requires. The principles upon which the jurisdiction of courts of equity proceed are these, conscience, good faith, honesty and equity. And, in the exercise of its powers, one general maxim in early times was, that chancery would take cognizance of such cases only as were not remediable by the common law. But this jurisdiction was not merely suppletor}'', it was also corrective. In some cases it gave relief where none could be had at law ; and. OF RIGHTS, REMEDIES AND ACTIONS. 25 m other cases it interfered to relieve against proceedings taken in courts of common law. In equity, tlie term conscience originally embraced those obli- gations which result when one person is placed in any situation as regards another, that gives the one a right to expect, on the part of the other, the exercise of good faith toward him. The determination of cases according to equity, embraced all those instances in which a party, who has not committed any act con- trary to good faith or conscience, but who may yet, according to the strict rules of positive law (which may, in their general appli- cation, be founded on natural justice), or by the silence of the law in not providing at all for some particular case, have an advantage which it is contrary to the principles of equity that he should enforce or retain. In such cases, a resort was had to the general principles of equity, in the sense of natural justice, which are antecedent to all positive law. In proceedings thus founded upon right, justice and conscience, the court took cog- nizance of cases in which there was no remedy at law ; and it might also decline to interfere when the claim made was such that a court of equity could not, according to its principles, enforce it ; and, as a result of this system, the court could in many cases grant or refuse the relief sought, according as justice might dictate. But a court of equity will not in any case allow itself to be made an instrument of injustice. And where a court of equity by its interposition to prevent an act rightfully or wrongfully intended, has caused the loss of a remedy at law, this court will give him a remedy equivalent to that from which the interposi- tion of the court debarred him. PuUeney v. Warren, 6 Ves. 73 ; Brown v. Newall, 2 M. & C. 558, 672. § 6. Grants relief where the law does not. , Courts of equity proceed upon the principle that they will grant relief in those cases in which it ought to be granted according to equity, but where no remedy is given by the common law. This omission may arise in those cases in which the rules of the common law have made no provision for a case like the one presented for adjudication; or it may be that the rules of practice of the courts of law do not meet the requirements of the particular case, and thus fail to give anj'- remedy, or a very inadequate one. The remedial process, the pleadings and practice of courts of equity, are all so framed that the party may obtain every relief consistent with equitable principles. And the final remedial pro- VOL. I.— 4 26 OF RIGHTS, REMEDIES AND ACTIONS. cess may be so varied as to meet the requirements of these equi- ties, in those cases in which the jurisdiction of the court exists, by commanding what is right, and forbidding what is wrong, and then enforcing the decree made. A court of equity has jurisdic- tion in cases of rights, recognized and protected by the muni- cipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law. The remedy must be plain ; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate ; for if at law it falls short of what the party is entitled to, that founds a juris- diction in equity. And it must be complete ; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a per- fect manner, at the present time, and in future ; otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a court of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law ; it is sometimes exclusive of it ; and it is some- times auxiliary to it. § 7. Equity is governed by settled rules and principles. Courts of equity had their origin in the wants of suitors who failed to obtain a remedy through the aid of common-law courts. And, in many instances, equity gave proper relief when the law courts had no means of affording the desired and needed remedy. In the contests between the courts of law and those of equity, at an early period, it was sometimes said that the latter courts were not governed by settled rules, but acted upon an arbitrary dis- cretionary power. But, waiving that question, it is sufficient to state, that for a long period the powers of these courts, and the rules and principles upon which they proceed, are as well set- tled as those of the common-law courts. The object of a court of equity was to afford relief in those cases in which no legal relief was attainable. But it has also been said that it was the business of a court of equity to abate the rigor of the common law; and, while it maybe conceded that, in some cases, the interference of a court of equity has had this effect, yet all the rules of the common law which equity has taken upon itself to overrule have long since been well defined, and many of them have ceased, even at common law, to govern the judgments of the courts. 3 Broom & Had. 54; id. vol. 2, p. 58, Wait's ed. The educational course, which courts of equity seem to have furnished to courts of law, has been long so far OF RIGHTS, REMEDIES AND ACTIONS. 27 completed, that no new doctrines in equity opposed to the rules or doctrines of courts of law have been established. lb. 55. Nor does equity, even now, profess to criticise or review decisions of courts of law; moreover, it does not, and never did, interfere to mitigate the severity, where any exists, of rules of positive law. There are, however, some of the early cases in which equity has rery nearl}^, if it has not absolutely, ' overridden positive law ; and those cases relating to the statute of frauds serve as well as any to show how far the power has been exercised. lb. 56. There are certain principles, on which courts of equity act, which are very well settled. The cases which occur are various, but they are decided on j&xed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of those principles ; but the principles are as fixed and certain as the principles on which the courts of common law proceed. Bond v. Hopkins^ 1 Sch. & Lefr. 428, 429. This application of existing principles to new cases as they arise is not peculiar to courts of equity ; for the common-law courts are daily engaged in adding to the principles of the old jurispru- dence, and in enlarging, illustrating and applying legal maxims and rules. § 8. Equity devises new remedies. The numerous cases in which equity interfered and granted relief where none was given before has given rise to the opinion that courts of equity devise new remedies. When it is said that equity grants relief, while at law the complaining party was remediless, it might seem like a new remedy ; and j^et, it will be remembered that such relief was in accordance with well-settled principles of equity. But, even if it were assumed that courts of equity did, at an early day, exercise the power mentioned, it must be remembered that this court is now as much controlled by general laws as any other court. And while it is proper that all courts should freely exer- cise their powers for the advancement of justice, it is the part of wisdom and of safety for all courts to keep clearly within the limits of their jurisdiction ; and, if additional powers are required, to leave that matter with the legislature. It is province of the statesman, not of the lawyer, to discuss, and of the legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound iii2 law only : the written, from the statutes ; the unwritten 28 OF RIGHTS, REMEDIES AND ACTIONS. law from the decisions of his predecessors, and of the existing courts, or from text writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference ; it is not, however, the duty of a judge to speculate upon what may be most, in his opinion, for the advan» tage of the community. Broom's Com. Law, 5, 6. See ante, 5, art. 1, § 1. Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R., 9 Exch. 222, 223; §§10, Eng. Rep. 394, 395. § 9. Mode of relief diifers more than principles of law. The law speaks but one language, for all courts, in reference to the legal rights of the parties involved in a litigation. But, in mat- ters of mere practice, there is a wide difference between courts of equity, and those of law, and, in many instances, it is the sole difference to be considered by the party seeking to have his rights determined by a court. § 10. General rules and maxims of equity. In actions at law, every party may stand upon his strict legal rights, and the court is bound to give the remedy which the law has provided. In courts of equity, there are some rules and maxims which seem more like the exercise of a discretionary power, as they doubtless are in some instances. First. If equity once had jurisdiction of the subject-matter because there is no remedy at law, or because that remedy is in- adequate, it does not lose the jurisdiction merely because the courts of law afterward give the same or a similar relief. Second. Equity follows the law. This is true as a general maxim. Equity follows the law, except in relation to those matters which give a title to equitable relief because the rules of law would operate to sanction fraud or injustice in the particular case. Third. Where there is equal equity the law must prevail. The ground upon which the suitor comes into a court of equity is that he is entitled to relief there. But, if his adversary has an equally equitable case, the complainant has no title to relief, and the court will not interfere on either side. Fourth. Equality is equity. This rule is applied to cases of contribution, apportionment of moneys due among those liable to, or benefited by the payment, or abatement of claims on account of deficiency of the means of payment, etc. Fifth. He who seeks equity must do equity. A party cannot claim the interposition of the court for relief unless he will do OF RIGHTS, REMEDIES AND ACTIONS. 2» what is equitable should be done by him as a condition prece- dent to that relief. Sixth. Equity considers as done that which ought to have been done. The illustration of this rule will be found in works upon equity. Seventh. He who has committed iniquity shall not have equity. As in cases of illegal contract, or where a party has put his property out of his hands to defraud his creditors, a court of equity will not restore the party to his former condition. Eighth. Equity suffers not a right without a remedy. This maxim is generally, though not universall}^, true. Ninth. When the equities are equal in other respects, he who is first in point of time will secure the advantage. But if the equities are unequal, preference will be given to the superior equity. Tenth. The fund which has received the benefit should make satisfaction. Again, satisfaction should be made to that fund which has sustained the loss. Eleventh. Equity acts upon the person. This maxim has beeu explained ante, 20, art. 1. Some of the principal distinctions between, legal actions and equitable suits having been thus briefiy noticed, our next inquiry will relate to the effect of the union of legal and equitable reme- dies which are now administered by the same courts in both classes of cases. TITLE V. THE UN^ION OF LEGAL AND OF EQUITABLE REMEDIES. ARTICLE I. GEJiTERAL PRIXCIPLES. Section 1. Mode of. uniting the two systems. Under the for mer English system, courts of law and courts of equity were separate and distinct organizations, each of which administered the rules of law, or the principles of equity, according to a long established practice. The general adoption of this system in many of the States of the Union is familiar to every student. In this State there were fu.Luerly courts of law, and also a court of chancery, both of 30 OF RIGHTS, REMEDIES AND ACTIONS. whicli had existed from an early period, and they continued to exist down to the year 1846. By the constitution of 1846, it was provided by article 6, sec- tion 3 : " There shall be a supreme court having general juris- diction in law and equity." In accordance with this provision, the legislature enacted a law, declaring that the Supreme Court, organized under this constitution, should have the same powers and exercise the same jurisdiction as that possessed and exer- cised by the Supreme Court or the Court of Chancery of this State. Laws 1847, ch. 280, § 16. By section 69 (62) of the Code, the distinction between actions at law, and suits in equity, and all the forms of such actions or suits were abolished; and but one form of civil action, for the enforcement or protection of private rights, or the redress of private wrongs, was recognized. The object of these changes was, to obviate many of the incon- veniences arising from a double system of practice, and also to simplify the proceedings in all the courts. The principles of the common law were generally plain, sim- ple, few in number, and unbending in many instances to suit the exigencies of the particular case to be decided. The result was sometimes inconvenient, if not unjust, and for this reason the court of chancery was established for the purpose of softening the rigor of the common law, and for doing complete justice by means of forms of proceeding peculiar to itself. But even this system of a double court, with separate forms of proceeding, did not prevent the existence of some inconveniences; and, for the purpose of securing all the advantages, and avoiding all the inconveniences of the former systems, the present system of blending law and equity practice was adopted in this State. § 2. Principles of law and equity unchanged. It will be re- membered that the matters under consideration relate to the practice of the courts, and not to the general rules of law, nor to the principles of equity, by which rights are to be decided, or wrongs redressed. The rules of law will remain unchanged, whether they are enforced by a court having nothing but a com- mon-law jurisdiction, or by a court of equity, or by a court ex- ercising both a legal and an equitable jurisdiction. " Although the Code has abolished all distinctions between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish OF RIGHTS, REMEDIES AND ACTIONS. 31 It is impossible to make an action for a direct aggression upon the plaintiffs rights by taking and disposing of his property, the same thing, in substance or in principle, as an action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a con- tingent 01 prospective interest. The mere formal differences between such actions are abolished. The substantial differences remain as before. The same proof, therefore, is required in each of these same kind of actions as before the Code, and the same rule of damages applies. Hence, in an action in which the plain- tiff establishes a right to recover, upon the ground that the defendant has wrongfully converted property, to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages still is the value of the property ; while in an action in which the plaintiff recovers, if at all, upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to another's property, a8 unnecessarily and improperly to reduce the value of a lien, which the plaintiff could only enforce at some subsequent day, the damages must, of course, depend upon the extent to which that lien has been impaired." Goidet v. Asseler, 22 N. Y, (8 Smith) 228, 229, Seldex, J. The union of the two systems of law and equity practice has not enlarged the powers of the new court, either as to legal or equitable jurisdiction ; in relation to the rights which they may declare ; or the remedies which they may enforce. And where an injunction could not have been granted under the former practice by the old court of chancery, it cannot now be granted by the new court, because the equitable jurisdiction of the courts is not enlarged by the union of legal and equitable powers in one court, nor by the provisions of the Code. JSfeio York Life Ins. Co. V. Supervisors of New York, 4 Duer, 192 ; 1 Abb. 250. An action of trover could not have been maintained nnder the former practice without proof of an unlawful detention or a con- version of the property ; and under the Code this proof is equally essential. Eldridge v. Adams, 54 Barb. 417 ; Hale v. OmaTia National Bank, 7 J. & Sp. 207 ; see Goulet v. Asseler, 22 N. Y. (8 Smith) 225. Although the Code abolished the forms of actions, yet the principles by which the former actions were governed still remain, and control as much now as formerly in determining the rights of parties. lb. See ante. The abrogation of the distinction between actions at law and 32 OF RIGHTS, REMEDIES AND ACTIONS. suits in equity, by enacting that there should be but one form ot action, which should be called "a civil action," did not obliterate the distinction between the two sorts of proceedings, so far as the federal courts are concerned. Thompson v. Railroad Com- panies, 6 Wall. 134. And, if a civil action is brought in a State court, and it is essentially a common-law action, then the com- mon-law form, and not an equitable one, must be pursued if the case is removed into a federal court. lb. An action in a com mon-law form cannot be prosecuted in a State court up to the removal of the cause to a federal court, and then have the form of the action changed into that of a suit in equity. lb. If the original form of the action was in accordance with the practice of the State courts, no change will be necessary du the removal of the cause, as the federal courts will, in such cases, adopt and apply the practice of the State courts. lb. But this adoption of the State practice is not to be understood as confounding the principles of law and equity, nor as authorizing legal and equi- table claims to be blended together in one suit. lb. § 3. Joinder of actions, whetlier legal or equitable. Under the former system, a party sometimes erred in the choice of a court in which to obtain a remedy ; and the result was delay and expense, if no other loss ensued. A party who instituted a suit in equity, when his remedy was at law, was turned out of that court to begin again ; and the same was true, when an action was brought at law in a case where equity afforded the only relief. As the courts of this State are now organized, where the same judge presides in all cases presented for adjudication, no one can be turned out of the supreme court upon the ground that his action was commenced in the wrong court. But, before noticing what causes of action may be joined, it ought to be mentioned that the rules of law and the principles of equit3^have not been changed or blended, even when legal and equitable remedies are both sought in a single action. Formerly, an action at law and a suit in equity were both essential, in some cases, if full justice was done to both parties. But by the present system, it is intended that one action shall attain the same result, with less delay, expense or difficulty than under the old practice. The former courts of law and the old court of chancery each had a separate jurisdiction, and each had a system of practice which differed materially from that of the other. The present system adopts the same practice for all classes of actions, or of remedies, so far as that result is practicable. And, in reference to the mode of OF RIGHTS, KEMEDIES AND ACTIONS. 33 commencing actions ; the general mode of pleading ; the practice on the trial ; the mode of entering judgments and of enforcing them ; and even the remedy by appeal ; there is much that is alike, and where there is a difference, it is in those matters which are required by the nature of the action. But while many of the proceedings and forms will be the same, whether the remedy sought be legal or equitable, there will be some proceedings and forms required in some classes of actions, which would not be appropriate in, nor would they be adapted to, the other. The same judge may hear an action at law or a suit in equity, and either actionmay be commenced by a summons; but. even in such a case, there will be some diiference in the form of the summons. Again, an action upon a promissorj^ note may require many pro- ceedings, which are essentially like those in a suit in equity, foi- the adjustment of complicated equities ; but yet there are, and there always must be, differences in the mode of conducting these actions. And it will be found, on a careful examination, that, ex- cept in the uniformity of general proceedings already mentioned, the courts adopt the equity practice in equitable suits and pro- ceedings, and those of the common-law practice in actions at law. In most actions of a legal nature the issues are few and simple, and readily disposed of by a jury ; but, in an intricate equity euit, there are many matters which no jury could possibly dispose of in a proper manner. In such cases, the practice in each action must be such as is appropriate under the circumstances; and, while pursuing such a mode, it does not interfere with the afore- said principle, that the practice in actions at law and in suits in equity have, so far as practicable, been united. The object in blending them was to secure as great uniformity as was attainable, but it was not considered any less important to retain all the advan- tages of both systems, and to use them whenever the ends of justice and the objects of the law would be best subserved. Uniformity in the practice is not to be limited to an attempt to reduce every kind of action to one form of proceeding, nor will it be secured by applying the same rules of proceeding in every case. In equitable actions there are, in nearly all cases, many steps to be taken which would not be proper in an action at law, and yet they are indispensable in equity proceedings. This dif- ference does not in any manner interfere with the general rules of practice, which are equally applicable to either class of ac- tions. Consistency in relation to joining actions at law and suits in equity does not require that the practice should be uniform in Vol. I.- 5 34 OF RIGHTS, EEMEDIES AND ACTIONS. aU particulars, for that is plainly impracticable. When as giBat uniformity as is practicable is attained, all the advantages of blending the two systems will have been secured. And the next important step will be to adopt a uniform and harmonious prac tice in relation to each class of actions, whether legal or equita- ble. And it is just here that some of the most perplexing ques- tions have arisen. The present practice is much of it founded upon statutes, and the difference of opinion among judges in construing them has been greatly increased by the large number of judges who have decided the various questions as they arose in the course of actions. Material differences in the minds of the judges, and of their various modes of study and practice, in addition to the fact that many cases were decided without the aid of previous decisions, which were not then reported, have all tended to increase the number of contradictory adjudications. These inconveniences had, however, some corresponding advan- tages; for, if each judge had decided all his cases without the aid of previous decisions, there would remain the advantage of his own unbiased judgment, acting independently of authority, and thus securing the reasoning of a strong mind after a thorough examination of the case. Conflicting decisions upon the same question are a serious inconvenience in the practice, and they have been somewhat the cause of incongruities in the practice. But much of this evil may now be avoided, for it may be safely said, that most of the difficult questions in the practice are now settled by a clear current of authority. In some instances the true rule is so well settled that no one would question what the rule is. In other cases, there may be a conflict in the authorities, but even these cases are less numerous than one might imagine on a first thought; and, after a careful examination of all the authorities and the statutes, the true rule may be discovered, and a harmonious system laid down for the convenience of the student, the profession and the courts. OF RIGHTS, REMEDIES AND ACTIO JSS. 35 TITLE VI. OF THE EIGHT OF ACTION. ARTICLE I. IS A REMTCDT GIVEN BY LAW. Section 1. In general. The present work was intende I to furnish information as to the rights of action, and as to the grounds of defense; but not to treat fully the mode of prosecut- ing or defending actions, or other proceedings in the courts of record. The rights of person and of property are numerous and frequently in conflict, and the injuries done to them are fre-' quent and serious. To learn with certainty whether the com- plaining party has any remedy, either at law or in equity, is sometimes quite difficult. And, for that reason, the first inquiry which naturally arises on the statement of the case is, whether an action or legal proceeding can be maintained. It is generally difficult to lay down any general rule which has no exceptions. And, as an illustration of this, it may be said, as a general rule, that there is no wrong without a remedy, and, again, there is no right without a remedy, for the want of a right and the want of a remedy are reciprocal. Yet, there are injuries for which the law does not furnish any remedy. In every proceeding in a court of justice the object is, or ought to be, the establishment or recovery of a right, or the prevention of a wrong, or to furnish redress for the wrong if already com- mitted. And no one can properly resort to a court of justice until his right has been disputed, infringed upon, or threatened by a wrongful act, for it is the inj ury done to him which con- fers on the party wronged a right to demand that redress which the law gives for the injury sustained. Before instituting an action, the first question is, whether, upon all the facts that can be established, any remedy can be had, either of a legal or equitable nature. If this inquiry is deter- mined in the negative, the matter is at an end. But if answered in the affirmative, then other considerations will be weighed before proceeding in the matter. Where a party has a legal right to do a particular act, the motive with which he may assert his right will not give a right 36 OF RIGHTS, REMEDIES ANT ACTIONS. of action even where malice prompted the act. Mohan v. Browiy 13 Wend. 261 ; Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. (5 Seld.) 444 ; CJiatfield v. Wilson, 28 Yt. 49 ; Occum Co. V. Sprague Manuf. Co., 34 Conn. 530 ; Stevenson v. Newnham^ 13 C. B. 285. When malice will be considered, see Lumley v. Oye, 2 Ell. & Bla. 216 ; Coitrell v. Jo7ies, 11 C. B. 713. The consent of a party to an act is generally a bar to an action for any injury sustained in consequence. HUnois Central R.R. Co. V. Allen, 39 111. 205 ; State v. Beck, 1 Hill (S.C), 363 ; Pillow V. Buslmell, 5 Barb. 156. And see Broom's Legal Maxims, 201. Volenti nonfit injuria. See " Contributory Negligence." § 2. Are there sufficient existing facts. No part of the practice presents greater difficulties, or furnishes sharper conflicts than the establishment of the facts claimed by the respective parties to exist, and to be precisely as each party claims they are. One of the most important questions, then, is to settle whether there are such facts as the complaining party alleges. And, before considering any other point, the first investigation will be as to the actual existence of the alleged facts. If it is doubtful whether the facts ever really existed, this difficulty may be insuperable. Again, let it be supposed that the facts once really existed, but that at the present time they cannot be established by proof ; in Buch a case, it must be recollected that where the court cannot take judicial notice of a fact, it is the same as if the fact had no existence. In the next place, let it be assumed that the facts once existed, and that some proof thereof may be made, the next inquiry will be whether the opposite part}^ is able to adduce satisfactory countervailing proofs, and, in that case, to determine whether, for all practical purposes, the facts are not really the same as though they were non-existent. One further consideration ought not to be overlooked, and that is in relation to the preservation or perpetuation of evidence which may now be attainable, but which may be lost by the death of a single witness, or the destruction of some important document. In every such case there ought not to be any delay in taking such steps as will preserve the evidence. An action does not lie against two persons for conspiring together, maliciously and vexatiously, and without reasonable or probable cause, to commence, and for commencing, an action against the plaintiff, in the name of a third person, but for their own benefit, without there is an allegation of legal damages resulting to the plaintiflF therefrom. Cotterell v. Jones, 11 C. B. OF RIGHTS, REMEDIES AND ACTIONS. 37 713. Whether or not it will lie witJi such an allegation — quere. lb. See 2 R. S. 551, § 1 ; Craig v. Twomey, 14 Gray, 486 An action brought in the name of another person, without his authority, is a groundless and unlawful suit ; and for the dam- age done to the defendant in such suit, he may rtecover against the person by whom it was brought. Foster v. Dow, 29 Maine, 442. § 3. Actions for injuries to person or personal rights. The numberless injuries which may be done to the person, or to per- sonal rights, have furnished materials for a vast collection of large volumes ; and a resort must be had to them and to the reports and statutes for further information. Two inquiries ought always to be made and satisfactorily answered, before institut- ing an action. First. Are the facts such that, upon the whole case, independently of any defense, the law will give a right of action ? Secondly. Can the defense establish facts which will constitute a complete answer or bar to the action, by showing a legal excuse or justification for the acts done ? These questions may not always be easy to dispose of, but their examination is an imperative duty. § 4. Actions relating to property, real or personal. This sub- ject, like the last preceding one, is so vast that nothing more will be done in this place than to remind the student of the import- ance of a thorough knowledge of the law relating to such prop- erty. There is no mode by which a title to it can be acquired that may not be a subject of investigation. There is no wrong which can be done to it which may not need the aid of the courts. And there is no contract which can be made in relation to it thai may not become a subject of inquiry. If the inquiry involves a question of title, then it will be nec- essary to examine the particular kind of title, which is claimed to exist. If the right of possession is in dispute, this question may require much labor to solve it. If the action be for a wrong done to such property, the right of the complainant thereto,. his right of possession at the time of the injury, and the right of the defendant to do the acts complained of, may all become import- ant. In brief, nothing that relates to. the title, the right of posses- sion, or the claim made by the defendant, is to be overlooked. Fraud in obtaining personal property is a wrong to property, for which an action lies as clearly as for a wrongful taking oi conversion of it. Cleveland v. Barrows^ 59 Barb. 364. 38 OF RIGHTS, REMEDIES AND ACTIONS. § 5. Actions founded upon contracts. Some of the most im- portant interests in society are based upon contracts, express or implied, and as actions are daily brought for the breach of such contracts, so the whole law on that subject must be a constant subject of investigation. Some few elements of contracts must always be kept in view investigating rights claimed to be founded upon contract. There must be a subject-matter of the con- tract ; a sjifRoient legal consideration ; an assent given by parties legally competent ; an agreement, express or implied, to do or omit some specified or understood thing ; the contract must be executed in due form of law, and it must not be illegal in its nature or provisions. Some one or more of these matters require attention in every case where a remedy is claimed by virtue of a contract, or where a defense resting on contract is interposed. § 6. Actions founded upon torts. The infinite variety of in- juries which may be done to person, to personal rights, or to property, real or personal, affords a wide field of investigation as to rights and remedies. It would be an endless task to enu- merate all the wrongs of which the law takes cognizance, and in respect of which redress, in the shape of compensation in damages, is afforded. Assuming that due attention will be given to those cases in which an action will lie if the proper facts are established, it will next be important to point out some of the cases in which no action can be maintained, even in cases in which it is clear that one party has sustained damages from the acts or omissions of another. To constitute an actionable tort, the general rule is, that there must be an actual or legal damage to the plaintiff, and a wrong- ful act by the defendant. But, notwithstanding this, one person may sustain a serious injury at the hands of another, as in the case of an inevitable accident {Harxiey v. Dunlop, Hill & Denio, 193 ; Bennett v. Ford, 47 Ind. 264 ; Broion v. Collins, 53 N. H. 442 ; 16 Am. Rep. 372 ; Holmes v. Mather, Law Rep., 10 Exch. 261), or a lawf qI act done in a lawful manner, without any carelessness or negligence, in which cases there is no legal injury, and no tort which will sustain an action for damages. Again, a party in doing an act in necessary self-defVnse may inj ure another without being liable to an action, as wheje a lighted firework is thrown into a company and again thrown out in self-defense, when it falls against another, or explodes in his face and blinds him. Scott y. Shepherd, 3 Wils. 403 ; 2 W. Bla. 892. So if a person's lands are exposed to the inroads of the sea, he may erect proper sea-walla OF KIGHTS, REMEDIES AND ACTIONS. 39 for the protection of liis lands, without liability for any injury which his neighbor may sustain in consequence. Rex v. Pagham^ Covi., etc., 8 B. & C. 360. One who owns a house commanding a fine sea view, may sell the house, and afterward build on his own land in such a manner as to shut out the sea view of such pur- chaser, and yet not be liable to an action. There may be other wrongs which do not cause such legal damages as to sustain an action, as where there is a slander b}^ word of mouth, bat the words do not convey an imputation of an indictable offense, if the injured party has not, in consequence, sustained some pecu- niary loss, or been injured in his trade, occupation or profession. At common law the most unjust and public charge or imputation of a want of chastity on the part of a female is not actionable without proof of actual damages {Pettibone v. Simj^son, 66 Barb. 492 ; Wilson v. Goit, 17 N. Y. [3 Smith] 443), though the rule is now otherwise by statute in this State. Laws N. Y., 1871, ch. 219, § 1 ; 9 Edm. Stat. 67. There are other cases in which the damage is too remote to give rise to a cause of action. The publication of a libel upon an opera singer, who was deterred from singing because of her fears of injury which might be done by some one influenced by the libel, but not on account of the publication of the libel itself, will not be sufficient to maintain an action by the manager against the author of the libel. Asliley v. Harrison, 1 Esp. 49. So, in an action for slander, when the defendant has uttered slanderous words in respect of the plaintiff, not imputing to him any indict- able offense, and creating a cause of action only in case the utterance of the slander has caused actual legal damage to the plaintiff, and no such damage has accrued to the plaintiff directly from the utterance of the w^ords, and they would have failed to produce any injurious consequences to the plaintiff, if they had not been repeated by another person, the injur}- resulting from the intervention of that other person cannot be visited upon the defendant. Ward v. WeeTcs, 7 Bing. 211 ; Parkins v. Scott, 1 H. & C. 153. Competition in trade is not actionable. In such a case there is no wrong, for the act done is the mere exercise of an undoubted right which belongs to every member of society. So, if a fisher- mar fits out a boat with lines and nets, and goes to fish in the high seas, and another fisherman comes and flshes beside him, and with tempting baits, or other contrivances, draws away the fish from the lines and nets of the first comer, with a view of 40 OF RIGHTS, REMEDIES AND ACTIONS. catcliing them himself, an injury may be done ; but there is no tort or wrong, for the one had as much right to fish, and to use fair and reasonable means to catch fish, as the other ; but if the rival fisherman lays hold of the nets of the first comer, or vio- lently disturbs the water and drives away the fish, and prevents the latter by force or violence from exercising his occupation or calling, there is then a wrong done to him, and he is entitled to compensation in damages. Young v. Hlchens, 6 Q. B. 606. Where the negligence of the plaintiff" contributed to bring about the injury complained of, he will, as a general rule, be remediless, and upon this point the cases are very numerous. But in this connection, it should be noticed that contributory negligence on the part of the plaintiff" may not prevent his action, unless his acts were such that but for them the injury could not have happened ; or, if it appeared that the defendant might have avoided the consequences of the plaintiff" s neglect or careless- ness, by the exercise of due care on his own part. See the cases cited in 2 Wait's N. Y. Dig. 1087 to 1091. An action will lie for a continuing tortious act, which injuri- ously aff"ects the property of another although no appreciable damage results from it. Delaware & Hudson Canal Co. v. Tor- rey, 33 Penn. St. (9 Gas.) 143; see, also, Thomas v. Brackney^Yl Barb. 654; Carhart v. Auhurn Gas-liglit Co., 22 id. 297; Honsee V. Hammond., 39 id. 89; C Riley v. McChesney, 3 Lans. 278. There is a class of cases, in which it is material to the preserva- tion of a right, that its invasion, although productive of no positive or appreciable damages, should not be tolerated or suf- fered with impunity. Thus, trespass for the breach of a close is maintainable for an entry on the land of another, though no real damage was occasioned thereby, one main reason being tliat repeated acts of going over the land might eventually be relied upon as evidence of title to do so", and thereby the riglit of the plaintiff to the absolute enjoyment of the land might be injuri- ously affected. The proposition may indeed be generally stated that whenever one man does an act which, if repeated, would operate in derogation to the rights of another, he is liable to an action, without particular damage, at the suit of the person whose right may be affected. Harrop v. Hirst, L. R., 4 Exch. 47- per Kelly, C. B. § 7. Is there an existing riglit of action. A full and careful examination of a case may show clearly that there was once a good cause of action ; but, since there are many ways in which OF RIGHTS, REMEDIES AXD ACTIONS. 41 Buch right of action may be suspended, impaired, or destroyed, it is always proper to consider how far the case in hand has been thus affected, and whether there is a present perfect right of action. When all the facts alleged in the complaint are conceded to be true, but they are not sufficient to constitute a cause of action, the occurrence of a material fact after the service of the summons cannot be incorporated in the complaint, and will not be of any avail in maintaining the action, because the right of action must be complete before the action is brought. McCullough v. Colby, 4 Bosw. 603; o id. 477; Waitson v. Thibou, 17 Abb. 184; BiccJianan v. Gomstock, 57 Barb. 582 ; Hare v. Van Deusen, 32 id. 92; Oothout v. Ballard, 41 id. 33; Smith v . Aylesworth, 40 id. 104; Bostwick v. MencJc, ^ Daly, 68; Church v. Frost, 3 Thomp. & Cook, 318 ; 3fuUer v. Earle, 5 Jones & Sp. 388 ; Cas- trlque v. Bernabo, 6 Q. B. 498; King v. Accumulative Assur- ance Co., 3 C. B. (N. S.) 151. As there are many important matters which require due con- sideration before bringing an action, it may be convenient to refer to some of them. First. Where there has once been a good cause of action, it is well to inquire whether it has been relinquished or forfeited by any act or omission of the party entitled to it, as by laches, lapse of time or otherwise. Secondly. If the cause of action arises on contract, has the plaintiff performed all such terms or conditions of it as the law requires of him before the other party can be put in default ? Thirdly. Are there any acts which ought to be done by the complaining party before his right of action is complete ; such as making a request or demand upon the opposite party, giving notice of some matter or thing of which he is entitled to notice, or offering to do some act or perform some condition ? Fourthly. Has the performance of the contract become illegal by act or operation of law ; or has it become impossible by any acts or events which will legally excuse the performance by the defendant ? Fifthly. Has the defendant done any thing which will relieve him from the liability to an action, such as making a tender before suit brought, or offering judgment, paying the demand, or offering to liquidate damages, so that he will be relieved from the costs of the action even though the plaintiff has a verdict ? Sixthly. Has the right of action, if once perfect, been in any Vol. I.— 6 42 OF RIGHTS, REMEDIES AND ACTIONS. mannjer destroyed or barred, as by a release, an accord and satiS' faction, an arbitrament and ^ward, or been discharged by opera- tion of law, or the like ? Seve7ithly. Has the right of action been suspended, as by tak- ing a negotiable security which is not due ; by a valid extension of the time of performance which has not expired ; or by any 7alid agreement which prevents an immediate action ? Eightlily. Has the plaintiff recovered a judgment in a case in which he seeks a remedy founded upon such recovery, or has he been defeated in an action so as to entitle him to recover the con- sequent loss from the defendant ; or has a right of action been established at law in those cases, in which such a recovery is necessary before an equitable remedy is given, as by injunction, etc. % Ninthly. Where the cause of action arose upon contract, how far will an action be affected by a discharge or other proceed- ing under a bankrupt or insolvent law ? Tenthly. Is either party under any legal disability, such as infancy, coverture, lunacy, alienage or the like ; and if so, what steps are necessary to be taken so that the remedy shall be legally pursued % Eleventhly. Is the claim or demand barred by the statute of limitations ; and if it has been, is the demand renewed by a written promise, by a valid part payment or the like ? From these general suggestions it will be seen that the plain- tiff must examine the law carefully as to his original right of action, and, in addition, must, as far as possible, anticipate every ground of defense which is likely to be interposed. § 8. Cumulative or exclusive remedies by action. A statute which provides that a penalty imposed by it may be recovered by a summary proceeding upon complaint before two or more justices, does not bar the party from his remedy by action. Collinsoji v. Newcastle & Darlington Railway Co.., 1 Car. & Kir. 546 ; Lichfield v. Simpson, 8 Q. B. 65. See Lane v. Salter, 51 N. Y. (6 Sick.) 1. But where a pecuniary obligation is created by a statute, and a remedy expressly given for enforc- ing it, that remedy must be adopted. St. Pancras {Vestry) V. Battenbury. 2 C. B. (N. S.) 477 ; Dudley v. Mayheio, 3 N. Y. (3 Comst.) 9 ; First National Bank of Whitehall v. Larrib, 57 Barb. 434. Where a statute authorizes a corporation to forfeit thft shares of stock of a subscriber for the non-payment of install- ments due upon a stock subscription, an exercise of the right of OF EIGHTH, KEMEDIES AND ACTIONS. 43 forfeiture on the part of tlie corporation will bar any subsequent action for such installments. Small v. HerJcimer Manufacturing Co., 2 N.T. (2 Comst.) 330 ; Mills v. Steicart, 41 N. Y. (2 Hand) 384. § 9. Illegality of ground of action. No principle of law is better settled than that which declares that an action cannot be maintained upon any ground or cause which the law declares to be illegal. Davidson v. Lanier, 4 Wall. 447 : Rolfe v. JDelmar, 7 Rob. 80 ; Stewartson v. Lothrop, 12 Gray, 52 ; Hoicard v. Har- ris , 8 Allen, 297 ; Pearce v. BrooTcs, L. R., 1 Exch. 213 ; Smith V. White, L. R., 1 Eq. Gas. 626. See title "niegality." § 10. Of leave to bring or defend actions. As a general rule, actions may be commenced or defended without any leave of the court for that purpose. There are, however, some classes of action in which the court ought to be applied to for leave to bring or defend the action. The necessity for such an applica- tion always arises from some special character of the parties, either as plaintiff or defendant, and, therefore, it is always proper before commencing an action, or interposing a defense, to ascer- tain whether or not it is one of those cases which requires an application for leave to sue or to defend. The necessity for such an application will usuall}" depend upon the fact whether or not any of the parties to the action are under the control or the pro- tection of the court. If they are not, then leave to sue or defend is unnecessary ; if they are, then it is necessary. An omission to obtain leave to sue where such leave is necessary, is a mere irregularity in practice, and it is not in any case an element of the cause of action. Chautauque BanTc v. Risley, 19 N. Y. (5 Smith) 369 (376); i^awe v. /Sa^fer, 4 Rob. 239. Seel Wait's Prac. 191-215 ; see, also, post, " Leave to Sue," etc. § 11. Of the parties to an action. It is of the utmost import- ance that the proper persons should be made parties plaintiff or defendant as the case may require. And under the common-law system of practice, an omission in this particular was frequently followed by the most serious consequences. But, under the liberal system of the Code, the courts have power to correct such errors, and to relieve parties from the consequences of an error in this respect, when they have acted in good faith, and where the furtherance of justice will be promoted by an amendment See 1 Wait's Pract. 88-180, as to the proper parties to an action, In the present work, there will, in many cases, be full informa tion given as to who are proper parties plaintiff or defendant In most of the titles will be discussed the right of action, as weU 44 OF RIGHTS, REMEDIES AND ACTIONS. as the questions who may sue or who may be sued. The parties who may defend, and what to interpose as a defense, will be found in that part of this work entitled "Defenses." § 12, Of tlie pleadings in an action. Pleading has been defined to be "the statement, in a logical and legal form, of the facts which constitute the plaintiff's cause of action, or the defend- ant's ground of defense; it is the formal mode of alleging on the record, that which would be the support or defense of the party in evidence.' ' In this work it is not intended to give the technical rules of pleading, nor the forms used in practice. These must be sought in works especially devoted to those sub- jects. See, also, 2 Wait's Pract. 285-509. It will be remembered, however, that a full discussion of the right of action, and of the grounds of defense, will, in most cases, show what facts ought to be alleged either as a cause of action or as a matter of defense. § 13. Of the evidence in an action. This subject will be merely alluded to in this work, and full information must be obtained from works devoted to that subject, or from the reports and statutes. But notwithstanding the omission of a full discussion of the rules of evidence, there will be full information given aa to the facts which must be established to support an action or to maintain a defense. TITLE VII. OF THE JUEISDICTION OF ACTIONS. ARTICLE I. IN GENERAL. Section 1. Definition and incidents. Jurisdiction is that power which the law confers upon courts, judges or other j adicial officers to take cognizance of actions or proceedings, and to decide them according to law, and to carry their decision, decree or judgment into execution. The tract of land over which such jurisdiction ia exercised is called the territorial jurisdiction. Jurisdiction ia original, when it is conferred on the court or otKcers in the first instance. It is appellate, when an appeal may be taken from the decision or judgment of another court. It is concurrent, when it may be entertained by several courts ; although it is a rule, in OF RIGHTS, REMEDIES AiS"D ACTIONS. 45 these cases of concurrent jurisdiction, that the court which is first seized of the cause shall try it to the exclusion of the other. It is exclusive, when only one court has the right to try the suit^ action, or matter in dispute. Assistant jurisdiction is that which is afforded by a court of chancery in aid of a court of law, as, for example, by a bill of discovery. A court which takes cognizance of an action, and proceeds in it, decides in effect that it has jurisdiction, although such decision may not be announced in express terms. Clary v. Hoagland, 6 Cal. 685. And where a court has the parties before it, it must necessarily obtain jurisdiction so far as to decide whether it can entertain the suit or proceeding, that is, whether it has jurisdic- tion of the action. King v. Poole, 36 Barb. 242. See Cumber- land Coal & Iron Co. v. Hoffman Steam Coal Co., 39 Barb. 16 ; 15 Abb. 78 ; Humiston v. Ballard, 40 How. 40 ; S.C., 63 Barb. 9. Where jurisdiction is conferred in general terms, or for general or special purposes, the grant of such jurisdiction will carry with it all such legal incidents as are necessary and proper to secure the exercise of the authority. Stiefy. Hart, 1 N. Y. (1 Comst.) 20 ; Bobbins v. GorTiam, 25 N. Y. (11 Smith) 588, 594 ; Yoorliees v. Martin, 12 Barb. 508. Where a court has jurisdiction it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded aa binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities ; they are not voidable but simply void. People v. Sturtevant, 9 N. Y. (5 Seld.) 263, 266 ; Wilcox v. Jackson, 13 Peters, 511. "Usually where a court has no jurisdiction of a case, the correct practice is to dismiss the suit, but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction and has given judgment or decree for the plaintiflf, or improperly decreed affirmative relief to a claimant. In such a case the judgment or decree in the court below must be reversed, else the party which prevailed there would have the benefit of such judgment or decree, though ren- dered by a court which had no authority to hear and determine the matter in controversy.'- United States v. Huekabee, 16 Wall. (U. S.) 414, 435, 436, per Clifford, J. 46 OF RIGHTS, EEMEDIES AND ACTIONS, ARTICLE 11. COMMON-LAW JURISDIOTIOK. Section 1. Nature and origin. Tlie origin of courts has been elsewhere sufficiently explained. And, in relation to the authority exercised by courts generally, but few remarks are required. In the creation of courts and in the delegation of judicial authority to them, it is impossible to enumerate all the instances in which such authority may be exercised. And when general rules of law have been established for the determination of the rights of person and of property, and general rules of practice have been adopted, it is left to the court by the aid of these rules of law and of practice to determine what cases are, and what not, within the jurisdiction of the court to which such case is submitted. And, in a vast number of the causes which have been decided by the courts, no other authority for their trial is to be found, except that conferred by the principles of the common law, or of those of courts of equity. In all such cases, where courts hear and determine those matters which are within the reason of the rule which organized them and gave them authority, it is an invaluable part of their powers that they may act without being required to point out a specific, express grant of power in the particular case ; for if this could be exacted of them, the result would be to deprive them of a large share of the authority which they have exercised from time out of mind, and, by general consent, with the greatest advan- tage to society at large. If any one desires to know how exten- sively this practice has prevailed, let him briefly trace the source of those powers which are daily exercised by our supreme court in actions at law, or in suits in equity. ARTICLE III. CONSTITUTIOlSrAL AND STATUTORY JURISDICTION". Section 1. In general. That our higher courts were always simi- lar to those of the English superior courts, and in the main founded upon them, is well known. And, since the estab- lishment of our State government, tlie ruie has been the same, since much of the English common law was adopted as a part of our system of laws. The jurisdictions of the supreme court, and of the court of chancery, have never been distinctly OF RIGHTS, REMEDIES AND ACTIONS. 41 pointed out, either in the constitutions or the statutes of this State. The first constitution treats these courts as exist- ing, and mentions the chancellor and the judges of the supreme court, but does not declare or define the jurisdiction of these courts. Const, of 1777, article 16. By the constitution of 1821, article 7, section 13, the English common law was adopted- By article 7, sectious 3, 4, 5, 6 and 7, provision is made in rela- tion to the judges and chancellor, but their jurisdiction is not there defined. The constitution of 1846, article 7, section 3, pro- vides for a supreme court, having general jurisdiction in law and equity. The judiciary act of 1847, chapter 280, section 16, de- clares that the supreme court shall possess the same powers and exercise the same jurisdiction as had formerly been possessed by the supreme court and the court of chancery. By the Code of Procedure, section 10, the same jurisdiction is continued. The present constitution, article 6, section 6, con- tinues the existing jursidiction, and chapter 408 of Laws of 1870 provides for carrjdng the provisions of this constitution into effect. From this brief review, it is readily seen that the civil juris- diction of the supreme court extends to all actions or suits which are within the jurisdiction of the English courts of queen' s bench, common pleas, exchequer, or the court of chancery. There are statutes which expressly confer or define the jurisdiction of the supreme court in specified cases. But, as a whole system, there are no constitutional or statutory provisions which clearly and explicitly declare or define the precise limits of the jurisdiction of this court in all cases, except in so far as a general reference or the character adopted may be said to be certain, since it refers to a system which is substantially well defined. The supreme court, as now organized, may be considered a,s possessing juris- diction over all cases of a legal or of an equitable nature, and as competent to secure every right and to give every remedy or relief which the law guarantees to any person. There are a few excep- tions to this general rule, but they need not be here specified. ARTICLE lY. JURISDICTIOlf OF STATE COURTS. Section 1. In general. Under a government like that of the United States, where there are several large States, and each possessing an extensive as well as exclusive jurisdiction within its limits, it may be laid down as a general rule that 48 OF RIGHTS, REMEDIES AND ACTIONS. the jurisdiction of each State does not extend beyond its ter ritorial limits, and that within such limits its jurisdiction is exclusive. In relation to the United States courts there are exceptions to this general rule. So, too, the judgments of each State are entitled to respect and the aid of other States in carry- ing them into effect in such States when necessary. In most cases, a party who seeks a remedy against a resident of a par- ticular State, or against his property situated within it, must apply to the courts of that State for the relief sought. ARTICLE y. SUPEEIOE AND INFEEIOE COUETS. Section 1. In general. Those courts which have general juris- diction in law or equity cases are usually termed superior courts, while those which have but a limited jurisdiction as to subject-matter, locality or persons, are called inferior courts. The proceedings of an inferior "court may be as reg- ular and its judgments as conclusive as those of a superior court. But the mode of establishing that fact is not always the same. A court of general or superior jurisdiction is presumed to have acted within its jurisdiction, and this presumption continues until the contrary is shown. The record of the proceedings of a superior court need not show affirmatively that it had jurisdic- tion, so far as the authority to act is concerned, when the ques- tion arises collaterally, but it is otherwise when the question arises by way of review for the correction of errors, and the question has been properly raised in due time. Limited or infe- rior courts have no jurisdiction except that specially conferred, or such incidental powers as may be included in the general delegation of the authority. And in such cases the records of their proceedings ought to show affirmatively on their face that the court had jurisdiction, except in those cases which permit extrinsic evidence for the purpose of establishing that fact. 2 Wait's Law and Pract- 21. ARTICLE VL EXCLUSIVE OR CONCUREENT JURISDICTION". Section 1. In general. The jurisdiction of any court is excln- sive, when no other court can exercise the same powers in rela tion to the action. In some cases the United States courts OF RIGHTS, REMEDIES AND ACTIONS. 49 have exclusive jurisdiction, and the State courts have no authority to act in the matter. So, too, in reference to the several courts in a State, there may be an exclusive j'iiris- diction conferred upon one court to the exclusion of the other courts of the same State. The distinction between the powers of the superior and the inferior courts illustrates this point. Again, in those States in which courts of law and courts of equity are separate organizations, there are numerous instances in which each court has exclusive jurisdiction. This subject, however, is less important here, since the powers of the two courts are now exercised by the supreme court. The jurisdiction of courts is concurrent, when each of several different courts has the same right to act in relation to its sub- ject-matter, or as to the persons of the parties. There are many cases in which there is a concurrent jurisdiction in most respects, while there are few cases in which the powers of the court are identical. Within certain limits as to amount, and as to the locality of the parties, when an action for the recovery of money has been brought in a justice's court, it maybe said to have exercised a jurisdiction concurrent with that of the supreme court as to the recovery of that amount. But, the most that can be properly said is, that the inferior court has a limited concar- rent jurisdiction. There are also courts of record, such as the county courts, and other courts of record of cities, which exer- cise a jurisdiction concurrent in some respects with that possessed by the supreme court. But, in all such cases, while the inferior courts possess a limited concurrent jurisdiction in some respects, it cannot be said of any of them that their jurisdiction is in any other respect concurrent with that of the supreme court. There may be a concurrent jurisdiction as to some remedies, while in all other respects the j urisdiction is in no sense concurrent. ARTICLE YII. JUEISDICTIOif OF SUBJECT-MATTER. Section 1. In general. In actions in the supreme court there can seldom be any question as to the jurisdiction over the subject- matter of the action, since this court has general jurisdiction at law and in equity. But even this court is sometimes with- out authority to act, as in the case of an action to restrain the infringement of a patent right. Dudley v. Mayhew, 3 N. Y. (3 Comst.) 9. If the law does not confer jurisdiction Vol. L— 7 60 OF RIGHTS, REMEDIES AN^D ACTIONS. over tlie subject-matter of the action, no consent given by the parties will be of any avail, even though there should be an express agreement not to raise the question. lb. And the objec- tion may be interposed at any time, since in that case there can be no waiver of it; but the judgment will be held entirely void at all times and in all places. See the cases cited in Wait' a Code, 24, 25, 26. Courts cannot be deprived of their jurisdiction by any agree- ment of the parties, as by an agreement that matters of differ- ence arising out of a specified contract shall be submitted to arbitration. Rartv.Lauman, 29 Barh. 411; ITaggart v. Morgan, 5 N. Y. (1 Seld.) 422. See 1 Wait's Law and Prac. 1013. Nor can they by consent confer jurisdiction over the subject- matter of actions, where none is given by law. Dudley v. May- Tiew, 3 N. Y.(3 Comst.) 9; Beach v. Nixon, 9 N. Y. (5 Seld.) 36; 2 Wait's Law and Prac. 15 ; Atiards v. Rhodes, 8 Exch. 312 ; Lawrence v. Wilcock, 11 Ad. & E. 941 ; Yansiitart v. Taylor, 4 E. & B. 910, 912. ARTICLE VIII. JTJEISDICTION" OF THE PEESON. Section 1. In generaL Before any court can acquire jurisdiction over the person of the defendant, there must be some steps taken to bring him into the court. 2 Wait's Law and Prac. 11 to 15. No one can be lawfully condemned before he has had an opportunity to be heard. There is a material differ- ence, however, between this case and that relating to the sub- ject-matter of the action. In the latter case we have seen that consent cannot confer jurisdiction. But a defendant may waive an irregularity in the mode of bringing him into court, or he may appear and give jurisdiction over his person by consent. 2 Wait's Law and Prac. 17 to 20. Such waiver may be express, or it may be implied from his acts, by taking subsequent steps in the action without objection to the previous irregular or void proceedings. But for all practical purposes, a single remark is Bulficient, as every careful practitioner will be certain to proceed in such a manner that no valid objection can be made in relation to the regularity of the steps by which the defendant has been proceeded against for the purpose of obtaining jurisdiction over his person or property. It may be well to mention here that in case the defendant is OF RIGHTS, REMEDIES AND ACTIUNS. 51 absent from the State, or is a non-resident, there may, in a proper case, be proceedings against such of his property as may be found in this State. ARTICLE IX. DISQUALIFICATIOlsr OF JUDGES. Section 1. In general. The law declares in some cases, that a judge cannot sit as such on account of some matter personal to himself. Relationship to either of the parties is an instance of this kind. 2 R. S. 275, § 2. So of an interest in the cause of action, or where he is a party to the action. lb. If he decided the cause in the court below, or took part in the decision, he cannot sit in the appellate court, in review of such decision. lb., § 3. Const., art. 6, § 8. See, also. Heal y. People, 42 N. Y. (3 Hand) 270; 8 Abb. (N. S.) 314. Where a judge is disqualified to sit in a cause, by reason of consanguinity to one of the parties, he cannot sit, even by con- sent of both parties, and if he does, the judgment will be vacated. Oakley v. Aspinwall, 3 N. Y. (3 Comst.) 547. See 2 Wait's Law and Prac. 21 to 28. ARTICLE X. JURISDICTION- IN SPECIAL CASES. Section 1. In general. There are numerous cases of actions and special proceedings in which the jurisdiction is expressly con- ferred by statute. ARTICLE XI. OF RAISIISrG OR WAIVING THE OBJECTION. Section 1. In general. Where the court has no jurisdiction over the subject-matter of the action, an objection may be taken at any time; but, where the objection relates to the person of the defendant, he may waive any irregularity in the mode of bringing him into court ; and, when once waived, the jurisdiction of the court over his person will be complete. Such waiver may be express or implied, and if the defend- ant proceeds in the action by pleading, or taking other steps therein, his conduct will amount to a waiver of all objec- tions of that kind; and, if a party would avail himself of such objections, he must act promptly in raising them, and be careful not to waive them by any subsequent acts on his part. See 2 Wait's Law and Prac. 19, 20. 62 OF RIGHTS, REMEDIES AND ACTIONS. TITLE VIII. OF EEMEDIES WITHOUT ACTION. ARTICLE I. OF PREVENTIVE MEASUEES. Section 1. In generaL Courts of justice are instituted in every civilized society for the purpose of securing an effectual redress of private injuries, by protecting the weak from the insults of the stronger, and by expounding and enforcing those laws by which rights are defined and wrongs prohibited. This remedy is principally to be sought by an application to these courts of justice by means of a civil suit or action. But, as there are certain injuries of such a nature that some of them furnish, and others require, a more speedy remedy than can be had by the ordinary forms of justice, there is allowed, in any such case, an extrajudicial remedy without the aid of the courts. In many cases the most speedy justice afforded by the courts could not adequately supply the absence of such immediate and necessary remedies, nor could the natural impulse of self-defense against sudden and immediate aggressions be restrained. The law, therefore, permits parties to adopt certain modes of resist- ance, and merely interferes to modify and regulate the means employed. Laws for the prevention of injuries are sometimes better than those for compensation or punishment, as they pre- vent loss to the individual, and the necessity of prosecuting the wrong-doer at the risk of his being utterly unable to make com- pensation, or even to reimburse the expenses of legal proceed- ings against him. Preventive remedies may be variously divided, and for the purpose of convenient discussion they will be pre- sented in the order adopted in this title. ARTICLE 11. DEFENSE BY RESISTANCE. Section 1. In general. Self-defense is one of the first and strong- est impulses of our nature. And the law respects 'he passion of the human mind so far as to render it lawful for him to do himself that immediate justice to which he is prompted OF RIGHTS, REMEDIES AND ACTIONS. 55 by nature, and which no prudential motives are strong enough to restrain. The future process of law may be by no means an adequate remedy for an injury accompanied by force; and it is impossible to say to what lengths of rapine or cruelty an outrage of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. 3 Broom & Had. Com. 3; id., vol. 2, p. 2, Wait's ed., and notes 427, 428. Self-defense, therefore, as it is justly called the primary law of nature, so is not, neither can it be in fact, taken away by the laws of society. lb. ARTICLE in. DEFENSE OF THE PEESON". Section 1. In general. The strongest justifiable act of defense is the killing of the aggressor, and which of course includes bat- tery, wounding and mayhem, or a minor damage. The general rule is, that a homicide may be committed for the prevention of any forcible and atrocious crime, which would, if com- pleted, amount to a felony, and under the circumstances, a mayhem, wounding or battery would be equally justifiable. Self-defense is also equally justifiable when a person is illegally attacked, although the aggressor may not intend to commit a felony. But the party defending ought not to permit his resist- ance to exceed the bounds of defense and prevention, for if he does, he may become himself an aggressor. See the last section and cases referred to. ARTICLE ly. DEFENSE OF PEESONAL PEOPEKTT. Section 1 . In general. A man may repel force by force in de- fense of his personal property, and justify homicide against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, as robbery ; but this rule does not extend to the case of a pickpocket, for that would not be a case of forcible felony. 1 Chit. Gen. Pr. 597. When one person has unlawfully entered upon the premises of another and possessed himself of the goods of the owner, the latter or his agent may, while upon his own premises, prevent the wrong-doer from taking such goods away, and may lawfully use so much force as may be necessary to retain his property and prevent its Di OF RIGHTS, REMEDIES AND ACTION'S. removal out of his custody and beyond his reach. The law doea not oblige the owner of property to stand idly by and see a thief or trespasser take his property from his premises, or limit him to mere verbal remonstrance. He may act promptly, and whether he may use force or not in the first instance, and what degree of force depends upon the exigency of the particu lar case. Gyre v. Culver^ 47 Barb. 592. The mere taking of the property by the owner, under such circumstances, from the cus- tod}^ of the wrong-doer, without other force or violence, does not constitute an assault and battery. And if the taking, or the attempt to take, is resisted by the trespasser, and he persists in his attempt to retain possession and to carry the property off, then the owner may lawfully use so much additional force as may be necessary to prevent it. lb. But, even in such a case, the force must not exceed that necessary for the defense of the property. And where the plaintiff took hold of a rake in the defendant's hands in order to take it from him, upon which the defendant immediately knocked the plaintiff down with his fist, this was held to be an unlawful act. Scribner v. Beach, 4 Denio, 448. ARTICLE V. DEFENSE OF REAL PEOPERTY. Section 1. In general. A person may lawfully defend or protect the possession of real property, and if the assailant is attempt- ing to commit a forcible felony, such as burglary, arson, or the riotous demolition of a house, the party in possession may resist even to the extent of taking the life of the felon- ious assailant. So where a forcible attack is made upon a dwelling-house, but without any felonious intent, and for the purpose of committing a mere trespass, it is, as a general rule, lawful to oppose force by force when the former is illegal. In Buch cases a party may justify a battery, by showing that he committed it in defense of his possession, as for instance to remove a trespasser out of his close or house, or to prevent him from entering it, or to restrain him from taking or destroy- ing his goods ; but the battery must here be limited to only that degree of violence and the use of such weapons only aa may be absolutely essential to effect the object, and no more. A possession in fact, of land, will justify the possessor in using violence, if necessary, in order to defend his possession ; but a mere right to the possession will not justify a person in commit- OF RIGHTS, REMEDIES AND ACTION'S. 55 ting an assault and battery upon another, for the purpose ot reducing his right to actual possession. Parsons v. Brown, 15 Barb. 590. See, also, Sage v. Harpending, 49 id. 166 ; 34 How. 1 ; Corey v. People, 45 Barb. 262, When the entry upon lands is made with no more force than that termed implied force, or force in law, there ought to be a request by the lawful possessor that the wrong- doer depart from the premises before a resort to actual force is employed for his removal. If he refuses to leave, then gentle force may be used ; and, if he still resists, then such force as may be necessary may be emploj^ed. When the entry is forcible, it is lawful to use force against force without a previous request to depart. The distinction between an entry with actual force, and an entry with only implied force, with regard to a trespass on land, has been settled law from an early period. A mere trespass on land, or that of the property therein, is not such an act as justifies the owner in making use of a dangerous or a deadly weapon. There are several methods of protecting property, as by dogs and by instruments dangerous to trespass- ers, and information relating to cases of that kind will be here- after given. ARTICLE VI. DEFENSE OF OTHERS. Section 1. In general. The principle which sanctions the defense of one's own person is extended to certain other peculiar relations. Thus husband and wife, parent and child, master and apprentice, and master and servant are legally excused, and sometimes even justified, in killing an assailant who is about to commit a forcible felony upon the other, when such homicide has been committed in the necessary or lawful defense of each other ; the act of each of those relations being then construed the same, and equally permitted as the defense of the party himself. 1 Chit. Gen. Pr. 613. This principle extends still further, for, if a felonious attack is made upon an individual, then any other person, though not a relative, may lawfully interfere to prevent the mischief intended, and, if in so doing, death ensues, he will, in that case, be justified. lb. But with regard to mere trespasses, there is a ver}^ material difi'er- ence between the interference of certain relations and of mere strangers. The former may justify immediate resistance with force when necessary, but a stranger can only interfere moder- 56 OF RIGHTS, REMEDIES AND ACTIO JNS. ately, and witli gentle hand, to prevent the wrong. lb. A mere stranger cannot justify an interference with force in the first instance to prevent a battery of a third person or any other tres- pass or civil injury, where death or any felony is not likely immediately to occur, but must proceed more moderately, and should previously declare or signify that he interferes merely to preserve the peace and not as a partisan, and he can only justify the gently laying on of his hands to prevent a breach of the peace ; though afterward, if he be himself attacked by either party, he may then defend himself with the same degree of force as if he had been originally illegally assailed. lb. 616. ARTICLE VII. APPEEHEKDIKG CKIMINALS AND WRONG-DOEKS. Section 1. In general. One of the most immediate and effectual means of preventing an injury or securing punishment for its com- pletion is the apprehension and detention of the wrong-doer while in the act of committing the offense ; or in the case of a felony when he is escaping ; and, also, of seizing his engines or implements about to be used and then using for the wrongful purpose. In such cases an arrest may be made without waiting for a criminal warrant, for, if it were necessary to wait for that process, many unknown and transient offenders would escape. In most cases of mere civil injuries without force, or even for a breach of the peace, as an assault and battery, no private individual can, at common law, arrest, apprehend or imprison the wrong-doer, but can at most remove Mm from his house without any imprison- ment. But private individuals are not only permitted, but enjoined, by law, to arrest an offender when they are -nresent at the time when a felony is committed or a dangerous wound given, and when they witness the same, on pain of fine or imprisonment, if the wrong-doer should escape through their negligence. In cases of misdemeanor, a private person cannot, at common law, apprehend another after the misdemeanor or breach of the peace is over, without a warrant, unless he had a view of the misdemeanor or breach. As the cases are very numerous in which arrests may be made without warrants, no enumeration will be here attempted. It may, however, be stated, that when it is doubtful whether a party has committed a felony, the safer rule will be to procure OF RIGHTS, REMEDIES AND ACTIONS. 57 a warrant for his arrest, since, in that case, the party arrested, although innocent, cannot maintain an action unless the charge was maliciously made against him without reasonable cause. When a private person has apprehended a supposed offender, he ought immediately, or as soon as practicable, to deliver the prisoner to a constable, or convey him before a magistrate, or to the county jail. ARTICLE YIII. EESISTANCE OF PROCESS, ESCAPES, RESCUES, ETC. Section 1. In general. When persons having lawful authority to arrest, apprehend, or imprison, or otherwise to advance or execute the public justice of the State, either civil or criminal, and using the proper means for that purpose, are resisted in so doing, not only is such resistance of itself illegal and punishable at common law, but if the party illegally resisting, or any other assisting him, be killed in the struggle, such homicide is justifiable ; while on the other hand, if the party having such authority, and execut- ing it properly, happen to be killed, it will, at common law, be murder in all who take part in such resistance. 1 Chit. Gen. Pr. 633. But it will be found that the common law, and all statutes upon the subject, either expressly or impliedly, suppose that the arrest or imprisonment has been lawful, and therefore an indictment or prosecution for the resistance, or rescue, or prison breaking, must show the nature and cause of the imprisonment from which the party escaped or was rescued, in order that it may appear that the rescue or escape was illegal. lb. 634. When the attempted arrest is without legal authority, it is lawful for the party thus threatened with arrest to resist in self- defense, though he ought not to use any dangerous or deadly weapon for that purpose. And if arrested he may lawfully escape or be rescued, or even break prison, and others may assist him in so doing. lb. 635. But when the process or arrest has a semblance of legality and regularity, the prudent course will be not to resist its execution, as there are proper andetficient modes of obtaining relief from an illegal imprisonment. Vol. L— 8 68 OF RIGHTS, REMEDIES AND ACTIONS. ARTICLE IX. RECAPTION OF PERSON OR PROPERTY. Section 1. In general. Recaption or reprisal is another species of remedy by the mere act of the party injured. This hap- pens, when any one has deprived another of his property in goods Dr chattels personal, or when he detains one's wife, child or servant ; in which case, the owner of the goods, the husband, parent or master, may lawfully claim and retake such property in person, wherever found, provided it is not done in a riotous manner, or attended with a breach of the peace. The reason of this is obvious, since the owner may not have any other opportunity of doing himself justice, as his goods might be afterward conveyed away or destroyed, and his wife, child or servant concealed or carried out of his reach, if he had no speedier remedy than the ordinary process of law. The public peace, however, must be considered rather than any one man's right of property, and since, therefore, if private individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease. The strong would give law to the weak, and every man would revert to a state of nature. For these reasons, it is provided that this natu- ral right of recaption shall never be exerted when such exertion must occasion strife and bodily contention, or endanger the peace of society. § 2. Recaption of the person of a relative. When a wife, child or an apprentice, has been taken away wrongfully by the party withholding either, the person entitled to the custody may at once, and without any formal request or demand, peaceably enter the house of the wrong-doers, the outer door being open, and carry away the party wrongfully detained. But such recap- tion cannot be legally effected in a riotous manner, nor should it be attended with a breach of the peace ; but, although a forci- ble entry were made, and the party might be liable to an indict- ment for such breach of the peace, yet, unless some actual injury were committed to the person or property of the original wrong-doer, he could not sustain any civil action in respect of the forcible manner of regaining the wife, child or apprentice. If the recaption be resisted by force, the proper mode of pro- cedure will be to apply for a writ of habeas corpus. § 3. Recaption of personal property. The same general prin ciples govern this case as in those last referred to. In many OF RIGHTS, REMEDIES AND ACTIONS. 59 cases a recaption of personal property may be the best, or indeed the only remedy, as when one joint tenant, or tenant in common, takes a chattel and assumes the exclusive possession, in which case no action at law would lie, and, therefore, the only remedy would be for the co-owner to retake the possession. If a party has been wrongfully dispossessed of his personal property, he may in general justify the retaking of it from the house and custody of the wrong-doer, even without a previous request to re-deliver it ; for the violence which happens through the resistance of the wrongful taker being attributable to his own tortious act, deprives him of any right to complain ; and the owner of personal property may retake the same, with a moder- ate degree of force, from a person wrongfully refusing to deliver the same up to him. Burridgey. Nicholetts, 6 H. & N. 389. See Blades v. Higgs, 1 1 H. L. Gas. 621 ; Smith v. Wright, 6 H. & N. 821. But in this recaption, care must be observed to avoid any personal injury, in any forcible entry or breach of the peace, and if either be anticipated, then the owner of the goods should re- plevy them, or resort to an action, rather than subject himself to a proceeding for the personal injury, or an indictment for a breach of the peace. If the personal property was not originally illegally seized, but is merely wrongfully detained, then the owner must first request a re-delivery, and he cannot justify more than gently laying his hands on the wrong-doer in order to recover it ; nor can the owner, without leave, enter the door of a house of a third person, not privy to the wrongful detainer, or take the goods therefrom ; and the same doctrine extends to the land of a third person. Patrick v. ColericTc, 3 M. & W. 486 ; Anthony v. Haneys, 8 Bing. 186. Another general rule is, that the natural right of recaption should never be exerted where such exertion would occasion strife and bodily contention, or endanger the peace of society, The right of retaking goods fraudulently purchased, but not paid for, or of stopping them in transitu, is of the same general nature. See 1 Chit. Gen. Pr. 645. § 4. Recaption or re-entry on real property. As recaption ia a remedy given to the party himself for an injury to his personal property, so a remedy of the same kind for an injury to real property is sometimes permitted by entry on lands and tene- ments, when another person without any right has taken or retains possession thereof. This depends in some measure on 60 OF EIGHTS, REMEDIES AND ACTIONS. like reasons as the former ; and like that, too, must be peaceable and without force or violence which might endanger the public peace. There is some nicety required in defining and distinguish- ing circumstances in which such entry might be lawful or other- wise, and especially in determining whether notice should be given before re-entry and eviction to the person who is wrong- fully in possession. 3 Broom & Had. Com. 5; id., vol. 2, p. 4, Wait's ed. If the owner enters by force he may be indicted for a breach of the peace, but he will retain the lawful possession of his estate, and the original wrong-doer cannot maintain a civil action for such regaining of the possession, so far as it regards any alleged injury to the house or land, or for the expulsion. Willard V. Warren^ 17 Wend. 257; Winter v. Stevens, 9 Allen (Mass.), 526 ; Krevet v. Meyer, 24 Mo. 107 ; Newton v. Harland, 1 M, & Gr. 644 ; Harvey v. Brydges, 14 M. & W. 437 ; 1 Exch. 261. The party thus turned out may, however, maintain an action for any unnecessary personal injury which he may have sustained, or for any damage to his furniture which could have been avoided. And he may, in some cases, resort to proceedings under the statute relating to forcible entries and detainers. Peo- ple ex rel. Kearney v. Carter, 29 Barb. 208 ; People ex rel. Gault V. Van Nostrand, 9 Wend. 50 ; Jackson d. StansburyY. Farmer, id. 201. But he cannot maintain this proceeding if he has no right of possession of such premises. People ex rel. Cooper v. Fields, 1 Lans. 222; S. C, 58 Barb. 270 ; People ex rel. MoInroyY. Reed, 11 Wend. 157. Upon the question of a right to maintain pro- ceedings for a forcible entry and detainer in such a case, the authorities are not entirely in harmony. ARTICLE X. ABATEMENT OF NUISAIS'CE. Section 1. In general. Another species of remedy by the mere act of the party injured is the abatement or removal of a nui sance. It may be observed, generally, that whatsoever unlaw- fully annoys or does damage to another is a nuisance, and such nuisance may sometimes be abated, that is, taken away or removed, by the party aggrieved thereby, provided he doea not commit any riot in doing it. Nuisances may be public or private. A public or common nuisance is such an inconveni- OF RIGHTS, REMEDIES AND ACTIONS. 61 ence or public offense as annoys the whole community in gene- ral, and not merely some particular person. A private nuisance is any thing unlawfully and tortiously done to the hurt or annoyance of the person, or of the lands, tenements or hereditaments of another. § 2. Prirate nuisances. The reason why the law allows the abatement of a nuisance, private or public, by any individual annoyed b}^ it, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary fonns of justice. To enumerate, in this place, the instances in which a party may abate a private nuisance, is not intended, but merely to state some of the general rules recognized by law, and to be obsei-ved by the parties resorting to this mode of relief. Where a nuisance was occasioned by the tortious misfeasance or malfeasance of another, the party thereby injured ma}^, in general, abate the nuisance immediately, and without any pre- vious notice or request ; but if the nuisance be merely continued by a party who did not erect it, or when it consists in the omis- sion of a party, he ought to be requested to remove it before tho party injured can himself remove the injury ; for nuisances, by an act of commission, are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them. Jones v. Wll Hams, 11 M. & W. 176. But the law does not sanction the abatement by an individual of nuisances from omission, except that of cutting branches of trees which overhang a public road or the private property of the person who cuts them ; or remov- ing obstructions from a public highway, where special injury is done to the party so abating it. Northrop v. Burrows^ 10 Abb. 365. See, also, Rogers v. Rogers, 14 Wend. 131 ; Grvjjith v. McCullum, 46 Barb. 561 ; Howard v. RohMns, 1 Lans. 63. In removing a private nuisance, care should be taken not to abate more or to go further than to restore the party injured to the enjoyment of his right as it existed before the nuisance was created ; for, if a party goes beyond this, and unnecessarily injures or destroys the property constituting such nuisance, he will be guilty of an illegal act. lb. See 1 Wait' s Law & Prac. 748 to 754. A house which is wrongfully built upon a common, and which obstructs the right of common, may, after notice and request by a commoner to remove from the house, be pulled down, although 62 OF RIGHTS, REMEDIES AND ACTIONS. the builder and his family were actually inhabiting and present in the house. Dames v. Williams, 16 Q. B. 546. See Perry v. FitzTioioe, 8 id. 757. So of a person who enters upon the lands of another, and unlawfully builds a house. Burling v. Read^ 11 Q. B. 904 ; Damson v. Wilson, id. 890. § 3. Public nuisances. Private citizens are permitted, in many cases, to abate public nuisances without the interposition of any legal authority. It is clear that any one may, in some cases, justify the removal of a common nuisance, whether on land or on water. If a gate or wall be erected across a public highway, so as to constitute a common nuisance, then any person passing along such highway may tear it down or destroy it if necessary to restore the highway to its proper condition for his passage along it. Northrop v. Burrows, 10 Abb. 365. But he cannot lawfully do any needless injury to such property, even though it be in a public highway, for if he wantonly or unnecessarily destroys it he will be liable to an action. Rogers v. Rogers, 14 Wend. 131 ; Goldsmith v. Jones, 43 How. 415 ; Strickland v. Woodworth, 3 N. Y. S. C, T. & C, 286. A fence so built as to encroach upon a public highway is a public nuisance, and yet, if there is sufficient room for persons to travel along such highway, it will be an unlawful act for a traveler or other person to remove or destroy such fence. Gi'if- fith V. McCullum, 46 Barb. 661; Harroioer v.Ritson, 37 id. 301; Peckham v. Henderson, 27 id. 207; Howard v. Rohhins, 1 Lans. 63. It is not every nuisance that may be removed by a private person, for although a fence is so far an encroachment upon a public highway as to constitute a public nuisance, yet an indi- vidual cannot lawfully remove it unless it prevents his passage along such highway. lb. Dimes v. Petley, 15 Q. B. 276; Bridge V. Grand Junction Railway Co., 3 M. & W. 244 ; Dams v. Mann, 10 id. 548; Mayor of Colchester v. Brooke, 7 Q. B. 339; Bateman v. Bluck, 18 'id. 870; Roberts v. Rose, 3 H. & C. 162 ; L. R., 1 Ex. 82. ARTICLE XI. DISTRESS AND SEIZURE OF CATTLE. Section 1. In general. The taking of cattle or chattels, as a di» tress, whether damage feasant or for rent, where that is permitted, or for other claims, is also one of those remedies permitted by law. See 1 Wait's Law and Prac. 788 to 791. § 2. Damage feasant. When the animals of one person unlaw fully go upon the lands of another person and there do damage^ OF RIGHTS, REMEDIES AND ACTIONS. 63 as by treading down the grass, grain or other productions of the earth, the owner of such land may unlawfully seize such ani- mals instead of bringing an action for the, trespass. This remedy exists at the common law, but it is frequently modified or regu- lated by statutes. See 2 R. S. 517 to 521. Some of the rules to be observed in pursuing this remedy will be briefly noticed. If a party elects to distrain cattle or chattels damage feasant, he must follow strictly the course pointed out by the statute. No one ought to distrain cattle damage feasant unless he has the legal title or the right to the possession of the land upon which they are found. The remedy by distress, given by the statute, is cumulative, and the distrainer may, if he pleases, pursue the common-law remedy by action of trespass. Before making a distress, the party should consider whether the trespass was not justifiable by reason of his own omission to keep his fences in repair. The cattle must be taken while actually upon the land and in the very act of doing damage, and not after it is over, or at least not after they have escaped from the land, even though the owner of the land was pursuing them, and the owner of the cattle drove them off for the purpose of preventing the distress. A horse cannot be distrained if there be a rider upon him at the time. Storey v. Robinson^ 6 Term. R. 138. Nor can a horse and cart be so taken, if, at the time of distraining them, they are in the actual possession, care and use of the party driving them. Field V. Adames, 12 Ad. & E. 649. The cattle taken cannot legally be impounded after an ade- quate tender of amends made before impounding. Again, the cattle distrained must not be beaten or wounded, or worked, or used. For, doing either of these acts would ren- der the party distraining liable to an action. The manner of disposing of a distress is pointed out in this State by statute. 2 R. S. 517 to 521. The statutes relating to cattle running in public highways wil] be found. Laws 1862, cL. 459 ; Laws 1867, ch. 814 ; Laws 1869, c: 424 ; Laws 1872, ch. 776. For some of the decisions upon the question see Rockwell v. Nearing, 35 N. Y. (8 Tiff.) 302 ; Campbell v. Evans, 54 Barb. 566 ; 45 N. Y. (6 Hand) 356 ; Fox v. JDuncTcle, 55 Barb. 431 ; 38 How. 136 ; Leamit v. Thompson, 56 Barb. 642; S. C. reversed, 52 N. Y. (7 Sick.) 62; McConnell\. Van Aerman, 56 Barb. 534; Squares v. Campbell, 41 How. 193. 64 OF EIGHTS, REMEDIES AND ACTIONS. ARTICLE XII. KETAINER, REMITTER AND LIEK. Section 1. Retainer. Retainer is the act of withholding what a party has in his hands by virtue of some right. An executor or administrator has, in some cases, a right to retain a debt or sum due him from the estate, or the testator or intestate. A sole executor may retain in those cases where, if the debt had been due to a stranger, the latter might have sued and recovered the sum of such executor, whether the debt were due to himself or due to him in right of another, or to another in trust for him. If there are several executors, and one of them has a claim against the estate of the deceased, he may retain it with or with- out the consent of his co-executors ; and if there are several creditors among the executors, each of the same degree, and the estate is insolvent, they may retain pro rata. The right of retainer may be exercised where the deceased was bound alone, where he was bound with others, and where the xecutor or the obligee is also executor of the obligor. As there is quite a diversity in the practice of different States and countries in relation to the priority of claims, there will be no attempt at an enumeration of them. Funeral expenses and physicians' bills usually have a preference over other claims. Where the nature of the claim is arbitrary and unascertained, as in the case of a claim for damages for a tort, there cannot be a retainer ; but, where the claim is for damages for the breach of a pecuniary contract, there may be a retainer, as there is a certain measure of damages. An executor is not bound to plead the statute of limitations against a just debt, and therefore that statute does not operate against his claim. In case the estate is insolvent, the executor's right to retain is limited by the rights of other creditors who are equally entitled with himself to payment. At common law a creditor obtained an advantage by obtaining the first judgment against an executor and, as an executor could not sue, he might retain his whole claim in preference to other creditors. This rule is abrogated in some of the States, and is in force in others. § 2. Remitter. This takes place when he who has the true property in lands is out of possession and has no right to enter without recovering possession in an action, but afterward has the freehold cast upon him by some subsequent, though of OF KIGHTS, REMEDIES AND ACTIONS. 66 course, defective title. In this case he is remitted or put back, by operation of law, to his ancient or more certain title. This right of entry which he has gained by a bad title is, ipso facto^ annexed to his own inherent good one, and the defeasible estate is utterly defeated and annulled by the instantaneous act of law. without his participation or consent. The reason assigned for this rule is, that, being so remitted, the owner has no means of asserting his title, because, being in possession, he cannot sue himself, and, to prevent his loss, the law places him in the same situation as if he had established his right by action or suit. But, to enable the owner of the land to take advantage of this principle, the title must be cast upon him by the law, as by descent ; for, if he undertakes to buy the subsequent estate or right of possession, he is considered as having waived his prior right, and therefore he is not remitted. Whenever this right of remitter exists, it takes place regardless of the will or intention of the party benefited. He is remitted nolens volens. But there is no remitter to a right which is extinguished, or for which the party has no right of action, as in the case of a claim barred by the statute of limitations. See Doe d. Daniell v. Woodroffe, 10 M. & W. 608 ; 15 id. 768 ; 2 H. L. Gas. 811. § 3. Lien. A lien, when considered as a remedy in the hands of the party, may be defined as the right of detaining the prop- erty of another until some claim is satisfied. There may be liens which arise by operation of law, or which are created by the ex- press agreement of the parties. A right to retain property in respect of monej'- or labor expended on some particular prop- erty is a particular lien. A general lien is one which binds all the ])roperty of the debtor which may happen to be in the hands of his creditor. The general rule is, that a party, who is in posses- sion of property by virtue of a valid lien, may retain the posses- sion until liis claim is paid. This claim may be lost or waived by any act of the parties by which it may be surrendered or become inapplicable. In general, possession is not only essential to the creation, but also to the continuance, of the lien; it may, therefore, be lost by voluntarily parting with the possession of the goods. The right of the holder of tlie lien is generally confined to the mere right of retainer. Whether an authorit}^ to sell exists, is a matter to be carefully examined before exercising any such power. In some cases a court of equity will decree a sale to satisfy such lien. See " Lien." Vol. I. —9 66 OF RIGHTS, REMEDIES AND ACTIONS. ARTICLE XIII. KEDKESS BY JOINT ACTS OF THE PARTIES. Section 1. In general. There are two remedies which may I* Becured by the joint act of both parties, and thus obviating the necessity for an action. One is by an accord, and the other by arbitration. These will be briefly noticed in their order. § 2. Accord. An accord is the settlement of a dispute, or the satisfaction of a claim, by an executed agreement between the party injuring and the party injured. Some of the requisites of an accord are the following : It must be legal; it must be ad- vantageous to the party claiming the performance of a contract, or damages for an injury; it must be certain; the defendant must be privy to the contract, as an accord from a stranger is not suffi- cient; the accord must be executed, for until then it is no satis- faction; the acceptance of a collateral thing of value is a good satisfaction; so is a mutual agreement to discontinue two cross- actions. An agreement to pay a less sum of money in discharge of a larger money debt is not a good accord, unless the money is paid before the larger sum was due, or at a different place. The effect of a valid accord and satisfaction is to discharge the claim made, and to bar any future action upon it. See 1 Wait' s Law and Prac. 1036 to 1042, and see "Arbitration." § 3. Arbitration. An arbitration is a submission and reference of a matter in dispute concerning property, or in relation to a personal wrong, to the decision of one or more persons, called arbitrators, who are to render a judgment thereon, called an award. The general subject of arbitrations will be explained elsewhere and the subject will be dismissed, with the general re- mark, that a valid submission and a proper award thereon will bar any action upon the claim submitted and passed upon. See 1 Wait's Law and Prac. 1011 to 1036 ; and see "Arbitration." ARTICLE XIV. REDRESS BY OPERATION" OF LAW. Section 1. In generaL A part of the remedies of this nature have already been noticed under another head. See Retainer ; Remit- ter ; Lien. § 2. Set-off. The right of a party to set off his demand against the claim of another person against him did not exist at common OF RIGHTS, REMEDIES AND AOTICNS. m law. The principle of set-off is, that when one man has a v.laim for a sum of money against another, and is also indebted to him, he may consider his claim to be a discharge or extinguishment of his debt, if it be equal in amount, or pro tanto, if unequal. This rule is founded upon reason and justice, and it tends to prevent the unnecessary multiplication of suits with their attend- ant inconveniences and costs. 4-S the subject of set-off will be fully explained in this work, no further notice is here necessary, except to state that the right, as it now exists, is founded upon various statutes. See, also, 1 Wait's Law and Prac. 966 to 979, and "Set-off." j5 3. Marriage of deMor and creditor; By the common law, if a woman married her creditor or her debtor, in either case the debt was absolutely extinguished. No discussion of this matter is to be expected here, as the mere mention of it will call atten- tion to this subject, which is all that is needed. ARTICLE XV. CACTIOXS IX RELATIOX TO RESOETIXG TO THESE REMEDIES WITHOUT ACTIOX. Section 1. In general. It is to be remembered that although the law allows an extrajudicial remedy, yet that remedy is not compulsory, and does not exclude the ordinary course of justice; it is only an additional weapon put into the hands of persons in particular instances, when natural equity or the peculiar circumstances of their situation require a more expedi- tious remedy than the formal process of a court of judicature can furnish. In many cases the party may resort to both remedies. A party who is assaulted may defend himself from violence and yet may afterward bring his action for the assault. A person may retake his goods in a fair and peaceable way, and the recaption does not bar his subsequent action, although the return may mitigate damages. A party may enter on lands, if he has a right of entry, or may demand possession by action. So he may abate a nuisance or call upon the law to do it for him. There is one general consideration which ought always to be borne in mind, and that is, there are cases in which a resort to these remedies, by the act of the party, will bar him from bringing a Bubsequent action for the same subject-matter. As this title was designed to be a mere statement of general rules for the information of the student, and for the convenience of the practitioner, rather than a treatise upon the topics men- 68 OF RIGHTS, REMEDIES AND ACTIONS. tioned, the reader will be required to examine the other parts of this work whenever it may become important to examine the law applying these rules to any particular case. TITLE IX. OF EXTEAOKDINARY EEMEDIES WHICH ARE NOT USUALLY TERMED ACTIONS. ARTICLE I. OF MANDAMUS. Section 1. In generaL The writ of mandamus has long been an efficient mode of enforcing the prompt discharge of duties by natural persons, corporations, or inferior courts, by requiring them to do some particular thing specified in the writ which per- tains to their office or duty. It is, in some cases, one of the most valuable remedies that the law has placed in the hands of the courts. The cases in which the writ will be granted or refused will be fully discussed in a subsequent place in this work. See Mandamus ; see, also, 5 Wait's Prac. 548-602. ARTICLE II. OF IKJUNCTIONS. Section 1. In general. An injunction may be defined as a judicial writ or order, commanding a party either to do a particular thing or to refrain from doing a particular thing according to the equities of the case in which it is employed. It is, in general, a prohibitory writ or order, issuing from the equity side of the court, restraining a party or parties from doing, in person or by agent, any act which appears unjust or inequitable so far as it regards the rights of the party in whose behalf the writ or order issues. See the title "Injunction," and also, 2 Wait's Prac. 1-128. ARTICLE IIL OF PROHIBITION. Section 1. In general. An injunction, when granted to restrain proceedings in another court, resembles, in some particulars, a writ of prohibition, but difi'ers from it essentially in the mode >f application. OF RIGHTS, REMEDIES AND ACTIONS 69 A prohibition is a remedy against an encroachment of juiis-s diction ; issues only from a superior court ; is granted on the suggestion that the court to which it is directed has not the legal cognizance of the cause ; and it is directed to the judge of the inferior court, as well as to the parties to the cause. See title "Prohibition," also 2 Wait's Prac. 1, and 5 id. 603-612. ARTICLE IV. OF QUO WAEEANTO. Section 1. In general. This writ is issued for the purpose of inquiring by what right a person or a corporation claims an office or a franchise. See further, title " Quo Warranto," and also 6 Wait's Prac. 613-682. ARTICLE Y. OF CEETIOEARI. Section 1. In general. In this State the^writ of certiorari is both a common-law and a statutory process. See 5 Wait's Prac. 455-500, and title " Certiorari." ARTICLE YI. OF IXTEEPLEADEE. Section 1. In general. Interpleader is that remedy which is given to a person standing in the position of a mere stakeholder, against whom two or more persons severally make claim for the same thing, under different titles, or in separate interests ; and who, not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflict- ing claims of the parties ; and who, therefore, applies to the court, not only to protect him from being compelled to pay oi deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits, which are, or may be, instituted against him upon the deposit in court of the thing claimed. ' See, further, 1 Wait's Prac. 165-180 ; and, also, posi^ title "Interpleader." 70 GENERAL PRINCIPLES OF CONTRACTS. CHAPTEE II. OF SOME OF THE GENERAL PRINCIPLES OF THE LA'V^ RELATING TO ACTIONS FOUNDED UPON CONTRACT, UPON EQUITIES, UPON LEGAL DUTIES, OR UPON TORTS : OR RELATING TO DEFENSES TO ACTIONS. TITLE I. OF SOME OF THE GENEEAL PEINCIPLES OF CONTRACTS. ARTICLE I. DEFINITION". Section 1. In general. A contract is a deliberate engagement between competent parties, upon a legal consideration, to do, or to abstain from doing, some act. 1 Story on Cont., § 1. "A con- tract, in legal contemplation, is an agreement between two or more parties, for the doing or the not doing of some particular thing." 1 Pars, on Cont. 6. The essentials of a contract, as stated by Comyn, are, 1st. A person able to contract ; 2d. A person able to be contracted with ; 3d. A thing to be contracted for; 4th. A good and sufficient consideration ; 5th. Clear and explicit words to express the contract; 6th. The assent of both contract- ing parties. These general views may be thus expressed. A contract is an intelligent, deliberate, and voluntary transaction or agreement, express or implied ; founded upon a sufficient legal consideration ; between two or more parties legally compe- tent to contract ; to do or to omit the doing of some legal act or thing, expressed in the terms of the agreement, or implied by or resulting from them by implication of law. See 1 Chit, on Cont. 11. Every contract includes a concurrence of intention between two parties, one of whom promises something to the other, who ^n his part accepts such promise ; but it does not necessarily include a mutuality or reciprocity of contract and liability. There must be at least two parties to every contract, a promisor or party making the promise, and a promisee or party to whom GENERAL PRINCIPLES OF CONTRACTS. 71 the promise is made ; but there may be only one contracting party. Thus, if A. promises to pay B. the price of goods to be sold by the latter to C., B. contracts no obligation to sell goods to C, though, if he does, the liability of A. attaches, and his engagement becomes absolute and binding. Add. on Cont. 2. And where, by the terms of an agreement between A. and B., in consideration that A. will pay certain notes upon which he is an indorser, B. agrees to pa}^ him a certain sum, although there be nn obligation upon A. to pay the notes, and therefore no mutual- ity in the contract, yet if he does pay them, he furnishes a con- sideration for the agreement and may enforce it against B. li Amoreux v. Gould, 7 N.Y. (3 Seld.) 349 ; Sanders y. Gillespie^ 69 id. (14 Sick.) 250. Where a merchant agrees, that, if a pur- chaser will buy goods of him, he will sell them to such purcha- ser at as low prices as he, the merchant, sells the same goods to other buyers ; and, on the faith of such promise, the purchaser buys large quantities of goods and pays the prices named by such merchant, who has sold similar goods to other buyers at lower prices, an action will lie by such purchaser to recover the amount overpaid, even though the purchaser did not agree to purchase any goods of such merchant. Holtz v. Schmidt, 59 N. Y. (14 Sick.) 253. Such a promise, although invalid when made, for want of mutuality of obligation, will still become valid and binding upon a performance by the promisee of that in consid- eration of which such promise was made. Willetts v. Sun Mu- tual Ins. Co., 45 N. Y. (6 Hand) 45; 6 Am. Rep. 31; Adams v. Honness, 62 Barb. 326; Hammon v, SJiepard, 40 How. Pr. 452 ; 29 id. 188; Cope v. Alhinson, 8 Exch. 185, 187, note. When there is a mutual contract binding one or more persona toward another or several others, the contract is bilateral. When the contract binds one person to another without any engagement being made by the latter, it is uailateral, as in the case of bills and notes, bonds, and the like. Contracts, also, are either principal or accessorial; the first, are those which are entered into by the parties on their own account ; the second, are those which are entered into for assuring the performance of another principal contract, such as guarantees or engagements of sureties. Add. on Cont. 2. In its widest sense the term " contract" includes records and specialties, but the term is usually employed to designate simple or parol contracts only. By parol contracts is to be understood, not only verbal and unwritten contracts, but all contracts not of record nor under seal. 1 Story on Cont, § 1; I Chit, on Cont. 5. 72 GENERAL PRINCIPLES OF CONTRACTS. ARTICLE IL CF THE DIFFERE]!q"T KINDS OF CONTRACTS, AND OF THEIR REQUISITES. Section 1. Of contracts of record. Contracts of record con sist of judgments, recognizances, and statutes staple. § 2. Of sealed contracts or specialties. Contracts or obliga tions under seal, or specialties, such as deeds and bonds, are instruments which are not merely in writing, but are also sealed by the party to be bound by them, and delinered by him to, or for the benefit of the person to whom the liability is there- by incurred. Neither a date, nor, at common law, even the signature of the party is essential to the validity of a deed. 1 Chit, on Cont. 4. But there cannot be a deed without writing, sealing, and delivery. lb. § 3. Of simple or unsealed contracts. The term simple con- tracts includes not merely such as are verbal, but also such as have been reduced to writing, though not sealed and delivered. The law does not recognize a class of contracts, known as con- tracts in writing, and distinct from verbal and sealed contracts ; since both verbal and written contracts are included in the class of simple contracts. In other words, all contracts are distin- guished as agreements by specialty, or by agreements by parol, and there is no such third class as contracts in writing. If the contract is merely written, but not under seal, it is a contract by parol, and it has the efficacy, properties, and effect of a parol contract. The difference, therefore, is not between verbal and written contracts ; but between parol or written contracts on the one hand, and specialties or contracts under seal on the other. Some contracts are required by statute to be reduced to writ- ing, and to be signed or subscribed by the party to be charged thereon, and yet such a requirement relates rather to the mode of evidencing the contract, than to its essential requisites as a valid contract. The mere fact that a contract is written and signed does not dispense with any of the common-law requisites of a contract. There must still be competent parties, a sufficient consideration, and the due assent of the parties. § 4. Of express or implied contracts. The intention of the parties to any particular transaction may be gathered from their acts, in connection with the surounding circumstances, as well as from their words : and the law therefore implies, from GENERAL I'RINCIPLES OP CONTRACTS. 73 the silent language of men's conduct and actions, contracts and promises as forcible and binding as those that are made by ex- press words, or through the medium of written memorials. Every contract is founded upon the mutual agreement of the parties; and that agreement may either be formally stated in words, or committed to writing, or it may be a legal infeience, drawn from the circumstances of the case, in order to explain the situation, conduct, and relation of the parties. When the agree- ment is formal, and stated either verbally or in writing, it is usually called an express contract. When the agreement is matter of inference and deduction, it is called an WLplied contract. Both species of contract are, however, equally founded upon the actual agreement of the parties, and the only distinction between them is in regard to the mode of proof, which belongs to the law of evidence. In an implied contract, the law only supplies that which, although not stated, must be presumed to have been the agreement intended by the parties. An implied contract is one which reason and justice dictate, and which the law presumes, therefore, that every man under- takes to perform. And in implied contracts, the law implies from the antecedent acts of persons, what their obligations are to be ; whereas, if an express contract is made, the parties them- selves thereby define or assume to define them. In implied con- tracts, however, the law does not vary or introduce new terms into an existing contract or agreement ; it merely declares, that particular acts, unaccompanied or unexplained by express stip- ulations, give rise to particular duties or liabilities ; and it then proceeds as though the parties had precisely and expressly stipulated for their performance. Sceva v. True, 53 N. H. 627, 632, 633. The idea of contract implied bylaw is a legal fiction, invented and used for the sake of the remedy, to enforce the performance of a legal duty. lb. " A great mass of human transactions depends upon implied contracts ; upon contracts which are not written, but which grow out of the acts of the parties. In such cases the parties are sup- posed to have made those stipulations, which, as honest, fair, and just men, they ought to have made. When the law assumes that they have made these stipulations, it does not vary their contract, or introduce new terms into it, but declares, that certain acts, unexplained by compact, impose certain duties, and that the parties had stipulated for their performance." Marsh A.LL, Vol. I. — 10 74 GENERAL PRINCIPLES OF CONTRACTS. Ch. J. Ogden v, Saunders, 13 Wheat. 341. See, also, United States V. Russell, 13 Wall. 623, 630. But, while the law will thus imply a promise in a proper case, it must be remembered that the law will not imply a promise when there is an express agreement upon the subject, whether such agreement be verbal or in writing. Harris v. Story, 2 E. D. Smith, 364 ; Lynch v. Onondaga Salt Co., 64 Barb. 558 ; Vandekarr v. Vand-eliarr, 11 Johns. 122 ; Walker v. Brown, 28 111. 378 ; Creighton v. City of Toledo, 18 Ohio St. 447. A few illustrations will serve to show the nature of the cases from which the law is said to imply a promise. On the purchase of goods, upon which no price is hxed, the law implies that the buyer will pay a reasonable price for them. Upon a sale of chattels by one who is in possession of them, but who is not the owner, the law implies a warranty of title on the part of the seller. So if a mechanic agrees to do a specified piece of work, the law implies that he will e:5*rcise due care, skill and dispatch in its perform ance. If a surety signs the bond of his principal at his request, there is an implied contract on the part of the principal that he will indemnify the surety, if he is compelled to pay the bond. This subject will be further discussed under the title Assumpsit, and other appropriate titles. § 5. Of executed, and of executory contracts. A contract may be executed or executory. An executed contract is one in which the object or subject-matter of the contract is performed ; or in other language, it is a contract in which nothing remains to be done by either party, and where the transaction is completed at the moment that the agreement is made ; as where property is sold and delivered, and payment therefor is made on the spot ; or where A agrees to exchange horses with B, and they make the exchange immediately. A contract is executory when some future act or thing is to be done, and while it is unperformed on the part of one or of both of the parties. If A and B agree to exchange horses next week, and it is agreed to postpone the exchange or delivery until that time, the contract is an executory one. So of an agreement to build a house in a year, or to do some other act on or before Bome future day. A contract may be executed as to one of the parties, while it is executory as to the other ; as, for instance, where one pur- chases goods which are delivered at the time of the sale, but the time for payment is postponed ; or where the wages for specified work are paid before the work is done. GENERi\L PRINCIPLES OF CONTRACTS. 75 A right of action may be founded upon an executory con- tract, if the party bound neglects or refuses to perform the agree- ment, unless there is some legal excuse for such neglect or refusal. So a right of action may be founded upon an executed contract ; as, for instance, in the case of a sale or an exchange of property, which is delivered ; for if there was a warranty made which has been broken, or a fraud committed, on such sale or exchange, the party injured has a remedy by action. Although it may appear to be an easy matter to determine whether a given contract is an executed or executory one, it will be found that some very difficult questions have arisen upon this point, especially in relation to contracts of sale, under which title the subject will be fully discussed. § 6. Of entire and divisible contracts. A contract may be entire, or it may be divisible. An entire contract is one the con- sideration of which is entire on both sides. A full performance of the contract by either of the parties, in the absence of any agreement to the contrary, or of any waiver thereof, is a condi- tion precedent to a compulsion of the fulfillment of any part of the contract by the other party. The cases in which this rule has been applied and enforced are very numerous. A contract for the sale and delivery of a specified quantity of personal prop- erty at an agreed price, and time of payment, requires a full per- formance by the delivery or tender of the entire quantity to the purchaser. So, an agreement to work for a specified length of time for a fixed compensation, will not be performed so as to entitle the laborer to recover pay for any part of the work until the entire work is done. In all such cases, in which there is an express contract to de- liver a particular quantity of property, or to render specified ser- vices, before the payment of the price agreed, there must be a full performance before payment can be required in whole or in part ; and the difliculty, or even the impossibility of the perform- ance is, in general, no excuse for the non-performance. To this rule there are some exceptions which will be noticed in their proper place and connection. See " Performance." In the case of sales it is sometimes difficult to determine whether the contract is entire or several, as may happen where several diff'erent articles are sold at one time. The general rule seems to be that upon the sale of different articles for separate prices at the same time, the contract is several as to each article sold, unless the acts of the parties, or the nature of the subject- 76 GENERAL PEINCIPLES OF CONTRACTS. matter, renders it necessary to consider the whole sale as an entire transaction. If the contract is regarded as entire, neither party can rescind it in part and enforce it in part, and, on the other hand, each party is liable for the entire consideration or for no part of it. An entire contract may be apportioned if the parties consent, whether such assent be express or implied ; and, in such case, the excess of consideration advanced may be recovered back. So there may be a waiver as to the performance at the time speci- fied if both parties so agree, or if the party entitled to demand performance consents to waive it. Where the non-performance of a contract is caused by the party who is entitled to claim it, he will be regarded as agreeing to treat the contract as divisible, and the other party may recover for so much of the contract as he has performed. § 7. Of contracts absolute or conditional. Contracts may be conditional, or may be absolute. An absolute contract is merely an agreement to do or not to do a specified act or thing, in any or all events. A conditional contract is an executory one, and its performance depends upon a condition. It differs from a mere executory contract, since that may be an absolute agree- ment to do or to omit the doing of some act or thing ; while a conditional agreement is one whose very existence and perform- ance depend upon a contingency and a condition. Conditions may be either precedent or subsequent. A condi- tion precedent is one which must happen before either party becomes bound by the contract. A condition subsequent is one which follows the performance of the contract, and operates to defeat and annul it, upon the subsequent failure of either party to comply with the condition. A condition may be of such a nature that its operation may be either precedent or subsequent. If no time is fixed by the contract for the performance of a con- dition, the rule is, that it must be performed within a reasonable time. See Non-performance, etc. § 8. Of joint and several contracts. Contracts may be joint and several, or they may be joint or several. Where an obliga- tion is undertaken by two or more persons, or a right is given to two or more, the general legal presumption is that it is a joint obligation, or a joint right, as the case may require. Where the subject-matter of the contract is entire, as where the contract ia to pay an entire sum to several persons, it is solely a joint con- tract, and no one of the persons can maintain a separate action GENERAL PRINCIPLES OF CONTRACTS. 77 for his share. If, however, the contract be to pay to each person a specific sum, or to perform distinct and separate duties to each, the contract may be considered as several. In the absence of a written contract, and where the agreement is one of implication from the subject-matter and the circum- stances of the case, the nature of the consideration will furnish a good criterion by which to determine whether the contract is joint or several. If the consideration is entire and single, although it moves fro^^ " -^veral persons jointly, the construction will be joint. While on the other hand, if there are several dis- tinct considerations moving from each of the persons individu- ally, the contract will be several. ARTICLE III. OF THE PARTIES TO CONTRACTS. Section 1. Of contracts made in person. It is a general rule of law that all persons may be parties to a contract, unless they are incompetent by reason of a personal disability, or from consid- erations of public policy. In every contract there must, of necessity, be at least two par- ties ; one who is bound to perform the contract, and the other who is entitled to have it performed. A very large proportion of the contracts which are made, are executed by the parties in person. But, when this is not the case, and the contract is made by an agent, the law still treata it as the act and contract of the principal, who is entitled to the advantages, as well as bound by the liabilities imposed by such contract. In those cases in which one or both of the parties are not natural persons, but are legal bodies or parties, such as corpora- tions, joint-stock companies, and the like, the act of executing the contract must be that of an officer or agent of the corpora- tion or company ; and in this case, as in that of a natural per- son acting by sm agent, it will be the contract of the principal. § 2. Of contracts by agents. When a person who is competent to do an act himself, employs another to do it, the employer is called the principal, the person employed is called an agent, and the relation between the parties is termed an agency. Whatever a person may lawfully do in his own right, he may, generally, do by an agent ; and, therefore, every person may be a principal, if of full age, if not legally or actually disabled. There are few persona 78 GENERAL PRINCIPLES OF CONTRACTS. who are excluded from acting as agents, or from exercising an authority delegated to them by others ; and, therefore, it is not necessary for a person to be able to act in his own right in order to enable him to act for others. And any person may be an agent, if he is not actually disabled by weakness of mind, or want of understanding. Legal disability to enter into a contract will not incapacitate a person from becoming or acting as an agent. Thus, for example, infants, married women, persons attainted or outlawed, slaves, or aliens, may be agents for others. The form of executing an agent' s authority will be hereafter explained. See Agency. § 3. Of contracts by partners. In relation to contracts made by a partnership, the general rule is that the act or contract of one partner with reference to, and in the ordinary course and management of the partnership business and affairs, is, in point of law, the act or contract of the whole firm, and binding on them, even though it violates some private arrangement between the partners. The nature of the partnership, and the rights, powers, and duties will be hereafter discussed. See Partnership. § 4. Of contracts Iby executors and administrators. It is a gen- eral rule that a personal representative is not liable in that char- acter, upon the contract of his testator, except to the extent of the assets come to his hands, which are applicable to the pay- ment, in a due course of administration, of the debt sought to be recovered. The cases in which an executor or administrator will become personally liable to pay the testator's debts, and the instances in which their contracts will bind the estate will be further explained elsewhere. See Executors, etc. § 5. Of contracts by trustees. A trustee is bound to perform all those acts which are necessary for the proper execution of hia trust. He must preserve the trust property with the same care as though it were his own. But if it be lost, destroyed, or stolen, he will not be responsible, unless the loss occurs through the want of ordinary care and diligence. He is not, ordinarily, per- mitted to accept the bounty, nor to purchase the trust property from the cestui que trust, although there are exceptions to thia general rule, where such sale is open, and made in entire good faith. He ought to keep the funds in his hands safely invested, and he may make such contracts as are necessary to accomplish that purpose. Such funds ought to be secured on real estate, and not upon the personal credit of the debtor. For the general rights and duties of a trustee, see Trustee. GENERAL PRINCIPLES OF CONTRACTS. 79 § 6. Of guardian and ward. The general rules of law that apply to trustees govern the relation of guardian and ward. The guardian is a mere trustee in respect to the management of the ward's property. He may lease, but cannot sell the ward's lands. He cannot apply or employ the property of the ward to his own use or profit. And, generally, it may be said that all his acts relating to his ward's property are acts of agency, for which he is bound to account, and when he has committed waste, or been guilty of willful misconduct, or been wanting in ordinary diligence, he will be responsible for any resulting loss to his ward. See Guardian and Ward. § 7. Of contracts by or with corporations. A corporation aggregate is regarded in law as a person, and as having all the powers of a natural person in making or enforcing contracts. As a corporation is an artificial or legal person, as distinguished from a natural person, it follows that its acts must be performed by its officers or agents. As the rights, duties, and powers of corporations will be elsewhere treated, it will be sufficient to refer to the title Corporations. §8. Of joint-stock companies. The important part which these companies take in the business of the country requires a more extended discussion than can be here given. See Joint-Stock Companies. § 9. Of contracts by auctioneers. An auctioneer is a person who is authorized to sell goods or merchandise at public auction or sale for a compensation, usually termed a commission. His rights and duties differ from those of a broker in two respects ; for, in the first place, he cannot, as auctioneer, buy, either for himself, or for another person, the things he sells aa auctioneer ; and, in the second place, he cannot sell at private sale. An auctioneer is the agent of the seller of the goods until the sale is effected, and then, for some purposes, he becomes the agent of the buyer, so that in some respects he is treated as the agent of both parties. By knocking down the goods sold to the person who is the highest bidder, and inserting his name in his book or memorandum, as such, he is considered as the agent of both parties; and the memorandum so made by him will bind both parties, as being a memorandum sufficiently signed by an agent of both parties within the statute of frauds. See Auctioneer; Agency. § 10. Of contracts by brokers. A broker is an agent, employed to make sales, bargains or contracts between other persons, in 80 GENERAL PRINCIPLES OF CONTRACTS. trade, commerce, or navigation for compensation in tlie form of a commission, commonly called brokerage. He is a mere nego tiator between the other parties; he does not act in his own name, but in the names of those who employ him, or only as a middle- man. In buying or selling goods, he is not intrusted with the custody or possession of them, and is not authorized to buy or sell them in his own name. For further information, see Agency; Broker, § 11. Of contracts by factors. Factors and brokers are both agents, with this difference, however: the factor is intrusted with the property, which is the subject of the agency ; while the broker is merely employed to make a bargain in relation to it. The compensation of a factor is usually a commission, and he is frequently called a commission merchant, or consignee; while the goods received by him for sale are called a consignment. A factor differs from a broker in these respects; a factor may buy and sell in his own name; and he has the goods or merchandise in respect to which his agency is created in his possession, while a broker cannot buy or sell in his own name, and he has no posses^n of the goods sold. When a factor undertakes to guarantee to his principal the payment of the purchase-money or price of the goods sold by him, he is, on account of the risk he assumes, entitled to an additional compensation, which is called a del credere commis- sion. See further. Factors; Agency. § 12. Of contracts by shipmasters. A master of a ship has, by the policy of the law-merchant, some authority not usually implied in other cases of a general agency. So long as his agency lasts, the master of a ship has a general authority, grow- ing out of his official relation to the ship, to make all contracts incidental to her ordinary employment. Thus, he may hire sea- men for the voyage; he may, in some cases, if the exigencies and necessities of the case require it, borrow money, and pledge the ship for its repayment; he may let the ship on a charter- party, or take shipments on freight if such be her usual employ- ment, but not otherwise; and in some extreme cases he may sell the ship and cargo. See Navigation; Ships and Shipping. § 13. Of the change of parties by novation or substitution. The term "novation," which is borrowed from the civil law, signi- fies the substitution, with the agreement of all parties concerned, of one debt for another, or of one party for another. It has also been defined thus: a transaction whereby a debtor is discharged GENERAL PRINCIPLES OF CONTRACTS. 81 from his liability to his original creditor, by contracting a new obligation in favor of a new creditor, by the order of his original creditor. Thus, "if A. owes B. $100, and B. owes C. $100, and the three meet, and it is agreed between them that A. should pay G. the $100, B.'s debt is extinguished, and C. may recover that sum against A." Tatlock v. Harris^ 3 Term R. 180^ Blunt v. Boyd, 3 Barb. 209; Karr v. Porter, 4 Houst. (Del.) 236. The contract of novation somewhat resembles an executed assignment of a debt, with the consent of the debtor; but to avoid the effect of the legal rule that a chose in action is not assignable so as to give the assignee a right of action in his own name, it is treated as a new contract, of which the consideration is the convenience which results from the substitution of new parties. To constitute a strict novation according to the civil law, it is necessary that there should be an express assent of all parties, an express promise and acceptance between the new parties, and an entire relinquishment of all claim on, or responsibility to the original creditor. See Assignment. § 14. Of the change of parties by assignment. Any right under a contract, either express or implied, which has nc t been reduced to possession, is a chose in action,' and is so called be- cause it can be enforced against an adverse or unwilling party only by an action at law. The old common law prohibited the assignment of choses in action on the ground that by such trans- fers litigation would be encouraged and suits multiplied. An- other reason was, that no debtor should have a new creditor substituted for the original one, without his consent, since he might have substantial reasons for his choice of creditors. Under the old law, if a chose in action was assigned, and an action was brought in a court of law, the action must have been brought in the name of the assignor for the benefit of the assignee, unless the chose in action was a negotiable instrument properly trans- ferred, or the debtor had expressly promised, after the assign- ment, to pay the debt to the assignee. In courts of equity the technical common- law rule was disre- garded, and where there was a honafide assignment of a chose in action, for a valuable consideration, the assignee was permitted to maintain an action in his own name without any assent or promise upon the part of the debtor. In many of the States the old rules as to parties to actions have been abrogated or modi- fied, so that at the present time it is a rule very generally Vol. L — 11 82 GENERAL PRINCIPLES OF CONTRACTS. observed that an action brought upon any chose in action ought to be prosecuted in the name of the real party in interest. The form, mode and effect of an assignment of property or of choses in action will form the subject of a subsequent chapter. See Assignments. ARTICLE IV. OF THE ASSENT OF THE PAETIES TO A CONTRACT. Section 1. Of the capacity to assent. The law does not regard a contract as valid and binding unless it is founded upon an intelligent understanding of its terms, and a mutual assent of the parties ; and, whenever there is such a mental infirmity of either, or of both of the parties, as to render it impossible for them, or either of them, to justly understand or comprehend its terms, or the nature and effect of the assent given, the contract will be in- valid and cannot be enforced. No person can properly be said to assent that he will be bound, unless he is endowed with such a degree of reason and judgment as will enable him to compre- hend the subject of negotiation ; and, hence it is, that the assent which is requisite to give validity to a contract, necessarily pre-, supposes a free, fair, and serious exercise of the reasoning faculty; or, in other words, the power, both physical and moral, of deliberating upon and weighing the consequences of the engagement about to be entered into. If, therefore, either of the parties to an agreement is absolutely deprived of the use of his understanding ; or if he is deemed by law not to have attained to it, there can in such a case be no mutual agreement, and, con- sequently, no contract which will bind him. FitzliugTi v. Wil- cox, 12 Barb, 255 ; Wadsworth v. Sherman, 14 id. 169 ; Matter of Beckwith, 6 N. Y. S. C. (T. & C.) 18 ; 3 Hun, 443. The rule of law, therefore, which requires the assent of the parties to a contract, assumes that such assenting parties shall be com/peteni to contract ; and, accordingly, in order to there being a valid contract, a capacity to contract is absolutely neces- sary. But the law presumes that all persons possess this capacity tc contract; and, where exemption from liability to perform a con- tract is claimed on account of such want of capacity, this fact raust be clearly established by the person who claims the exemp- tion. And, besides this, it is only in particular cases that this kind of protection can be claimed; and, therefore, weakness of mind short of insanity; or immaturity of reason in one who has GENERAL PRINCIPLES OF CONTRACTS. 83 attained full age ; or the mere absence of experience or skill upon the subject of the particular contract does not, of itself, afford any ground of relief either at law or in equity. In some cases the incompetency to contract is general and abso- lute ; in others it is limited ; in some cases again the contract is void as against both the parties ; in others, only the incompetent or protected party can protect himself from liability upon it. It will not be necessary to discuss, in this place, the law in relation to the incompetency of particular persons, or as to the validity of contracts made under duress. In the subsequent pages of this work will be found a full discussion of these sub- jects. See titles like the following : Lunatics, Insanity, Idiots, Drunkards, Intoxication, Aliens, Infancy, Infants, Coverture, Married Women, Seamen, Bankrupts, Duress. ARTICLE V. WHAT CONSTITUTES A VALID ASSENT TO A COKTEACT. Section 1. Of assent. In generaL To constitute a binding con- tract the legal assent of the parties is absolutely indispensable ; and there are three requisites to such an assent ; it should be mutual ; it should be without restraint ; it should be understand- ingly made, and without error or mistake. To create a contract it is essential that there should be a reciprocal assent to a certain and definite proposition ; and the parties must assent to the same thing in the same sense. Suydam v. Clark, 2 Sandf. 133 ; Jenness V. Mount Hope Iron Co., 53 Me. 20, 23 ; Hartford & New Haven R. R. Co. V. Jackson, 24 Conn. 514. A mere proposal or offer which is not assented to does not con- stitute a contract, for there must be not only a proposal, but an acceptance of it, before there is a complete contract. White v. Corlies, 46 N. Y. (1 Sick.) 467 ; Stitt v. Huidekopers, 17 WaU. 384, 396 ; Washington Ice Co. v. Wehster, 62 Me. 341, 360. Where a proposition is made which is not accepted, but a modified acceptance is proposed, there is no contract unless the modified proposition is accepted by the party who made the first proposal. Jenness v. Mount Hope Iron Co., 53 Me. 20, 23 ; John- son V. Applehij, L. R., 9 C. P. 158 ; 43 L. J. C. P. 146 ; 22 W. R 615 ; Myers v. Smith, 48 Barb. 614 ; Hutcheson v. Blakeman^ 3 Mete. CKy.) 80; Baker y. Johnson Co., 37 Iowa, 186; Honeyman V. Marryatt, 6 H. L. Cas. 112; S. C, 21 Beav. 14. c^/)Ma^i 7 84 GENERAL PRINCIPLES OF CONTRACTS. A proposal by one party which is not accepted or assented to by the other, is not binding upon either ; and, at any time before acceptance, it may be retracted. Stitt v. Huidekojpers^ 17 Wall. 884, 396 ; Chicago & Great Eastern B. R. Co. v. Dane^ 43 N. Y. (4 Hand) 240 ; Crocker v. New London., Willimantic & Palmer M. R. Co., 24 Conn. 261. The validity of an agreement depends upon the fact that the parties thereto give their free and full assent to all its terms ; and, if there be any misunderstanding as to any material portion of it, there will not be any contract. But, this is to be under- stood, however, in relation to the fact that the parties know what facts or stipulations they are agreeing to, and not that they fully comprehend the effect or legal liabilities of their engagements. Where assent to an agreement is procured by fraud, the con- tract will be void at the election of the party deceived. See Fraud, as a defense. § 2. Assent liow affected by a mistake as to the law. It is a legal presumption that every person knows the law, when he knows the facts ; yet this presumption, though arbitrary, and in most cases untrue in fact, is founded upon principles of public policy ; for without some settled rule which imposes upon every person the duty of well considering and understanding the consequences of his own acts and contracts, there would be no limit to the excuse of ignorance, and no security in any agree- ment. Again, the opposite rule would encourage ignorance, and rob knowledge and sagacity of its fair fruits ; for, if a party could claim to set aside his contract on the ground that he was not acquainted with the legal rules governing it, it would be more safe to be ignorant than to be wise. It is a legal presumption, therefoi-e, that every man who makes a contract makes it advis- edly, and with a knowledge of its legal incidents and consequences; and, although this rule, like all arbitrary rules, works injury and injustice in some individual cases, yet it cuts a knot which cannot be untied by the law, and serves to give stability and certainty to the general transactions of commerce, which would otherwise be fluctuating and insecure. Whatever mistakes, therefore, a person may make as to the law relating to his con- tracts, they will be binding, unless some fraui or imposition has been practiced upon him. Fellows v. Hermans, 4 Lans. 230, 243, 244 ; Lanning v. Carpenter, 48 N. Y. (3 Sick.) 408 413 ; Wheaton V. Wheaton, 9 Conn. 96 ; Pinkham v. Oear, 3 N H. t63 ; Hub' GENERAL PRINCIPLES OF CONTRACTS. 85 hard v. Martin, 8 Yerg. 498 ; Jones v. WatMns, 1 Stew. (Ala.^ 81 ; Jacobs v. Morange, 47 N. Y. (2 Sick.) 57. There are cases which maintain a contrary doctrine. Laiorenc^ V. Beaubien, 2 Bailey (S.Car.), 623 ; Underwood v. Brockman, 4 Dana (Ky.), 309. A person is not presumed tc know the laws of a foreign country, and ignorance or mistake as to them is treated as a mis- take of fact, and not of law. In this respect, the laws of each of the different States of the Union are considered foreign laws. Haven v. Foster, 9 Pick. 112, 130 ; Norton v. Mar den, 15 Me. 46; Holmes v. BrougMon, 10 Wend. 75. § 3. Assent how affected by mistake of fact. Where a contract is made in ignorance of a material fact, or under a plain and in- jurious mistake in relation to it, such contract is voidable at the election of the person so in error. This rule is not confined to those cases in which there has been a fraudulent concealment or suppression of facts by the opposite party, but extends to cases of innocent misapprehension and mistake. Roberts v. Fisher, 43 N. Y. (4 Hand) 159 ; Leger v. Bonnaffe, 2 Barb. 475 ; 6 N. Y. Leg. Obs. 235. Every person of reasonable understanding is presumed to know the law, and to act upon the rights which it confers or supports, when he knows all the facts ; and, it is culpable neg- ligence in him to do an act, or to make a contract, and then set up his ignorance of law as a defense. But tliere is no presump- tion that any person is acquainted with all matters of fact, because it is not possible by any degree of diligence to acquire that knowledge in all cases, and for that reason, an ignorance of facta does not import culpable negligence. The instances in which contracts may be avoided on the ground of ignorance or mistake as to material facts are very numerous, and in the other portions of this work some of them will be noticed. See Assumpsit; Money Paid ; Mistake; Rescission; Reformation, and similar titles. § 4. Of assent obtained by duress. The assent to every valid contract is such as is given freely and voluntarily ; and, there- fore, an assent which is procured by compulsion or duress will not create a binding contract. Duress may be either imprisonment or by threats, and it usu ally relates to the person whose assent is desired, or nominally obtained. And, in this country, it has been held that duress of a person's 86 GENERAL PRINCIPLES OF CONTRACTS. goods is sufficient to avoid a contract obtained from liim in that manner. This subject is elsewhere fully discussed. See Duress. § 5. Of assent given, or contracts made by letters. A proposal for a contract may be made in person, by agent, by telegraph, or by letter ; and an assent to it may be given in the same manner. If the proposition is made by letter, and is sent by mail, tlie person making the offer may retract by a subsequent letter which reaches the opposite party at any time before an answer of accept- ance has been written and put in the mail. But, as soon as such answer is put into the mail, the contract is closed as to both parties. WJieat v. Cross, 31 Md. 99 ; S. C, 1 Am. Rep. 28 ; Mactier v. Frith, 6 Wend. 103 ; Yassar v. Camp, 11 N. Y. (1 Kern.) 441 ; Abbott v. Shepard, 48 N. H. 14 ; Hutcheson v. Blake- man, 3 Mete. (Ky.) 80 ; Hamilton v. Lycoming Ins. Co., 5 Penn. St. 339 ; Potts v. Whitehead, 5 C E. Green (N. J.), 55 ; Moore v. Pier son, 6 Iowa, 279. Although a letter retracting an oflfer made has been mailed, and is in due course of transmission, at the time when the letter of assent was mailed, the contract will be closed, because the retraction will be of no avail unless received before the acceptance was mailed. lb. Sanford v, Howard, 29 Ala. 684. An acceptance by letter takes effect from the time when it was mailed, and not from the time of its receipt by the other party. lb. Levy v. Cohen, 4 Ga. 1 ; Yassar v. Camp, 11 N. Y. (1 Kern.) 441; Tayloe V. Merchants' Fire Ins. Co., 9 How. (U. S.)390; Dunlop V. Higgins, 1 H. L. Cas. 381 ; StocJcham v. Stockham^ 32 Md. 196. A retraction takes eifect when the letter of retraction is re- ceived, and not from the time of mailing it. lb. An oifer or proposition made by letter, and not replied to within a reasonable time, is not a contract. Martin v. BlacTc, 21 Ala. 721 ; Chicago cfe Great Eastern R. R. Co. v. Dane, 43 N. Y. (4 Hand.) 240; Bruner v. Wheaton, 46 Mo. 363. Where a letter containing a proposal or an acceptance of one, is properly mailed, neither party will be injuriously afffectedby the delays of the mail, or by the total miscarriage of the letter, yassar v. Camp, 11 N. Y. (1 Kern ) 441 ; Tayloe v. Merchants Fire Ins. Co., 9 How. (U. S.) 390 ; Dunlop v. Higgins, 1 H. L Cas. 381. Where a treaty is commenced by letter, and an offer by letter is verbally rejected, the party who made the offer is relieved GENERAL PRINCIPLES OF CONTRACTS. 87 from liis liability, unless he consents to renew the treaty. She/- fie^d Canal Co. v. Sheffield & Mother ham B. R. Co., 3 Railw. Cas. 121. AVliere there have been oral negotiations between two parties, which did not result in a completed contract ; and, afterward, one of the parties writes a letter, in which he states his understanding of the terms of the prior negotiations, and accepts the terms thus stated, and requires an acceptance by letter, this does not constitute a contract, but is a mere proposition for a contract. Hough v. Brown, 19 N. Y. (5 Smith) 111. See Washington Ice Co. v. Webster, 62 Me. 341. If, by the terms of an offer, a certain time be prescribed, within which it may be accepted by the other party, it must be accepted within that time ; and an acceptance after the time will not con- stitute a contract that will bind the party making the proposal. Potts V. Whitehead, 5 C E. Grreen (N. J.), 55 ; Larmon v. Jordan^ 56 111. 204. So, too, a party making an offer may require that the accept- ance shall be made in a particular manner, as, for instance, that it shall be completed by a contract, in writing ; and an accept- ance in any other manner will not constitute a contract. Got)- ernor, Guardians, etc., of the Poor of King ston-upon- Hull v. Petcli, 10 Exch. 610 ; S. C, 28 Eng. Law & Eq. 470. If a letter is addressed to the owner of lands, inquiring whether he is the owner of certain lots, and, if so, the price of them, and an answer is returned, naming a price, this is not equivalent to a proposal to sell the lots, for, a mere statement of the price is not an offer to sell, since the owner may wish to choose a purchaser and may not be willing to sell to any one who offers his price. Knight v. Cooley, 34 Iowa, 218. See, also, Spencer v. Harding, L. R., 5 C. P. 561 ; 19 W. R. 48 ; 39 L. J. C. P. 332 ; 23 L. T. (N. S.) 237 ; Tuclcer v. Woods, 12 Johns. 190. § 6. Of assent given, or contracts made, Iby telegraph. The tele- graph is now a common medium of communication between parties who desire to enter into contracts. And most, if not all, the rules relating to contracts made by letters, are equally applicable to contracts made by the use of telegrams. Where one party makes an offer, in the first instance, by a telegram, which is accepted by the other party through the same medium, and without any prior agreement or dealing between them, the contract is as complete and as valid as though it had been made by letters through the mails, or even directly by the parties in person. Telegrams used in communicating and accepting an 88 GENERAL PRINCIPLES OF CONTRACTS. offer, will, when acted upon, form a contract that will govern the acts of the parties under the stipulations of the telegrams. BuUe V. Batts, 38 Texas, 312. A valid contract may be made when the offer is contained in a letter, and the acceptance is made by a telegram. An offer was made by letter, to pay a specified sum as the rent of a particular house for one year, and added, "If you are willing and will telegraph at once to that effect, I will take it," to which the owner replied by telegraph, "you may have the store for one year on the terms of your letter," and this was held to constitute a valid contract. Prosser v. Henderson, 20 Upper Canada, Q. B. Rep. 438 ;' Allen's Tel. Cas. 170 ; see, also, Calhoun v. Atchison, 4 Bush (Ky.), 26L It has been seen that the mailing of a letter containing an assent to the terms of a proposition is sufficient to complete the contract, ante, 86. So, where, in pursuance of a previous agree, ment between the parties to use the telegraph as a means of busi- ness communication, a telegram containing a proposition is sent by one of the parties to the other, who accepts it by dispatching a notice that it is accepted, this will be a complete contract from the time when the acceptance was sent. Trevor v. Wood, 36 N. Y. (9 Tiff.) 307 ; 3 Abb. (N. S.) 355 ; 1 Trans. App. 248. Parties who use the telegraph as a mode of communication are not responsible for, nor bound by, the errors of the operator in transmitting dispatches. A person who writes a message order- ing a specified number of articles is not bound to accept a larger number merely because the operator transmitted a message, which, taken in connection with a previous communication by letter, might be construed as an order for such larger number. HenJcel v. Pape, L. R., 6 Exch. 7 ; 23 L. T. (N. S.) 419 ; 19 W. R. 106 ; Allen's Tel. Cas. 567. A wrote to B, asking on what terms he could execute an order for fifty rifles. B answered, stating his terms. Subsequently B received a telegram from A directing him to send " the " rifles. He accordingly forwarded fifty rifies, but A refused to accept more than three of them, for the reason that the message deliv- ered by him to the telegraph operator ordered but three rifies, while the operator, by a mistake on his part, telegraphed the word "the " instead of " three," and it was held that A was lia- ble only for three rifles. lb. A transmitted from Peterhead a telegram to B at Liveipool. as follows : " Send on immediately fifteen twenty tons salt invoice GENERAL PRINCIPLES OF CONTRACTS. 89 in my name cash terms." Through the fault of the telegraph clerks the telegraph delivered to B read : " Send on rail immedi- ately fifteen twenty tons salt Morice in morning name cash terms," B sent salt to Peterhead, addressed "Morice, Peter- head,'^ and forwarded the invoices to the same address. The in voices were returned, and A refused to accept a delivery of trie salt, and it was held that no contract had been completed between the parties. Yerdin v. Robertson, 10 Court of Sessions Cases (3d series), 35 ; Allen's Tel. Cas. 697. B having entered into a contract with C, the brother of the de- fendant, for the sale of hay, brought an action against the defendant for not accepting. The judge at the trial admitted letters and telegrams signed by C, as evidence against the defend- ant, and the jury found for the plaintiff; and it was held thai there was sufficient evidence of the authority, and that the two telegrams, of which one was signed in C's name, and in the other the name of the defendant was not mentioned as buyer, together constituted a sufficient memorandum to satisfy the Statute of Frauds, on the ground that the defendant might be treated as the undisclosed principal of C, who appeared on the telegrams to be liable as principal. McBlaln v. Cross, 25 L. T. (N, S.) 804, Q. B.; Allen's Tel. Cas. 691. See Trevor v. Wood, 36 N. Y. (9 Tifi".) 307 ; 3 Abb. (N. S.) 355 ; 1 Trans. App. 248 ; Godwin v. Fran- cis, L. R., 5 C. P. 295 ; 39 L. J. C. P. 121 ; 22 L. T. (N. S.) 338, Telegrams signed by a person and relating to a contract, but not stating its terms or conditions, are not sufficient to take the contract out of the Statute of Frauds. Hazard v. Day, 14 Allen (Mass.), 487 ; Allen's Tel. Cas. 319. See Washington Ice Co. V. Webster, 62 Me. 341. Telegrams are competent evidence as a mode or means of prov- ing contracts. Taylor v. Steamboat Robert Campbell, 20 Mo. 254 ; Beacli v. Raritan & Delaware Bay R. R. Co., 37 N. Y. (10 Tiff".) 457 ; 5 Trans. App. 113 ; HenTcel v. Rape, L. R., 6 Exch. 7; 23 L. T. (N. S.) 419 ; 19 W. R. 106 ; Allen's Tel. Cas. 567 ; DurJcee V. Vermont Central R. R. Co., 29 Vt. 127. A contract made by telegram must be proved like any other contract, by the best evidence the case admits of, which is the original message, if that is to be found; and if this is lost, its con- tents may be proved by secondary evidence. DurTcee v. Yermont Central R. R. Co., 29 Yt. 127; Allen's Tel. Cas. 59 ; Williams v. Brickell, 37 Miss. 682 ; Allen's Tel. Cas. 136. A copy of a telegram is not admissible as evidence, unless it Vol. L — 12 90 GENEHAL PRINCIPLES OF CONTRACTS. is impossible to produce the original message. Matteson v. Moyes, 25 111. 591 ; Allen's Tel. Cas. 169. ARTICLE VI. OF THE COJSrSIDERATION OE CONTRACTS. Section 1. A cousideration is necessary. An agreement or promise, made without any consideration to support it, is entirely void and cannot be enforced. In the case of a contract or promise under seal, the law presumes the existence of a sufficient con- sideration. In the case of simple contracts, which term includes all contracts not under seal, whether oral or written, a sufficient consideration must not only exist in fact, but it must generally be alleged in the pleadings and proved in evidence to warrant a recovery. Promissory notes and bills of exchange do not ordinarily form any exception to the rule that a consideration is necessary to support them, for, as between the original parties, although there is a presumption that a sufficient consideration exists, so that it is unnecessary for the plaintiff to prove a consideration in the first instance, yet a want, a failure of, or an illegality of consideration may be set up as a defense ; and the only differ- ence between the case of a bill or note and any other contract, as to the immediate parties, is, that the burden of proof is changed. Parish v. Stone^ 14 Pick. 198, 201 ; Jennison v. Staf- ford, 1 Cush. (Mass.) 168, 169 ; Sawyer v. Vaughn, 25 Me. 337, 339 ; Emery v. Estes, 31 id. 155. Although a consideration is indispensably necessary for the support of a simple contract, it is not necessary that it should be expressed in the contract, even though it be a written con- tract, if it be otherwise duly proved to exist. Beeson v. Howard, 44 Ind. 413; Cummings v. Dennett, 26 Me. 397; Arms v. Ashley, 4 Pick. 71 ; Tingley v. Cutler, 7 Conn. 291 ; Patchin v. Swift, 21 Vt. 292 ; Thompson v. Blanchard^ 3 N. Y. (3 Comst.) 335. If a written contract does not set forth the specific considera- tion upon which it is founded, but merely states in general terms that it was made upon a valuable consideration, this is prima facie sufficient evidence of that fact. Whitney v. Stearns, 16 Me. 394 ; Sloan v. Gibson, 4 Mo. 33. § 2. Kinds of consideration. " Valuable considerations are divided by the civilians into four species : 1. Do, ut des: as GEIS^ERAL PRINCIPLES OF CONTRACTS. 91 when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment ; and all sales of goods, in which either there is an expressed contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio, ut facias : as, when I agree with a man to do his work for him, if he will do mine for me ; or if two persons agree to marry together ; or to do any other positive acts on both sides. Or, it may be to forbear on one side in consideration of something done on the other ; as, that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste. Or, it may be for mutual forbearance on both sides ; as, that in consideration that A will not trade to Lisbon, B will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is facto, ut des: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. And when a ser- vant hires himself to his master for certain wages or an agreed sum of money ; here the servant contracts to do his master's ser- vice, in order to earn that specified sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform the service for what it shall be reasonably worth. 4. The fourth species is, do, ut facias : which is the direct counter- part of the preceding. As when I agree with a servant to give him such wages, upon his performing such work ; which, we see, is nothing else but the last species inverted ; for sermis facit, ut herus det, and Tierus dat, and ut servus f aetata 2 Bla. Com. 444; 3 Broom & Hadley's Com. 158, 159; or vol. 2, 133, top page, Wait's ed. In the subsequent sections of this article the various kinds of considerations will be considered as fully as is required in a work like the present. § 3. Benefit or injury as a consideration. A consideration may arise from, or consist of, some benefit or advantage accruing to the party who promises ; or, it may arise from some inconven- ience or detriment sustained by the person to whom the promise is made ; and. whenever any injury to the one part}', or any benefit to the other party is the ground of consideration, it will be sufl^icient to support a contract. Tompkins v. Philips, 12 Ga. 52; Boyle v. Knapp, 4 111. 334 ; Warren v. Wliitney, 24 Me 661 ; Ordineal v. Barry, 24 Miss. 9 ; Laiorence v. Fox, 20 N. Y. 92 GENERAL PRINCIPLES OF CONTRACTS. (6 Smith) 268 ; Clark v. Sigourney, 17 Conn. 511 ; Carr v. Card^ 34 Mo. 513 ; Powell v. Brown, 3 Johns. 100. It is not necessary that there should be a concurrence of benefit to one party, and of detriment to the other, to constitute a valid consideration. If the party promising receives a benefit for his promise, that is sufficient, although the other party sufi'ers no detriment. So, if the party promised suffers any detriment, that is sufficient, although the party promising does not receive any benefit. But, if there is no detriment or benefit to either party, there v^^ill be no consideration. A few of the numerous cases may be cited in relation to benefit to promisor, or detriment to promisee. The making of a payment upon a promissory note before it is legally demandable, is a sufficient consideration for a promise by the holder to extend the time of payment of the bal- ance of the note. JSTewsom v. Fincli^ 25 Barb. 175 ; Redman v. Deputy, 26 Ind. 338 ; Warner v. Campbell, 26 111. 282 ; Fowler V. Brooks, 13 N. H. 240 ; Wright v. Bartlett, 43 id. 548. Where the benefit to a party is the prevention of a diminution in the value of his property, this is a sufficient consideration for a contract. Ordlneal v. Parry, 24 Miss. 9. Where a borrow^er of money promises to discharge the lender a debt in consideration of the loan, but without the knowledge of the lender's creditor, this is sufficient to enable the latter to enforce the promise of the borrower. Lawrence v. Fox, 20 N. Y. (6 Smith) 268 ; Barringer v. Warden, 12 Cal. 311. The delivery of property belonging to a debtor, and its accept- ance by a third party, for the purpose of paying the debts of the former, is a sufficient consideration for a promise by the latter to pay the claim of the creditor of such debtor. Smith v. Rogers, 35 Vt. 140. A very slight advantage to one party, and a trifling inconven- ience to the other, is a sufficient consideration to support a contract, when made by a person of good capacity, who is at the time under the influence of any fraud, imposition, or mistake. Harlan v. Harlan, 20 Penn. St. 303 ; Oakley v. Boorman, 21 Wend. 588 ; Clark V. Gaylord, 24 Conn. 484. It is not necessary that the benefit should be direct or certain, for a contingent, uncertain, or indirect benefit is a sufficient con- sideration for undertaking a bailment. Newhall v. Paige, 10 Gray (Mass.), 366 ; see Clark v. Gaylord, 24 Conn. 484. The incurring of a legal liability by one person, at the request of another, is a sufficient consideration for a promise of indemnity GENERAL PRINCIPLES OF CONTRACTS. 93 made by the latter to the former ; as in the case of the indorse- ment of a promissory note. Litchfield v. Falconer^ 2 Ala. 280 , n Amoreux v. Gould, 7 N. Y. (3 Seld.) 349 ; Gardner v. Webber, 17 Pick. 407. So of a case in which a person becomes surety for another by signing a bond at his request. Perlcins v. Mayfield, 5 Port. (Ala.) 182. An agreement to pay a debt in coin, and the giving of a mort- gage to secure its payment will support a promise by the creditor to extend the time of payment. Kinsey v. Wallace, 36 Cal. 462. The assignment of a judgment is a sufficient consideration to support a promise made by the assignee. Dicker son v. Derriclc- son, 39 111. 574. A promise to pay to a constable the amount of an execution placed in his hands for collection, if he will release a levy made under it, is a sufficient consideration for such promise. West v. Hosea, 5 Harr. (Del.) 232 ; Skelton v. Brewster, 8 Johns. 376 ; Hinman v. Moulton, 14 id. 466. Where a sheriff has levied upon goods by virtue of an execu tion, a delivery or such goods to a receiptor is a good considera- tion to support a promise by the latter to return the goods. Lockwood V. Bull, 1 Cow. 322 ; Dezell v. Odell, 3 Hill, 215 ; Pottei V. Sewall, 54 Me. 142. § 4. Of the adequacy of the consideration. The law has no means of judging of the actual or precise value of a considera- tion ; and, therefore, as a general rule, it does not inquire as to the value of a consideration, provided it be of some value, and be legal in its nature. It is not necessary that the consideration on each side shall be of equal value, nor that a contract or prom- ise shall be supported by a consideration equal in value to the promise or contract of the other party of the contract. If no contracts were valid except such as appeared to be of equal value to each party, very few contracts would be made; and such as were made would be quite likely to be invalid for inequal- ity. In general, it may be said that neither party expects or be- lieves that the considerations or the promises on each side cor- respond in value ; or that the consideration on the one side, and the promise on the other are of equal value ; as is sufficiently evident from the fact that one or both of the parties expects to be the gainer in some manner from the contract. If there be no legal objection to the validity of a considera- 94 GENERAL PRINCIPLES OF CONTRACTS. tion, or, in other words, if it be not illegal, and it is of some value, it will be sufficient to sustain a contract or promise. San- horn V. French, 22 N. H. 246,248; Whittle w Skinner, 23 Vt. 532 ; Oakley v. Boorman, 21 Wend. 588, 594 ; Hubbard v. Cool- idge, 1 Mete. (Mass.) 84 ; Clark v. Sigourney, 17 Conn. 511. Each party is permitted to use his own judgment as to the value or equality of the consideration ; and, where the contract is made in good faith, it is not important how slight the apparent benefit be to the promisor; or how insignificant the damage ap- pears to be to the promisee ; in either case the most trifling con- sideration will be sufficient, if it be not utterly worthless, in fact and in law. "If the contract is fairly made, with a full under- standing of all the facts, the ' smallest spark ' of consideration is sufficient." Sanborn v. French, 22 N. H. 248. If a contract is deliberately made, without fraud, and with a full knowledge of all the circumstances, the least consideration will be sufficient. Trains. Gold, 5 Pick. 384. "The slightest consideration is sufficient for the greatest undertaking." Oakley V. Boorman, 21 Wend. 588, 594 ; Johnson v. Titus, 2 Hill (N. Y.), 606. A promise to pay a sum of money claimed, if the claimant will make an affidavit of the correctness of the claim, is suffici- ent and binding if the affidavit be made. Brooks v. Ball, 18 Johns. 337. See, also, Hurd v. Pendrigh, 2 Hill, 502. So of an agreement to pay such sum as a specified person should say was a reasonable compensation for certain services rendered by the claimant, will be sufficient to enable the latter to recover such sum as may be fixed by the person so named. Culley v. Har- denburgh, 1 Denio, 508. So where a claim is made, but is dis- puted, and the claimant offers to be satisfied if the other party will swear that nothing is due, and the latter makes an affidavit to that effect, this will bar an action upon such claim. Rourke V. Duffy, 15 Abb. Pr. 340. So an agreement by a creditor to accept less than the face of his demand, upon receiving security for the amount to be paid, is founded upon a sufficient consider- ation by reason of the benefit derived from the additional secur- ity. Philli'ps V. Berger, 2 Barb. (N. Y.) 608 ; 8 id. 527 ; Little V. Hobbs, 34 Me. 357 ; Boyd v. Hitchcock, 20 Johns. 76 ; Brooki V. White, 2 Mete. (Mass.) 283. If the consideration is evidently worthless, it is not sufficient to support a contract. And where a claim is legally groundless, a promise upon a compromise of it and of one cent in addition, GENERAL PRINCIPLES OF CONTRACTS. 95 is not enough to support a promise to pay the sum of six liun^ dred dollars. Schnell v. Nell, 17 Ind. 29. So if a judgment creditor gives to the judgment debtor a written acknowledgment of the receipt of ten dollars in full discharge of a judgment for ninety dollars, this will not prevent the enforcement of the judg» ment of the residue. Bailey v. Day, 26 Me. 88. A promise by a father to his son to discharge the latter from a note held by the former, in consideration that the son would not make any more complaints about the father' s distribution of his property, is void for want of consideration. White v. Bluett, 24 Eng. Law & Eq. 434 ; 23 L. J. (N. S.) Exch. 36. A verbal promise to sell goods to a responsible party for their full value and on the usual terms, forms no consideration for an independent engagement to pay the antecedent debt of a third person. Pfeiffer v. Adler, 37 N. Y. (10 Tiff.) 164 ; 4 Trans. App. 95 ; and see Belknap v. Bender, 6 N. Y. S. C. (T. & C.) 611 ; 4 Hun, 414. An executory promise to pay a sum of money to be recanted from a bargain which is void by the Statute of Frauds, is not binding because there is no consideration to support it. Silver' nail V. Cole, 12 Barb. 685. The sale of a chose in action which is absolutely void does not furnish any consideration for a prom ■ ise. Slierman v. Barnard, 19 Barb. 291. Although mere inadequacy of consideration is not usually a ground for setting aside or holding a contract to be void ; yet, where the inadequacy of consideration is evident and gross, it may create a presumption of fraud, mistake, overreaching ; or of unconscientious advantage, and thus induce a court of equity to interfere and set aside a contract so entered into. Hough v. Hunt, 2 Ohio, 495, 502 ; Udall v. Kenney, 3 Cow. 590 ; Harde- man V. Burge, 10 Yerg. 202 ; Wormuck v. Rogers, 9 Ga. 60 ; Judge V. Wilkins, 19 Ala. 765 ; Williams v. Powell, 1 Ired. Eq. 460. In such cases, however, it is the fraud or undue advantage that furnishes the ground of relief. lb. § 5. Prevention of litigation as a consideration. The law favora the settlement of disputes and the prevention of litigation ; and, therefore, compromises of doubtful and conflicting rights and claims, the settlement of boundaries, and other similar arrange- ments, are not only good and sufficient considerations for agree- ments, but are highly favored in the law. Scott v. Warner, 2 Lans. 49 ; Stewart v. Ahrenfeldt, 4 Denio, 189 ; Farmers'' Bank of Amsterdam v. Blair, 44 Barb. 641, 652. A note which is given 96 GENERAL PRINCIPLES OF CONTRACTS. upon the settlement of a doubtful claim preferred against tlie maker, will be upheld as founded upon a sufficient considera tion, without regard to the legal validity of the claim. Russell V. CooTc, 3 Hill, 504 ; Keefe v. Yog el, 36 Iowa, 87. The withdrawal of legal proceedings, which were instituted for the purpose of asserting claims to property, and the procur- ing of releases from the claimants, are a sufficient consideration to support an agreement for a division of such property. Downer V. Churchy 44 N. Y. (5 Hand) 647. So, the withdrawal of a ca- veat by an heir at law to the proving of the will of his ancestor, is a sufficient consideration to support a promise by the devisees for the payment of a specified sum of money. 8eaman v. Sea- man, 12 Wend. 381. So an agreement by the principal bene- ficiary under a will, with testator's heirs who threaten to oppose the probate of the will, that if they will sign an admission of the service of the citation and will not contest the proof of the will, he will pay each of them a specified sum, this is a valid consideration ; and an acceptance and performance of the terms by the heirs will enable them to maintain an action upon the promise. Palmer v. North, 35 Barb. 282 ; see Bedell v. Bedell, 3 Hun, 580 ; S. C, 6 N. Y. S. C. (T. & C.) 324 ; Hill v. Buckmin- sier, 5 Pick. 393. The compromise of a doubtful and conflicting claim is a good consideration for a new agreement. Pitkin v Noyes, 48 N. H. 294 ; S. C, 2 Am. Rep. 218, 228. When there is a dispute as to the title to land, and, for the purpose of compromising it, one of the parties agrees to convey the land to the other with warranty, and the other promises to pay him a sum of money therefor, the agreement will be valid and binding, in the absence of fraud or imposition. Moore v. Fitzwater, 2 Rand. (Va.) 442; and see Mills y. Lee, 6 T.B.Monr. (Ky.) 91. In all such cases of compromises, however, there must be a case where there could be some pretense of a claim sustained, though the result of a litigation might be involved in doubt. If the claim made is one which is utterly and palpably untenable, either in fact or in law, no action will lie upon the compromise of such a claim. Dolclier v. Fry, 37 Barb. 162; Silvernail v. Cole, 12 id. 685 ; Cahot v. HasMns, 3 Pick. 83; Martin v. Blacky 20 Ala. 309 ; Jarms v. Sutton, 3 Ind. 289. § 6. Forbearance as a consideration. An agreement to forbear either absolutely, or for a certain time, or for a reasonable time, to institute or prosecute legal or equitable proceedings to enforce GENERAL PRINCIPLES OF CONTRACTS. 97 a legal or equitable demand, is a sufficient consideration for tlie promise of the debtor, or of a third person, to pay the debt or do any other act. By such forbearance the creditor is delayed, and the debtor is or may be benefited ; so that there concur both the ordinary grounds upon which a sufficient consideration may be rested. 1 Chit. Cont. 36 ; Watson v. Randall, 20 Wend. 201; Mechanics & Farmers' BanTc of Albany v. Wixson, 42 N. Y. (3 Hand) 438 ; Halkes v. HotchUss, 23 Vt. 235. If the claim is a well-founded one, or, even if it be doubtful, a forbearance to prosecute it for a reasonable or a certain time will be a sufficient consideration for a promise. Haggerty v. Allaire WorTis, 5 Sandf. 230 ; Ritter v. PJiillips, 53 N. Y. (8 Sick.) 586 ; Jennison v. Stafford, 1 Cush. (Mass.) 168 ; Rood v. Jones, 1 Doug. (Mich.) 188; Underwoods. HassacTc^ 38 111. 208; Templeton v. Bascom, 33 Vt. 132 ; Lowe v. Weatherly, 4 Dev. & Bat. (N. C.) 212. A promise by one person to pay the debt of another, in con- sideration that the creditor will forbear and give further time for the payment of the debt, is a sufficient consideration, although no particular time for forbearance was stipulated for, if the cred- itor alleges that he did forbear from such a day to such a day, and that was a reasonable time. King v. Upton, 4 Me. 387 > Elting v .Yanderlyn, ^ Johns. 237; Allen v. Pryor, 3 A. K. Marsh. (Ky.) 305 ; Qlles v. AcUes, 9 Penn. St. 147 ; Rood Y.Jones, 1 Doug. (Mich.) 188. An agreement to delay the collection of an execution is a suf- ficient consideration for a promise by a stranger to pay the amount of it. Oiles v. AcJcles, 9 Penn. St. 147 ; Russell v. Bab- cock, 14 Me. 138; see Read v. French, 28 N. Y. (1 Tiff.) 285. The withdrawal of exceptions and the dismissal of a suit con- stitutes a sufficient consideration for an agreement, even though the exceptions were not well founded. Burne v. Cummings, 41 Miss. 192. An adjournment of the trial of a cause in a justice's court is a sufficient consideration for a promise. Stewart v. McOuin, 1 Cow. 99. Where the claim is one that clearly cannot be maintained at law or in equity, a promise founded upon the forbearance to prosecute such claim will not be enforced because there is no consideration to support it. Sharpe v. Rogers, 12 Minn. 174 ; Cabot V. Haskins, 3 Pick. 83 ; Neio Hampshire Bank y. Calcord, 15 N. H. 119 ; Martin v. Black, 20 Ala. 309 : Merchants'' Bank V. Davis, 3 Ga. 112 ; Silvernail v. Cole, 12 Barb. 685. Vol. L — 13 98 GENERAL PRINCIPLES OF CONTRACTS. Although, as has been stated, aiite^ 97, a promise to forbear for a certain time or for a reasonable time, it has been held that a promise of forbearance for a sliort time is not sufficient, since the party promising might, in such case, sue immediately after the promise was made. Lonsdale v. Brown, 4 Wash. C. C. 148 ; Sid- well V. Evans, 1 Penn. 385 ; MoCorney v. Stanley, 8 Cush. (Mass.) 85 ; GarnettY. KirJcman, 33 Miss. 389 ; Bixler v. Beam, 3 Penn. 282. It is not important that the person who makes the promise, in consideration of forbearance, should be benefited by the dela}-. Maud V. Waterhouse, 2 C. &P. 579 ; Smith v. Algar, 1 B. & Ad. 603 ; Sage v. Wilcox, 6 Conn. 81. The waiver of a legal right, at the request of another person, is a sufficient consideration for a promise made by him. Sykes v. Laffery, 27 Ark. 407; SmitJi v. Weed, 20 Wend. 184 ; Farmer v. Stewart, 2 N. H. 97 ; Williams v. Alexander, 4 Ired. Eq. 207 ; Waterman v. Barratt, 4 Harr. (Del.) 311. § 7. Assignment of a debt or a right of action arising upon contract. The assignment of a debt, or of a right of action founded upon contract, is a valid consideration for a promise by the assignee ; and there are very few causes of action arising upon contract which may not be assigned. At common law, however, such an assignment did not ordinarily vest in the assignee a right of action in his own name against the party liable to pay. Jessel V. WilUamshurgh Ins. Co., 3 Hill, 88. But an express promise, by the debtor to the assignee, to pay the debt enabled the latter to maintain an action thereon in his own name. Compton V. Jones, 4 Cow. 13 ; Edson v. Fuller, 22 N. H. 183 ; Page v. Danforth, 53 Me. 174 ; Moar v. Wright, 1 Vt. 57. Although, at common law, an action must be brought in the name of the assignor in some cases, the rights of the assignee were, in all proper cases, fully protected by the courts in actions so brought. Briggs v. Dorr, 19 Johns. 95 ; Timan v. Leland, 6 Hill, 237. If the chose in action was a negotiable one, it might be trans- ferred by indorsement, or otherwise, so as to give the holder or owner a right of action in his own name, as in the case of bills of exchange and promissory notes. In courts of equity the distinction between negotiable and non-negotiable choses in action did not prevail ; and the real party in interest might sue in his own name. The Code of Procedure of New York, § 1 11, adopts the equitable rule, and authorizes all actions to be brought in the name of the GENERAL PRINCIPLES OF CONTRACT^. 99 real party in interest. The rights or causes r,^ action which are thus assignable are very numerous, and include every cause of action arising upon contract, either in the nature of a debt, or of a right to recover damages for the breach of a contract; and, therefore, judgments, bonds, mortgages, bills of exchange, prom- issory notes, due bills, chattel notes, debts, accounts, contracts and agreements, may, any or all of them, be assigned by one person to another so as to confer a right of action thereon in the name of the assignee. A right of action for the breach of a con- tract to deliver personal property is assignable, and the assignee may sue in his own name for the damages recoverable. Sears v. Conover, 34 Barb. 330 ; 3 Keyes, 113 ; 33 How. 324 ; 4 Abb. Ct. App. 179. A guaranty for the payment of a note or debt is assignable, and the assignee must sue in his own name. Small v. Sloan, 1 Bosw. 352. The balance due upon an unsettled account is assignable. Wescott V. Potter, 40 Vt. 272. And the assignee may sue in his own name. Allen v. Smith, 16 N. Y. (2 Smith) 416. A sheriff may assign his claim to fees for services already ren- dered, but not for such as are not yet earned. Birkheck v. Staf- ford, 23 How. Pr. 236 ; 14 Abb. 285 ; Mulhall v. Quinn, 1 Gray (Mass.), 105. An assignment by a public officer of his salary before it is earned or due, is contrary to public policy, and, therefore, void. Bliss v. Lawrence, 58 N. Y. (13 Sick.) 442 ; 48 How. 21. But see contra. State Bank v. Hastings, 15 Wis. 75. The subject of assignments, their validity, and the rights of assignees will be fully discussed in a subsequent place. See title Assignment. § 8. Assignment or sale of property. The sale of property, and the right of the vendor to recover the price, is one of the most familiar cases relating to the consideration for a promise. This whole subject will be illustrated in the titles, Sale; Goods Sold, etc. § 9. Services rendered, rewards oifered. The performance of labor, or the rendering of personal services, form a very usual ground of consideration for a promise to pay for them ; and are legally sufficient if rendered upon a request, express or implied This subject will be noticed hereafter. See Labor; Service. The request and the promise contained in a public advertise- ment, which offers a reward, is a sufficient consideration to sus- 100 GENERAL PRINCIPLES OF CIONTRACTS. tain an action in favor of any one who complies witli the terms and conditions specified. A sheriff, who publicly offers a reward tor the detection and apprehension of a specified criminal, is personally liable to the person who gives the information which leads to the arrest and conviction of such criminal. Prentiss v. Farnliam,22 Barb. 619. So an offer made to pay a reward for the conviction of the perpetrator of a specified crime, although made by one having no interest in the matter, is a sufficient consideration for the promise, if a conviction is secured under such offer. Furman V. Parke, 21 N. J. L. (1 Zabr.) 310 ; see, also, LeeY. Trustees of Fleming shurg, 7 Dana (Ky.), 28. If the selectmen of a town, acting under the authority of a general statute, offer a reward for the apprehension and convic- tion of a person guilty of a crime, an action will lie against the town in favor of one who has performed such service. Janvrin V. Exeter, 48 N. H. 83 ; S. C, 2 Am. Rep. 18.5 ; see, also, Craw- shaw V. Eoxhury, 7 Gray (Mass.), 374. The offer of a reward to a particular person, to a specified class of persons, or to all persons, is a conditional promise ; and if either of such persons perform the service required before a re- vocation of the offer, such performance is a sufficient considera- tion to render the offer a binding contract. Freeman v. Boston, 5 Mete. (Mass.) 5Q ; Morrell v. Quarles, 35 Ala. 544 ; Ryer v. Stochwell, 14 Cal. 134 ; Smith v. Moore, 1 C. B. 438 ; TJiatcher v. England, 3 id. 254. Where a reward is offered for the apprehension of a criminal, and the recovery of the moneys feloniously obtained by him, it is essential to a right of action that there should be both an apprehension of the offender and a recovery of the moneys. Jones V. PhcBnix Bank, 8 N. Y. (4 Seld.) 228. Where the reward offered merely requires information which will lead to the detection of an offender, it will be sufficient for the claimant to prove that he gave to the offerer of the reward such information as led him to have the suspected person arrested for the offense. Brennan v. Haff, 1 Hilt. 151. An offer of a reward to a public officer to do what it is legally Lis duty to do without such reward, is contrary to public policy and cannot be enforced. Hatcli v. Mann, 15 Wend. 44 ; Smith V. Whildin, 10 Penn. St. 39 ; Pool v. Boston, 5 Cush. (Mass.) V.9. This rule, however, does not apply when no such duty if^ im- posed upon the officer, as where a promised reward is claimed GENERAL PRINCIPLES OF CONTRACTS. 101 by a police officer of another State for arresting a fugitive to that State. Morrell v. Quarles, 35 Ala. 544 ; see, also, City Bank v. Bangs, 2 Edw. Ch. 95 ; England v. Davidson, 11 Ad. & E. 856. Rewards are also frequently offered for various acts and tilings, other than the detection, arrest, or conviction of criminals, as in the case of a lost child. Fallich v. Barber, 1 Maule & Selw. 108. Or for the recovery of lost goods or personal property. Howland V. Loionds, 51 N. Y. (6 Sick.) 604 ; 10 Am. Rep. 654. Or choses in action, and the like instances. An offer of a reward is not to be regarded as unlimited in time, and as continning until it is formally withdrawn, but will be restricted to what is, under the circumstances, a reasonable time. Loring v. Boston, 7 Mete. (Mass.) 409. A person who claims a reward offered for the recovery of lost property, or for information leading to its recovery, must show a performance of the services required, and that this was done after a knowledge of the offer of the reward, and in pursuance of the offer made. Howland v. Lownds, 51 N. Y. (6 Sick.) 604 ; 10 Am. Rep. 654 ; Fitch v. Snedaker, 38 N. Y. (11 Tiff.) 248 ; 7 Trans. App. 228 ; but see TTie Auditor v. Ballard^ 9 Bush (Ky.), 572 ; 16 Am. Rep. 728. A person who recovers stolen property, and returns it to the owner, who gives the finder a sum of money which is accepted as payment for his services, cannot recover the amount of a reward offered for snch services, where the services were rendered without any knowledge of such offered reward. Marvin v. Treat, 37 Conn. 96 ; 9 Am. Rep. 307. § 10. Trust and confidence as a consideration. The fact of in- trusting a person with property is a consideration, in itself, for his promise that, if he acts upon the trust, he will faithfully discharge it. McNeilly v. Richardson, 4 Cow. 607 ; Norton v. Kidder, 54 Me. 189 ; Grams v. Ticlcnor, 6 N. H. 537 ; ClarJc v. Gaylord, 24 Conn. 484 ; Mohinson v. Threadgill, 13 Ired. 39. As a general rule, no person is bound to accept such a trust, but if he volnntarily does so, he will be required to perform it fairly and fully. If mone}^ is collected and placed in the hands of town officers, for the purpose of paying the interest upon bonds issued by the town, pursuant to a statute, and the statute makes it the duty of the officer to apply the money in satisfaction of such interest, a bondholder may maintain an action against such officers to recover the interest due upon bonds held by him. Murdock v. AiMn, 29 Barb. 59 ; Ross v. Ourtiss, 31 N.' Y. (4 Tiff.) 606 ; 30 Barb. 238. A town collector who had collected a 102 GENERAL PHINCIPLES OF CONTRACTS. tax imposed by virtue of a statute, cannot refuse to pay over the money upon the ground of invalidity in the proceedings under which bonds v^^ere issued, and upon vrhich the money was to be applied. People v. Brown, 55 N. Y. (10 Sick.) 180. § 11. Mutual promises as a consideration. A promise is a good consideration for a promise, whether oral or in writing, unless a written promise is required by some statute, or some rule of law. A large part of the executory contracts made, consists of nothing more than a promise for a promise. For instance, two persons enter into a written contract, in which each of them stipulates with the other that he will do some specified act or thing, by a particular time, and neither of them performs the contract, or any part of it, at the time it is made. Here, it is evident, that the only consideration of the contract is a promise for a promise. And, yet, such a contract is as valid and binding upon the parties as though one of them had paid money or delivered property to the other, in consideration of which the latter promised to do some specified thing. Coleman v. Eyre, 45 N. Y. (6 Hand) 38, 41 ; Briggs v. Tillotson, 8 Johns. 304 ; Sage v. Hazard, 6 Barb. 179 ; HougMaliiig v. Randen, 25 id. 21 ; Appleton v. Cliase, 19 Me. 74 ; Quarles v. George, 23 Pick. 401 ; Whiteheads. Potter, 4Ired. 257. If a contract is founded solely upon mutual promises as the consideration, and the promises upon either side are entirely void, there will be no valid contract, because there is no sufficient con- sideration. See Illegality. It is not indispensably necessary, however, that the promise should in all cases be equallj^ binding in law upon both parties ; for, a promise of marriage by an infant is a good consideration for a corresponding promise by an adult, and the latter will be bound by the promise, while the former may avoid the contract. Hunt V. Pealce, 5 Cow. 475 ; Willard v. Stone, 7 id. 22 ; Hamil- ton V. Lomax, 26 Barb. 615 ; 6 Abb. 142 ; Cannon v. Alshury, 1 A. K. Marsh. (Ky.) 76 ; Warwick v. Cooper, 6 Sneed, 659 ; Pool V. PraU, 1 D. Chip. 252. Where the promise of one party is the consideration of the promise of the other, the promises must be concurrent and obligatory on both parties at the same time. Tucker v. Woods, 12 Johns. 190 ; McKinley v. Watkins, 13 111. 140 ; James v, Fulcrod, 5 Texas, 512 ; Commercial Bank v. Nolan, 7 Harr (Miss.) 508. There are cases somewhat analogous to a promise for a prom- GENERAL PRINCIPLES OP CONTRACTS. loi ise in wliicli one party may become bound without any coi re- sponding promise by the other party. If A requests B to sell goods to C, and ^Dromises to pay for them if such sale is made, here, although B does not promise to sell the goods to C, yet, if he subsequently furnishes them as A requested, the latter will be liable upon his promise. U Amoreux y. Oould,l N. Y. (? Seld.) 349 ; Oreat Northern Railway Co. v. WitJiam, L. R., 9 C. P. 16 ; S. C, 7 Eng. Rep. 130, 134, note ; Willetts v. Sun Mutual Ins. Co., 45 N. Y. (6 Hand) 45 ; S. C, 6 Am. Rep. 31 ; Train v. Gold, 5 Pick. 380; Hilton v. SoiUhwiclc, 17 Me. 303; Des Moines Valley R.R. Co. v. Oraff, 27 Iowa, 99 ; S.C., 1 Am. Rep. 256. A request and promise lij^e those just mentioned may be re- tracted, if done before they have been acted upon. Routledge V. Grant, 4 Bing. 653, 660 ; EsTcridge v. Glover, 5 Stew. & Port. 264 ; Boston & Maine R. R. v. Bartlett, 3 Cush. (Mass.) 225 ; Larmon v. Jordan, 56 111. 204. An agreement by a judgment creditor to discharge and satisfy his judgment, upon receiving certain property from the judg- ment debtor, is a sufficient consideration for a promise by the latter to deliver the property. Ginan v. Swadley, 3 Ind, 484. § 12. Considerations moving from third persons, or strangerSf The* cases are contradictory upon the question, whether a person can sue upon a promise, even though it be professedly for his benefit, where he is an entire stranger to the consideration ; that is, where he has neither taken any trouble or charge upon him- self, nor conferred any benefit on the promisor; but such trouble has been sustained or advantage conferred by a third person. 1 Chit, on Cont. 74. It has been held, tliat, in cases of simple con- tract, if one person makes a promise to another for the benefit of a third, it is not binding in favor of the latter, without a promise by him to the plaintifi', except in peculiar circumstances, as where money or property is placed in the hands of the defendant, which in equity and good conscience belongs to the defendant. 1 Story on Cont. 525, § 573; Exchange Bank of St. Louis v. Rice, 107 Mass. 37 ; S. C, 9 Am. Rep. 1 ; Tweddle v. Atkinson, 1 Best & Smith, 393 ; 8 Jur. (N. S.) 332 ; 30 L. J. (Q. B.) 265; 9 W. R. 781; 4 L.T. (N. S.) 468; seel Chit, on Cont. 75 n. x; 11th Am.ed. The general current of American authority is, to follow the old English rule, that w^here one j^erson makes a promise to another, for the benefit of a third, the latter may maintain an action upon such promise, although the consideration does not i04 GEJS^ERAL PRINCIPLES OF CONTRACTS. move from liim. Bohanan v. Pope, 42 Me. 93; Brewer v Dyer^ 7 Cush. (Mass.) 337 ; Crocker v. Higgins, 7 Conn. 347 ; Earlier v. BucJclin, 2 Denio, 45 ; Barker v. Bradley, 42 N. Y. (3 Hand) 316; S.C., 1 Am. Rep. 521 ; Barringer v. Warden, 12 Cal. 311 ; Beers v. RoMnson, 9 Penn. St. 229 ; Draughan v. Bunting, 9 Ired. 10 ; Broion v. O Brien, 1 Rich. 268. § 13. Gratuitous promises; subscriptions and contributions. An entirely gratuitous promise is void for want of considera- tion ; and though it may be binding in morals or in lionor, yet it cannot be enforced by action. A voluntary promise to get a vessel insured, and a neglect to do so, to the injury of the owner of the vessel, does not give any right of action. Thome v. Deas, 4 Johns. 84. So of a mere promise to pay the debt of a friend. Heading R. R. v. Johnson, 7 Watts & Serg. 317. Or to pay a part of another' s debt in discharge of the whole. Whelan v. Edioards, 29 Ga. 315; and see RicTiardson v. Williams, 49 Me. 558. So, where several persons are liable for counsel fees, a promise by one, not a party to the action defended, to pay a share of the expense is not binding. Flemm v. Whitmore, 23 Mo. 430. A promise, which has no inducement except the naked prom- ise of another to do in a few days what he is legally bound to do at once, is roid for want of consideration. Farrington v. Ballard, 40 Barb. 512. So, of a promise by a purchaser at a sheriff's sale, who afterward promises the debtor's wife that he will secure to her the balance, if any, of the price he shall obtain for the property sold, after reimbursing himself. Heathman v. Hall, 3 Ired. Eq. (N. C.) 414. So of a promise to give at the death of the promisor, which is not binding, and conveys no right to the thing promised. Chevallier v. Wilson, 1 Texas, 151. A promise to pay for past services,which were not rendered with the knowledge or at the request of the promisor, express or im- plied, cannot be enforced. Bartholomew v. Jackson, 20 Johns. 28 ; Sanderson v. Brown, 57 Me. 309, 313 ; Allen v. Woodward, 22 N. H. 544. A gratuitous promise by way of a voluntary subscription for some charitable purpose, such as for alms, education, religion, or other public uses, is quite common ; and how far such prom- ises are binding has been a frequent subject of litigation in the courts. In some of the cases it has been held that subscriptions to public works and charities cannot be collected where they are purely gratuitous, and where they have not operated to induce GENERAL PRINCIPLES OF CONTRACTS 105 engagements and liabilities to the knowledge of the subscriber PJiiUlps Limerick Academy v. Davis, 11 Mass. 113 ; Hamilton College Y. Stewart, 1N.Y.(1 Comst.) 581; 2 Denio, 403; Foxcroft Academy v. Favor, 4 Greenl. (Me.) 382; Gait v. Swain, 9 Gratt. (Va.) 633 ; Troy Academy v. Nelson, 24 Vt. 189 ; Curry v. Rogers, 21 N. H. 247. Other cases hold that if the subscription book or paper shows a consideration upon its face ; or, if it contains a request that any act shall be done, and it is shown that there has been a com- pliance with such request, this will render the subscription valid. Barnes v. Ferine, 12 N. Y. (2 Kern.) 18 ; Trustees v. Garvey, 53 111. 401 ; S. C, 5 Am. Rep. 51 ; WatM.ns v. Fames, 9 Cush. (Mass.) 537; Caul v. Gibson, 3 Penn. St. 416 ; George v. Harris, 4 N. H. 535 ; Lathrop v. Knapp, 27 Wis. 214 ; Johnston V. Wabash College, 2 Cart. (Ind.) 555 ; Pitt v. Gentle, 49 Mo. 74 ; Macon v. Sheppard, 2 Humph. (Tenn.) 335 ; University of Vermord v. Buell, 2 Vt. 48. The request to expend money or do other acts need not be expressed, but may be implied from the nature of the transac- tion; and where advances are made, or expenses or liabilities are incurred by others in consequence of such subscription, before any notice of withdrawal, this will, on general principles, render the subscriptions binding, where the advances or acts were au- thorized by a fair and reasonable dependence on the subscriptions, lb. Cooper v.McCrimmin, 33 Texas, 383; S. C, 7 Am. Rep. 268. Where subscriptions are made under an agreement that they are not to be binding until a specified sum is subscribed, it is essential that all the subscriptions should be absolute ; for. if any of the subscriptions necessary to make up the required su m are made upon the 'condition that the subscribers are not to be called upon for the amount subscribed, it is such a fraud upon the other subscribers as discharges or exonerates them from liability. New York Exchange Co. v. Be Wolf, 31 N. Y. (4 Tiff.) 273. But, when the full amount is subscribed in good faith by solvent responsible persons, the subscriptions will be binding, although the money has not been paid in. Westminster College V. Gamble, 42 Mo. 411. Where a subscription is made upon cer- tain conditions specified by the party subscribing, his subscrip- tion will be binding when the acts specified as conditions have been performed. Williams College v. Banforth, 12 Pick. 541 : Cooper V. McCrimmin, 33 Texas, 383 ; S. C. 7 Am. Rep. 268. Vol. I. — 14 106 GENERAL PRINCIPLES OF CONTRACTS. § 14. Illegality of consideration. The general rule is, that if any part of an entire consideration for a promise, or of any part of an entire promise, is illegal, whether at common law, or by statute, the whole contract is void. Deering v. Chapman^ 22 Me. 488; Buck v. Albee, 26 Yt. 184; Perkins v. Oummings,2 Gray (Mass.), 258; Carlton v. Bailey, 27 N. H. 230 ; Sherman v. Barnard, 19 Barb. 291 ; Filson v. Himes, 5 Penn. St. 452 ; Gamble v. Grimes, 2 Cart. (Ind.) 392 ; Coulter v. Robertson, 14 Sm. & M. (Miss.) 18 ; Brown y.Langford, 3 Bibb, 500 ; Chand- ler V. Johnson, 39 Ga. 85; Kottwitz v. Alexander^ 34 Texas, 689 ; Saratoga County Bank v. King, 44: N. Y. (5 Hand) 87. But where a contract founded upon two considerations, one of which is merely void, but not illegal, and the other is valid, the contract will be valid and binding, to the extent of the valid con- sideration, if the contract is, by its terms, susceptible of appor- tionment. Rynds v. Hays, 25 Ind. 31 ; Treadwell v. Dams, 84 Cal. 601 ; Chase's Exr. v. Burkholder, 18 Penn. St. 60. So where a contract is for the doing of two or more things, which are entirely distinct, and one of them is prohibited by law, while the others are legal, the illegality of the one stipula- tion will not invalidate the right of action for a breach of the valid stipulations. Erie Railway Co. v. Union, etc.^ Express Co., 35 N. J. L. 240; Clements v. Marston, 52 N. H. 31 ; Hanauer v. Gray, 25 Ark. 350. For a full discussion of this subject, see the^ title Illegality. ^ 15. Impossible considerations. The law does not attempt to compel parties to do acts or things which are naturally impos- sible ; and, therefore, a contract which is founded upon an im- possible consideration is void and cannot be enforced. A con- sideration may be impossible either in fact or in law ; as where a party promises to walk one thousand miles in an hour ; or, where he promises to discharge a party from the obligation due to another person without the concurrence of the latter. Harvey V. Gibbons, 2 Lev. 161. But a contract is not void, merely because its performance is difficult or improbable. And, where the difficulty relates to the promisor personally, it is his duty to weigh carefully the difficulty or the improbability of the perform- ance on his part, before he binds himself to perform it. For, if a man agrees to do something which is at the time impos- sible in fact, though not impossible in its nature, he will be liable in damages for a non-performance of his contract, As where there is a contract to deliver ' ' prime " or " first GENERAL PRINCIPLES OF CONTRACTS. liTl class " teas, it is no defense to show that no such teas could be procured at the season of the year when they were to be delivered, because none were to be found in the market. Gil- pins V. Co7isequa, 1 Peters' C. C. 86, 91. So, an agreement to transport and deliver goods at a distant place is not excused by the fact that the non-delivery within the agreed time was caused by an unusual freshet, which rendered a public canal impassa- ble so long as to prevent the due performance of the contract . Harmony v. Blngliam, 12 N. Y. (2 Kern.) 99. A contract to perfect a patent right in a foreign country for the plaintiflT s benefit is binding, although the act could not be done without the aid of an act of parliament. Beebe v. Johnson, 19 Wend. 500. This matter will form the subject of a separate article. See Impossible Contracts, etc. §16. Considerations void in part. "A doctrine which is ex- pressed in the words ' void in part, void in toto,' has often found its way into books and judicial opinions as descriptive of the effect which a statute may have upon deeds or other instruments which have in them some forbidden vice. There is, however, no such general principle of law as the maxim would seem to indi- cate. On the contrary, the general rule is, that if the good be mixed with the bad it shall nevertheless stand, provided a sepa- ration can be made. The exceptions are : First. Where a stat- ute, by its express terms, declares the whole deed or contract void on account of some provision which is unlawful ; and, Second. Where there is some all-pervading vice, such as fraud, for example, which is condemned by the common law, and avoids all parts of the transaction because all are alike infected." Curtis V. Leavitt, 15 N. Y. (1 Smith) 9, 96, 97. It sometimes happens that a contract is void in part, and valid in part, and the question is made whether the void part invali- dates the entire contract. See ante, 106, § 14. If one or more of the considerations are merely frivolous and in- sufficient and, therefore, void, but not illegal ; and there are othei good and sufficient considerations, in such case the considera- tions may be severed and full effect given to the valid ones, while the insufficient ones are disregarded. Parish v. Stone, 14 Pick. 198 ; Hynds v. Hays, 25 Ind. 31 ; Treadwell v. Davis, 34 CaL 601. § 17. Mere moral consideration. Unless there is what the law considers a valuable consideration, it will not be sufficient to sus- lOS GE^S^ERAL PRINCIPLES OF CONTRACTS. tain an action. ' A mere moral obligation alone is not sufficient to sustain a promise, unless it is founded upon a previous legal liability. The law does not assume to enforce every promise which a man of nice honor or strict integrity would feel bound to perform. And, therefore, the performance of many purely moral obligations are left to the good faith of the promisor. If one person volunteers, without any previous request, and with- out any legal obligation, to pay the debt of a third person, such payment does not give any right of action, nor will it be conferred by a subsequent promise. Ingraham v. Gilbert, 20 Barb. 151 ; Ricliardson v. Williams, 49 Me. 558 ; Willis v. Hohson, 37 id. 403 ; Williams v. Miller, 1 Wash. Terr. 105 ; Gould V. Yillage of Plicenix, 3 N.Y. S. C. (T. & C.) 797 ; Eastwood V. Kenyon, 11 Ad. & E. 438. Where a parentis willing to support his infant child, and a relative, without his request, but with his assent, receives the child into his family and supports it as a child of his own, no agreement on the part of the father can be implied to pay for such support, and a subsequent promise will not support an action. CMlcott v. TVimhle, 13 Barb. 502. So the law does not imply a contract to pay for services ren- dered by an infant who is permitted while out of a place to reside with his uncle, and during such time is provided with food and clothing, and who works in the same wa}^ as one of the children of the family. Def ranee v. Austin, 9 Penn. St. 309 ; Weir V. Weif s Admr., 3 B. Monr. 645, 647. Where an infant goes from home, against the wishes, but with the father's con- sent, who paid his traveling expenses, and such infant is taken sick while abroad, the father, who has neither received his earn- ings, nor paid his expenses, is not liable for the care and atten- tions bestowed during such sickness. Johnson\. Gibson, 4E. D. Smith, 231; Davidson y. Davidson, 12 Iowa, 5 J 2. So where the son was of full age, and was taken suddenly sick among strangers, who relieved him, and the father subsequently promised to pay the expenses incurred, this was held insufficient to sustain an action. Mills v. Wyman, 3 Pick. 207. So of a prom- ise by a son to pay for necessaries previously furnished to a father. Cook V. Bradley, 7 Conn. 57. A promise by a grandfather to pay for services that have been rendered to his grandson is not binding. Ellicott v. Peterson, 4 Md. 476, 492. And no action can be maintained upon a note given by a person to an officer of a benevolent society, for his initiation as a member, and for hia quarterly dues, for the mere moral obligation, although coupled GENERAL PRINCIPLES OF CONTRACTS. 1% with a written express promise, is not sufficient. Nash v. Rus- sell, 5 Barb. 556 ; Geer v. Archer, 2 id. 420 ; Wile v. Judson, 24 Wend. 97. If there was once a sufficient valuable consideration upon which an action could have been sustained, but, in consequence of some statute, or some positive rule growing out of general principles of public policy, the party so liable is exempted from present liability, the moral obligation -wi^ll, in such case, sui> port an express promise upon which an action will lie. Ji.s familiar illustrations of this rule, a promise will revive a debt barred by the statute of limitations ; a debt discharged by a bankrupt or an insolvent law : a promise by an adult to pay a debt contracted during infancy ; and many other cases of a similar nature. See Limitations. § 18. Of executed consideratious. Considerations may be of the past, of the present, or of the future. In regard to the time when a consideration operates, it may be executed, or something already done before the making of the defendant's promise; it may be executory, or something to be done after the promise; it may be concurrent, as in the case of mutual promises ; or it may be continuing, as being in one part executed, and one part still continuing or unexecuted. A consideration which is wholly pas* is called an executed consideration, and it is not sufficient to sus- tain a promise, unless such past consideration arose at the request, express or implied, of the party who promises; or unless the person to whom such promise is made has been compelled to pay some money, or to do some act in consequence of a lia- bility incurred at the request of the promisor. If a person ren- ders gratuitous services, and a subsequent promise is made to pay for them, this will be a past consideration, and the promise not binding, ante, 108. So of a case in which one person voluntarily, and without previous request, pays the debt of another, and no action lies even upon a subsequent express promise, ante, 107, § 17. But where one person becomes a surety for another at his request, and in consequence thereof he is compelled to pay the debt, he may maintain an action against the person for whom he became such surety, and may recover the amount which he was thus compelled to pay. Bitertour v. Matheios, 42 Ind. 7; Wells v. Mann, 45 N. Y. (6 Hand) 327; S. C. 6 Am. Rep. 93; Konitsky V. Mayor, 49 N. Y. (4 Sick.) 571 ; Appleton v. Bascom, 3 Mete no GENERAL PRINCIPLES OF CONTRACTS. (Mass.) 169; Eaton v. Lambert, 1 Nebr. 339; Whitworth v. Til man, 40 Miss. 76; Holmes v. Weed, 19 Barb. 128. So it has been held that where one man is compelled to pay money which another is bound by law to pay, the law will imply a promise by the latter to reimburse the person making the payment. SargeantY. Currier, 49 N. H. 310; S. C, 6 Am. Rep. 524; Dresser v. Ainsworth, 9 Barb. 619; Hunt \.Amidon^ 4 Hill, 345. In the cases last cited, the purchasers of property were compelled to pay incumbrances which existed at the time of the sale, but unknown to them, and they were allowed to recover the amount from the vendors. Where an executed consideration is one from which the law will imply a promise, no express promise made in respect of that consideration can be enforced, if it differs from the promise which the law would imply from the same consideration. Hop- Mns V. Logan, 5 M. & W. 241; Rascorla v. Thomas, 3 Q. B. 234; Bailey v. Bussing, 29 Conn. 1; ClarTc v. Small, 6 Yerg. 418; Try on v. Mooney, 9 Johns. 358; Bloss v. Kittridge, 5 Yt. 28; Hoggins v. Plympton, 11 Pick. 97; Proctor v. Keith, 12 B. Monr. 252 ; 2 Am. Lead. Cas. 189. § 19. Of executory considerations. An executory contract relates to some future act to be done by one or both of the par- ties, but which is yet unperformed. See ante, 74, art. 2, § 5. An executory consideration generally constitutes a condition precedent which must be performed by the plaintiff before a right of action can accrue in his favor; and in his declaration or complaint, he must allege such performance. See ante, 102, § 11. § 20. Of concurrent considerations. A concurrent considera- tion is said to arise in the case of mutual promises; a promise for a promise, being a good consideration. 1 Chit, on Cont. 73 ; see ante, 102, § 11. In the case of concurrent considerations, the plaintiffs promise is executed, but the thing to be performed by him is executory. And, therefore, though the acts to be done by the plaintiff are not conditions precedent, but concurrent with those to be done by the defendant, yet he cannot maintain an action without showing performance, or an offer on his part to perform. And it is sufficient to allege a readiness and a willing, ness to perform. Mount v. Lyon, 49 N. Y. (4 Sick.) 552; Cooiv ley V. Anderson, 1 Hill, 519; Oiles v. Giles, 9 Q. B. 164. § 21. Of continuing considerations. A continuing considera* kion is one which is executed in part, but which continiiea, GENERAL PRINCIPLES OF CONTRACTS. 11) and is in part unexecuted. Andrews v. Ives^ 3 Conn, 368; Loomis V. Newhall^ 15 Pick. 159. Where A delivers money to B for the use of C, and B afterward promises C to pay it, this is a continuing consideration, and the promise is binding. Lilly V. Hays, 5 Ad. & E. 548; Weston v. BarTcer, 12 Johns. 276. To sustain an action against the agent there must be an express promise by him to pay over the money as directed. Bigelow v. Davis, 16 Barb. 561; Colmn v. Holbrook, 2N. Y. (2 Comst.) 126; Ball V. Lauderdale, 46 N. Y. (1 Sick.) 70; Seaman v. Whitney, 24 Wend. 260. § 22. Failure of consideration. Where the consideration of a contract totally fails, and what was supposed to be a sufficient consideration proves to be a nullity and of no value, the contract may be avoided by the immediate parties. 8mitli v. McClusliy, 45 Barb. 610; Treat v. Orono, 26 Me. 217; Spring v. Coffin, 10 Mass. 34 ; Sanford v. Dodd, 2 Day, 437; Murray v. Garrett, 3 Call. (Ya.) 373; Charlton v. Lay, 5 Humph. 496; Colmlle v. Besly, 2 Denio, 139. And where the consideration wholly fails, the party paying or depositing it may recover it back. lb. In contracts of sale, it is important that the property which is the subject of the contract should be existent, if such was the intention and understanding of the parties, and, therefore, if the sale be of animals, and they are dead; or of property, and it is entirely destroyed, at the time of making the contract, this will render the contract void. Allen v. Hammond, 11 Peters, 63; Bice V. Bwight Manuf. Co., 2 Cush. (Mass.) 80, 86; Kip v. Mon- roe, 29 Barb. 579 ; 18 How. 383; Couturier v. Hastie, 5 H. L. Cas. 673. So on a sale of property, where the title totally fails, the contract may be rescinded by the purchaser. Couturier v. Has- tie, 5 H. L. Cas. 673; Burt v. Dewey, 40 N. Y. (1 Hand) 288; Bordwell v. Collie, 45 N. Y. (6 Hand) 494 ; Ledwich v. McKim, 53 N. N. (7 Sick.) 307; Thurston v. Spratt, 52 Me. 202. § 23. Impeaching consideration. A party may always show a want or a failure of consideration for the purpose of invalidating a contract, with the single exception of a negotiable promissory note, or bill of exchange, which has passed into the hands of a bona fide holder for value, before the bill or note became due, in which latter case the want of consideration would be no defense. § 24. Effect of a seal upon a consideration. At common law a party was not permitted to show that a sealed instrument was without consideration. In New York, the statute declares that a seal is only presumptive evidence of a sufficient consideration; 112 GENERAL PRINCIPLES OF CONTRACTS. which may be rebutted in the same manner, and to the same extent as though it were not sealed. 2 R. S. 406 (423), § 77. Since this statute, a sealed subscription may be impeached for want of consideration. Wilson v. Baptist Education Society, 10 Barb. 308. So of a sealed note. Case v. BougMon, 11 Wend. 106. The defense must be pleaded. 2 R. S. 406 (423), § 78 ; Fay's Administrators v. Micliards, 21 Wend. 626. ARTICLE YIL OF THE FORMS OF CONTRACTS. Section 1. Of writing contracts. In most countries, and under most systems of jurisprudence, certain forms and solemnities have been established for the purpose of binding men finally and con-^^ clusively to the truth and good faith of their acts and representa- tions, and for the due authentication of contracts. Add. onCont. 41. The most formal and solemn instruments are those in writ- ing and under seal, and their nature will be fully explained under such titles, as Deeds, Mortgages, Bonds, Covenants, and the like. There are also many other forms of written contracts, not under seal, such as ordinary contracts in writing, bills of exchange, checks, promissory notes, and others of a similar nature. But, even where the law requires a contract to be in writing, it may be written in pencil marks, instead of ink. Geary v. Physic, 5 B. & C. 234, 237 ; Qlason v. Balhj, 14 Johns. 484 ; Draper v. Pa^ma, 2 Speers. (S. C.)292. And printing is writing within the meaning of the statute. So, too, contracts may be made by means of letters and telegrams, ante, 86, 87, art. 5, §§ 5, 6. § 2. Statute of frauds. The effect of the statute of frauds upon contracts will be fully discussed elsewhere, and, therefore, a mere reference to that title is all that is required in this place. See Sale; Statute of Frauds. § 3. Of the contents of a written contract. Where a contract is reduced to writing it ought to contain the entire terms and conditions agreed upon ; for, if the law requires a particular contract to be in writing, and it does not contain all the terms agreed on, the omission cannot be supplied by parol evidence ; and, if, on the other hand, the law does not require a writing, but the parties adopt that mode, the terms of the contract ought to be all inserted, as the legal presumption will be, that the writing contains all that was agreed upon between the parties, GENERAL PRINCIPLES OF CONTRACTS. 113 and thns raising the question wheiher parol evidence can be given to establish the matters so omitted. § 4. Of certainty in contracts. Every contract ought to be so drawn that there is no uncertaint}^ as to what was intended to be agreed upon between the parties. This is important for the pur- pose of avoiding disputes as to the terms and conditions inserted, and also, to enable the court to give a full and correct construe tion to the instrument. To constitute a valid oral or written agreement, the parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. A written agreement which does not show who are the parties to it, is void for uncertainty. Webster v. Ela^ 5 N. H. 540. So, a contract for a lease, which does not show the length of the proposed term, is insufficient. Bayley v. Fits- maurice, 8 E. & B. 664 ; 9. H. L. Cas. 78. So, if any agreement be so vague and indefinite, that it is not possible to collect from it the full intention of the parties ; for neither court nor a jury can make an agreement for the parties. Wlielan v. Sullivan, 102 Mass. 204; King Y.RucJcmxm, 5 C. E. Green, 316, 359 ; S. C, 6 id. 599 ; Farwell v. Mather, 10 Allen, 322 ; Abeel v. Raddiff, 13 Johns. 297 ; Western Transportation Co. of Buffalo v. La7i- sing, 49 N. Y. (4 Sick.) 499, 504, 505. § 5. Signature to contract. In those cases where some statute requires a written signed contract, there must, of course, be a compliance with such requirements. But, in the absence of any statute, a contract in writing would be incomplete without the signatures of the proper contracting parties. The signature may be written, or may be printed, at the option of the parties. Saunderson v. Jackson, 2 B. & P. 238; ScTineider v. Morris, 2 M. & S. 286; Lerned v. WannemacTier, 9 Allen, 416, 417; or stamped on. Pitts v. Beckett, 13 M. & W. 743. If a statute requires a contract to be subscribed, a printed sig- nature will not be sufficient. Yielie v. Osgood, 8 Barb. 130. As to signatures by telegrams, see ante, 87, art. 5, § 6. § 6. Attestation of contracts. In those cases where an attest- ing witness is required by law, it will be important to have the instrument properly attested or witnessed. And, where such wit- nesses are required, it is also necessary to call on them to prove the execution of the instrument. Hollenbeck v. Fleming, 6 Hill, 303 Story V. Lovett, 1 E. D. Smith, 153; Jones v. Underwood, 2? Barb. 481 ; HodnettY. Smith, 41 How. 190 ; 10 Abb. (N. S.) 86. Although parties may be competent as witnesses in an action., this does Vol. L — 15 114 GENERAL PRINCIPLES OF CONTRACTS. not dispense with the produiitioL of the attesting witness when this is practicable. lb. § 7. Recording contracts, etc. In this country the recording of deeds, mortgages, and other instruments and contracts is so 'ini- versal that it is not usually overlooked or neglected. The mode and effect of recording the various instruments requiring it, will be noticed in their appropriate places, under the titles dis- cussed. See Deeds; Mortgages; Chattel Mortgages, etc. See 1 Broom & Had. Com. 769, Wait's ed., note 381. ARTICLE yill. OF THE CONSTRUCTION" OF CONTRACTS. Section 1. In generaL All contracts derive their force from the mutual assent of the parties to the terms and conditions specified therein ; and, therefore, it is not only necessary to interpret those terms for the purpose of ascertaining the inten- tion of the parties in entering into the agreement, but also so to construe them as to give legal effect and operation to such in- tention. The importance of a reasonable and just construction of every instrument or contract is quite evident and certain. So, too, it is equally important that the rules of construc- tion should be regulated by law, and be governed by dis- tinct, settled, principles, so that there may be uniformity and certainty in their application. When any one particular contract is properly construed, justice will be done to the parties directly interested in it. But, it is essential that all other contracts should be construed by general rules which are uniform, consistent and just. In this way all parties may secure justice for themselves ; for they will then know be- forehand the force and effect of the words or terms they may use, and can then enter into contracts, or refuse to do so, or make or accept instruments, as they may judge it to be for their interest. To secure consistency and uniformity in the application of rules of construction, it is necessary that these rules should be re- garded as principles of law, and that their construction and application should be confided to the courts, to be dealt with as a matter of law, and not as a question of fact. § 2. Construction of contracts is for the court. As has just been stated it is proper that the construction of contracts should be left to the courts ; and such is also the rule of law, as it is GENERAL PRINCIPLES OF CONIRACIS. 115 well settled that tlie construction of all contracts is for tbf^ court* whether the contract be sealed or unsealed, written or orai. That such is the rule as to written instruments or contracts, see JVash v. Brlsco, 51 Me. 417; MondnocJi R. R. v. FeU^ 52 N. H. 379; Wason v. Eowe, 16 Yt. 525; Smitli v. Faulkner, 12 Gray, 251; McAvoy \. Long, I^IW. 147; Collins v. Banhury, 5 Ired. 118; Emery v. Owings, 6 Gill. 191; Williams v. Waters, 36 Ga. 454; State v. Lefaiwe, 53 Mo. 470. If the contract be oral, and there is a dispute as to its terms, that question is one of fact, to be tried by a jury, or by the court. Guptill V. Damon, 42 Me. 271; Glohe WorJcs v. Wright, 106 Mass. 216; Illinois, etc. v. Oassell, 17111.389; Ohapin v. Potter, 1 Hilt. 366; Bradbury y. Marhury, 12 Ala. 520. But, after the terms of the contract are thus settled, or, if they are agreed upon by the parties, the construction is then for the court. lb. Pratt v. Langdon, 12 Allen, 544 ; Fosterman v. Parker, 10 Ired. 477; Rhodes y. Chesson, Busbee's Law, 336. See 1 Broom & Had. Com. 725, Wait's ed., note 354. § 3. Construction when for a jury. When the contract is oral, and there is a dispute as to the terms, it is a question of fact to be settled by a jury what the agreement really was. See the cases cited in the last section, and Moore v. Garwood, 4 Exch, 681, 690 ; Berwick v. Horsfall, 4 C. B. (N. S.) 450 ; Edwards v. Ooldsmith, 16 Penn. St. 43 ; Guptill v. Damon, 42 Me. 271 ; Illinois, etc., v. Cassell, 17 111. 389. The mere loss of a document, so that parol evidence is admis- sible to prove its contents, does not make the construction of its contents a question for a jury. Berioick v. Horsfall, 4 C. B. (N. S.) 450 ; see the cases cited in the last section. But it has been held that where the contents of a written contract which is lost is proved by parol, without any copy, its construction must be determined by the jury. Moore v. Holland, 39 Me. 307. The rule that the construction of a contract is for the court has an apparent exception in the case of unusual, technical or official words, when used in a contract. If the meaning is to be obtained from experts, or from persons acquainted with the par- ticular art to which these words refer, or from authoritative defi- nitions, the evidence on this point may be conflicting, and then a question is presented for a jury. Eaton v. SmitJi, 20 Pick. 150; Brown v. Orland, 36 Me. 376 ; Burnham v. Allen, 1 Gray, 496 ; Taliaferro v. Cundiff, 33 Texas, 415. So where the evi- dence of a contract consists in part of written evidence, and 116 GENERAL PRINCIPLES OF COIN TRACTS. in part of oral commiinications, or other nnwrittt?i evidence, it is left to the jury to determine npon the whole evidence what the contract is. Edtoards v. Goldsmith, 16 Penn. St. 43 ; Bom eisler v. Bobson, 5 Whart. 398 ; MorreJl v. Frith, 3 M. & W. 404 ; OloheWorks v. Wright, 106 Mass. 216 ; Moorey. Oarsvood,. 4 Exch. 681, 690 ; Shore v. Wilson, 9 CI. & Fin. 510. § 4. The construction is the same at law or in equity. The general rules or maxims which control the interpretation or con- Btruction of contracts are the same at law or in equit3^ Doe v. Laming, 2 Burr. 1108 ; Eaton v. Lyon, 3 Ves. 692 ; Ball v. Storie, 1 Sim. & Stu. 210. And there is no difference in the rule, whether the contract be sealed or unsealed. 8eddon v. Senate, 13 East, 74 ; Hewett v. Painter, 1 Bulsb. 174, 175 ; Robertson v. French, 4 East, 130 ; Kane v. Hood,> 13 Pick. 281. § 5. The intention of the parties controls. The object of con- struction is to ascertain what the parties intended by the terms and expressions used in a contract, and the courts will, so far as the rules of law will permit, give effect to that intention. In in- terpreting a contract the courts will endeavor to avoid any con- struction which does violence. to the rules of language, or to t'he rules of law. And, while an effort will be made to construe a contract as the parties understood it, and intended to agree, yet the construction and the effect given to a contract must be in harmony with the law and the general principles of the language. The words used must not be perverted from their proper signifi- cation to one entirely different, although it may be evident that the words used, either through ignorance or inadvertence, express a meaning very different from that intended by the parties. Thus, where a contract relates to " horses," the courts will not construe it to relate to " oxen," even though it might be shown by parol evidence that such was the real intention. How far parol evi- dence is admissible in such cases will be discussed in § 23, post. Generally, when the intent can be distinctly and clearly ascer- tained from the language used, it will prevail, not only in cases in which it is not fully and clearly expressed, but even where it con- tradicts particular terms of the agreement. The object of the law, in adopting rules of construction, is to ascertain the meaning of the parties, and not to declare or impose terms or meanings upon them, and, therefore, the language or expressions made use of by them will be subservient to the evident intentior. Where the terms of a promise admit of more senses then o" 9^ the prom- GENERAL PRINCIPLES OF CONTRACTS. 117 ise is to be performed in that sense which the promisor knew or believed at the time the promisee received it. Barlow v. Scott^ 24 N. Y. (10 Smith) 40 ; Gunnison v. Bancroft, 11 Vt. 493. Temures promised the garrison of Sebastia that if they would surrender, no blood should be shed. The garrison surrendered, — and Temures buried them all alive. Now Temures fulfilled the promise in one sense ; and, in the sense, too, in which he intended it at the time ; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it ; which last sense was the one in which he was, in conscience, bound to have per- formed it. In construing a contract, the courts ought to consider the acts to be done under it, and the manner of performing them, and then such a construction should be adopted as will give effect to the provisions which carry out the evident intent of the contract ; and to effect this, the entire contract should be consid- ered in determining the meaning of any of its parts. People v. Gosper^ 3 Nebr. 285. Courts, in the construction of contracts, look to the language employed, and the surrounding circum- stances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation ^s the parties who made the contract, so as to view the circum- stances as they viewed them, and so to judge of the meaning of the words, and of the correct application of the language to the things described. Nash v. Toione, 5 Wall. (U. S.) 689, 699 ; Richer v. Fairhan'ks^ 40 Me. 43. If the intent can be clearly and distinctly ascertained from the language used, it will prevail, not merely in those cases where it is not fully and clearly ex- pressed, but even where it contradicts particular terms of the agreement. CooJce v. Barr^ 39 Conn. 296. Where the terms used are such as to include other words which denote the same thing, then such a construction may be adopted as will carry into effect the intention of the parties. Thus, the term ''men" will beheld to mean "mankind," and to include " women ; " and the word "horse " may be construed to mean "mares." State v. Dunna- tant, 3 Brev. (S. C.) 9 ; see Pennsyl'Gania Coal Co. v. Delaware & Hudion Canal Co., 29 Barb. 589 ; Packard v. Hill, 7 Cow. 434; 5 Wend. 375. A construction that will give an unlimited and customary signification to every part of a contract is to be pre- ferred. Mother v. Great Western Insurance Co.. 3Keyes, 17 ; 4 Abb. Ct. App. 76. 118 GENERAL PRINCIPLES OF CONTRACTS. Sf contracts are to be construed according to the general intent wliicli appears from the language used in them. Morey v. Haman, 10 Vt. 567 ; Gray v. ClarJc, 11 id. 583 ; Hunter v. Miller^ 6 B. Monr. 612. Where the language of a contract is such that no doubt or uncertainty exists as to the meaning of the terms used, parol evidence is not admissible to show that a different meaning was intended. Ourtiss v. Howell, 39 N. Y. (12 Tiff.) 211 ; Kimball V. Brawner, 47 Mo. 398 ; Warren v. Jones^ 51 Me. 146. And if the language is plain and unequivocal, there is no room for construction, and even though a party may have misapprehend- ed it, or it may not express his real intent, still it must becarried into eflfect according to its plain meaning. StroMcJcer v. Farmers' BanTc, 6 Penn. SI 41 ; Benjamin v. MeConnell, 4 Gilm. 536 ; Secomhe v. Edwards, 28 Beav. 440 ; Railroad Company v. TrimUe, 10 Wall. (U. S.) 367 ; Callender v. Dinsmore, 55 N. Y. (10 Sick.) 200 ; Huntington v. Dinsmore, 6 N. Y. S. C. (T. & C.) 195 ; 4 Hun, 66. If mutual contracts are not fully and definitely expressed, the law requires that such a construction shall be put upon them as will secure equal and exact justice. Whites v. Folk, 36 Texas, 502. § 6 Situation of parties, and evidence of surrounding circum- stances. To enable us to arrive at the real intention of the parties, and to make a correct application of the words and language of the contract, to the subject-matter, and to the objects professed to be described, all the surrounding facts and circumstances may be taken into consideration. The law does not deny to the reader the same light and information that the writer enjoyed ; he may acquaint himself with the persons and circumstances that are the subjects of the allusions and statements in the writing, and is entitled to place himself in the same situation as the party who made the contract, to view the circumstances as he viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. Share v. Wilson, 9 CI. & Fin. 555, 569 ; Macdonald v. Longhottom, 1 EL & Bla. 987; Mumford v. Getting, 7 C. B. (N. S.) 305; Carr v. Montejiore, 5 Best & Smith, 408 ; Hurley v. Brown, 98 Mass. 545 ; Karmuller v. Krotz, 18 Iowa, 352 ; Rose v. Roberts, 9 JNIinn. 119 ; McCleary v. Edwards, 27 Barb. 239 ; Dent v. North American Steamship Co., 49 N. Y. (4 Sick.) 390 ; Field v. Schricher, 14 Iowa, 119. GfENERAL PRINCIPLES OF CONTRACTS. US § 7. Construction to he reasonable. Every agreement or con tract ought to receive a reasonable construction; and, if it is omissive in some particular, or if the terms are not in entire har- mony, the true intent of the parties is to be carried into effect when practicable. If a clause in a contract is susceptible of two different constructions, that one is to be preferred which will give it some operation, rather than that which will have none. ArcJtibald v. T/iomas, 3 Cow. 284 ; PecTiliam v. Haddock^ 36 111. 38; Riley v. Yaiihouton^^WYS,^. (4 How.) 428; Evans v. San- ders, 8 Port. (Ala.) 497; Higgins v. WasgaU, 34 Me. 305. An agreement to pay interest will be construed to mean legal inter- est. Archibald v. Tliomas, 3 Cow. 284. If no time is specified for the performance of a contract, the law will require that it shall be performed within a reasonable time. Little v. Hobhs, 34 Me. 357; Warren v. Wheeler, 8 Mete. (Mass.) 97; Adams v. Adams, 26 Ala. 272; Luclchart v. Ogden, 30 Cal. 547; Wright v. Maxioell, 9 Ind. 192; Waterman v. But- ton. 6 Wis. 265. Where a note is payable in specific articles without mention- ing any day or place of payment, it will be construed to be pay- able on demand, and an actual demand will be necessary before suit brought. Lobdell v. Hopkins, 5 Cow. 516; Rice v. Church- ill, 2 Denio, 145; Durlcee v. Marshall, 7 Wend. 312; CooJc v. FerraVs Admrs., 13 id. 285. Where a chattel note is payable in portable articles, on or before a specified day, but no place of payment is specified, the residence of the creditor is the place of payment. La Farge v. RicTiert, 5 Wend. 187; Ooodwin v. HolhrooJc, 4 id. 377; Wil- mouth V. Patten, 2 Bibb (Ky.), 280. When such note is made by a mechanic, manufacturer, merchant or producer, and the note does not specify any place of payment, the general rule is, that the note is payable at the shop of the mechanic, the manu- factory or warehouse of the manufacturer, the store of the mer- chant, or the farm of the producer. Lobdell v. HopTcins, 5 Cow. 516; Rice v. Churchill, 2 Denio, 145. A contract to do work implies that the workman possesses, and that he will use reasonable skill in performing the work. McDonald v. Simpson, 4 Ark. 523 ; Dastor v. Broion, 25 Ga. 24; Smith v. Nelson, 33 Iowa, 24. The foregoing are but a few of the numerous instances in which a reasonable construction of a contract will imply duties, require skill and care, and supply evident omissions. 120 GEIVTERAL PRINCIPLES OF COIS'TRACTS. § 8. Construction to he liberal. The interpretation and the construction of a contract ought to be liberal; and the words should be taken in their common and most comprehensive sense, unless there is something to show that they were meant to be used in a sense more limited or confined. White/wuse v. Liner- pool Oas Co., 5 C. B. 798; Mallan v. May, 13 M. & W. 511, 517; Davis V. Barney, 2 Gill. & J. 382; State v. Bunnavant, 3 Brev. (S. C.) 9. In construing contracts, courts will endeavor to avoid what is unequal, unreasonable and improbable, if this can be done con- sistently with the terms of the contract. Royalton v. Royalton & Woodstock Turnpike Co., 14 Yt. 311. The construction of commercial contracts is especially liberal. BellY. Bruen, 1 How. (U. S.) 169; Lawrence v. McCalmont, 2 id. 426. A contract by a manufacturer, to make ani finish certain specified goods "as soon as possible," means within a reason- able time, due regard being had to the manufacturer's means, his engagements, and the nature of the articles. Attwood v. Mrnery, 1 C. B. (N. S.) 110. A promissory note, payable four months after date, or as soon as the maker shall collect a specified debt from B, is a promise to pay at the end of four months at all events, and sooner if such debt shall be sooner collected. McCarty v. Howell, 24 111. 341. A written promise to pay as soon as collected at A, etc., is an absolute promise to pay upon the expiration of a reasonable time for col- lecting the sum named. Uhsdell v. Pierson, 22 Mo. 124. A contract by a planter to deliver cotton raised by him, as soon as it could be picked out and shipped, does not mean in the short- est possible time in which, by any means, or upon any terms, it could be done, but that he may employ the usual mode of trans- portation. Waddell v. Reddick, 2 Ired. L. (N. C.) 424. See Streeter v. Streeter, 43 111. 155; Johnson v. Chambers, 12 Ind. 102. If an act is to be done on demand, it must be done within a reasonable time after the demand. Blackwell v. Fosters, 1 Mete. (Ky.) 88. § 9. Construction to be favorable. The construction of a con tract ought to be favorable, so that it may be maintained rather than defeated. Tfirall v. Newell, 19 Vt. 202 : Brown v. Slater, 16 Conn. 192 ; Brewer v. Hardy, 22 Pick. 376 ; Rogers v. Eagle Fire Co., 9 Wend. 611 ; Adams y. Adams, 26 Ala. 272. A clause in a contract, which is susceptible of two constructions, will be taken in that sense which will give it some operation, GENERAL PRINCIPLES OF CONTRACTS 121 instead of one that will give no effect. Archibald v. Thomas, 3 Cow. 284 ; Hunter v. Anthony, 8 Jones' L. (N. C.) 385; Peckham, V. Haddock, 36 111. 38 ; Lynch v. Limngston, 8 Barb. 463 ; 6 N Y. (2 Seld.) 422 ; Emns v. Sanders, 8 Port. (Ala.) 497. If one construction of a contract will render it illegal, and another will make it valid, the latter will be preferred. Merrill V. Melchoir, 30 Miss. 516 ; Chittenden v. French, 21 111. 598 ; Archibald v. Tliomas, 3 Cow. 284 ; Thrall v. Newell, 19 Yt. 202; Riley v. Vanhouten, 4 How. (Miss.) 428 ; Olcott v. Tioga H. R. Co., 27 N. Y. (13 Smith) 546 ; Patrick v. Grant, 14 Me. 233. A party who takes an agreement i)repared by another, and upon its faith incurs obligations or parts with property, should have a construction giyen to the instrument favorable to himself. Noonan v. Bradley, 9 Wall. (U. S.) 394. § 10. Words construed according to their popular sense. The construction to be given to a contract is that which is the plain, clear, and obvious result of the terms used in it ; and these terms are to be understood in their plain, ordinary, and popular sense. Hawes v. Smith, 12 Me. 429 ; Mansfield, etc., R. R. Co. v. Yeeder, 17 Ohio, 385; Mc Williams v. Martin, 12 Serg. & R. 260; Lowber V. LeRoy, 2 Sandf. (N. Y.) 202 ; Goosey v. Goosey, 48 Miss. 210. If words have acquired a particular meaning, distinct from the popular sense of the same words, they may, in some cases, be understood in the particular sense, if that is necessary to give effect to the intention of the parties. lb. Findley v. Findley, 11 Graft. (Ya.) 434. In construing words, the general rule is, to prefer the compre- hension to the restricted, the general to the particular, and the common to the unusual sense. § 11. Technical words, how construed. Where a contract relates or refers to principles of science, or art, or use, the technical phraseology of some profession, occupation, or common wordfc in a technical sense, or the words of a foreign language, their true and precise meaning may be shown by the evidence of experts, or persons who possess competent knowledge and skill for that purpose. Share v. Wilson, 9 Clark & Fin. 511 ; Cabarga V. Seeger, 17 Penn. St. 514 ; Sheldon v. Bdbcock, 4 Hill, 129 ; Bana v. Fiedler, 12 N. Y. (2 Kern.) 40. If the evidence of the experts is conflicting, or uncertain, the meaning of the words will be for the jury, but their construction for the court, ante, 114, § 2. " The rule is that words, or forms of expression which are not of universal use, but are purely local YoL. L — 16 122 "jtENERAL PRilS'CIPLES OF CONTRACTS. or technical, may be explained by parol evidence, and the same is true of words or phrases having two meanings, one common and universal, and the other peculiar, technical or local. In such case parol evidence may be given of facts tending to show in which sense the words were used. Where characters, marks or technical terms are used in a particular business, unintel- ligible to persons unacquainted with such business, and occur in a written instrument, their meaning may be explained by parol evidence, if the explanation is consistent with the terms of the contract." Callender v. Dinsmore, 55 N. Y. (10 Sick.) 200, 205, 206 ; Barnard v. Kellogg, 10 Wall. 383. In mercantile contracts the words used may, by usage, bear a meaning very different from their natural one ; and such mean- ing may be made matter of evidence; and it is for this reason that mercantile contracts are to be construed according to the usage and custom of merchants ; and when such contracts contain peculiar expressions which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of these expressions is, although it is for the court to decide what is the meaning of the contract. 1 Chit, on Cont. 116; ante, 114, 115, §§ 2, 3; Eaton v. Smith, 20 Pick. 150; Smith v. Faulk- ner, 12 Gray, 255, 256; Bohinsony. Fiske, 25 Me. 405; Wayne v. Steamboat General Pike, 16 Ohio, 421 ; Brooks v. Cotton, 48 N. H. 50; S. C, 2 Am. Rep. 172. Technical rules of construction are not to be resorted to where the meaning of the parties is obvious. Noyes v. NicJiols, 28 Vt. 159. § 12. The construction is to 1be upon the whole contract. In construing a contract, much light will be thrown upon the subject when the object and intent of the parties have been ascertained. The parties make the contract, and it may be assumed that they had the same purpose and object in view in the whole of it ; and, if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated and ex- plained by the light of the other terms. And this is the reason for the rule, that the exposition or construction of a contract is to be upon the entire contract, in all its parts and terms, and not upon separate and disjointed portions of it. Washburn v. Gould,, 3 Story, 122, 162; C?iase v. Bradley, 26 Me. 531 ; Gray v. Clark, 11 Vt. 583; Warren v. Merrijield, 8 Mete. (Mass.) 96; McNairy V. Thompson, 1 Sneed, 141 ; Kelly v. Mills, 8 Ohio, ^'25v Spring- steen V. Samson, 32 N. Y. (5 Tiff.) 703 ; Barnwn v. Thurston^ GENERAL PRINCIPLES OF CONTRACTS. 12c! 17 Md. 470 ; Rose v. Roberts, 9 Minn. 119 ; Stewart v. Lang, 37 Penn. St. 201 ; SwisJier v. GrumUes, 18 Texas, 164. If a contract is made up of several instruments executed at the same time and relating to the same matter, they are to be construed together as forming parts of one contract. Salmon Falls Manitf. Co. v. Portsmouth Co., 46 N. H. 249 ; Stacey v. Randall, 17 111. 467; Rogers v. Smith, 47 N. Y. (2 Sick.) 324; Cor dray v. Mordecai, 2 Rich. (S. C.) 518 ; Wallis v. Beauchamp, 15 Texas, 303 ; Strong v. Barnes, 11 Yt. 221 ; Sewall v. Henry, 9 Ala. 24. The rule is the same where such instruments are executed at different times. lb. VanHaganv. Van Rensselaer, IS Johns. 420; Adams v. Hill, 1 6 Me. 215 ; Logan v. Tibbott, 4 Green (Iowa), 389. The court will read several papers in such order of time and priority as will carry into effect the intention of the parties. Newhall v. Wright, 3 Mass. 128 ; Whiteliurst v. Boyd, 8 Ala. 375. From the mere fact that two instruments were executed by the same parties, on the same day, it does not necessarily follow that they were both executed at the same time, and were a part of the same transaction. Mann v. Witheck, 17 Barb. 388. And though several instruments are executed at the same time, they ought not to be construed together unless they are between the same parties. Craig v. Wells, 11 N. Y. (1 Kern.) 315. In ascertaining the object of the contract, and the intention of the parties, not only will the entire contract be considered, but one clause in the contract may be used for the interpretation of another. Morey v. Homan, 10 Yt. 565 ; Chase v. Bradley, 26 Me. 531; Heywoody. Perrin, 10 Pick. 230; Cobbs v. Fouritain, 3 Rand. (Ya.) 487; Williamson y. McClure^^l Penn. St. 402; T)-acy V. Chicago, 24 111. 500. § 13. Inconsistent clauses. It has been held, that, as a gen- eral rulH. v/liere the clauses of an instrument are repugnant and incompatible, the earlier one prevails in deeds and other instru- ments between living persons, where the inconsistency is not so great as to render the instrument void for uncertainty. Mott v, Richtmyer. 57 N. Y. (12 Sick.) 49, 63; Harvey v. Mitchell, 31 N. H. 575 ; Abbott v. Abbott, 53 Me. 360, 361 ; Lippett v. Kelley, 46 Yt. 516; Doane v. Willcutt, 16 Gray, 368, 371; Law v. Hemp stead, 10 Conn. 23; Bass v. Mitchell, 22 Texas. 285, 294; Jack son V. Clark. 7 Johns. 217; Goosey v. Goosey, 48 Miss. 210. 124 GENERAL PRINCIPLES OF CONTRACTS. Where the language used by the parties to a contract is indefinite and ambiguous, and, hence, of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. Chicago v. Sheldon, 9 WaU. (U. S.) 50. § 14. Against grantor, promisor, etc. Where the words or terms used are doubtful or ambiguous, they are construed or taken most strongly against the person who gives or undertakes, or enters into an obligation. Deblois v. Earle^ 7 R. I. 26; Pike V. Munroe, 36 Me. 309 ; Mills v. Catlin, 22 Y t. 98 ; Jackson v. Blodgett, 16 Johns. 172; diaries River Bridge v. Warren Bridge, 11 Peters, 589; Evans v. Saunders, 8 Port. (Ala.) 497. Where doubt exists as to the construction of an instrument prepared by one party, upon the faith of which the other party has in- curred obligations or parted with his property, that construction should be adopted which will be favorable to the latter party; and where an instrument is susceptible of two constructions — the one working injustice and the other consistent with the right of the case — that one should be favored which upholds the right. Noonan v. Bradley, 9 Wall. (U. S.) 395, 407; Barney v. NewGomb, 9 Cush. (Mass.) 46. Where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he knew or had reason to suppose it was understood by the promi- see. Hoffman v. yEtna Ins. Co., 32 N. Y. (5 Tiff.) 405, 413 ; Bar- low V. Scott, 24 N. Y. (10 Smith) 40. But a party is not bound to do acts not contracted for, merely because he knew that the other party expected and understood he would perform them. Johnson v. Sellers, 33 Ala. 265. And the understanding or intention of a party to a contract does not in all cases limit his liability. White v. Yan Horn, 19 Iowa, 189. In the absence of fraud, a party is bound by his written agree- ment, notwithstanding he may have misapprehended the legal effect of it. Strohecker v. Farmers'" Bank, 6 Penn. St. 41 ; Holmes v. Hall, 8 Mich. 66. The rule that the words of an instrument are to be taken most strongly against the grantor, is one of last resort, and is appli- cable only where the language used will equally admit of either of two or more interpretations. Falley v. Giles, 29 Ind. 114; Adams v. Warner, 23 Yt. 411, 412; Palmer v. Warren Ins. Co., 1 Story, 369. The folly or the wisdom of tlie contract as one or another construction might be placed upon its terms, is a dan GENERAL PRINCIPLES OF CONTRACTS. 125 gerous element to introduce into the interpretation of agreements. ^Lowher v. Le Roy, 2 Sandf. 202, 220. The words of a contract are not only to be taken most strongly against the party using them, but he is not allowed to punctuate the writing so as to affect his liability. White v. Smithy 33 Penn. St. 186. § 15. General words. General words may be aptly restrained according to the subject-matter, or persons to which they relate. Broom's Leg. Max. 646. In construing the words of any instru- ment, then, it is proper to consider : 1st. AVhat is their mean- ing in the largest sense which, according to the common use of language, belongs to them ? and, if it should appear that that sense is larger than the sense in which they must be understood in the instrument in question, then, 2ndly. What is the object for which they are used ? They ought not to be extended beyond their ordinary sense in order to comprehend a case within their object, for that would be to give effect to an intention not ex- pressed ; nor can they be so restricted as to exclude a case both within their object and within their ordinary sense, without vio- lating the fundamental rule, which requires that effect should be given to such intention of the parties as they have used fit words to express. Id. 648; Borradaile v. Hunter, 5 Man. & Grang. 639, 653 ; S. C, 5 Scott (N. R.), 431, 432. In all written instruments, whether public or private, general and unlimited terms are re- strained and limited by particular recitals made in connection therewith. Vaughan v. Porter, 16 Vt. 266; Baxter v. State^ 9 Wis. 38, 45; Torrance v. McDougald, 12 Ga. 526. § 16. Grammatical rules how applied. Every contract or instru- ment in writing ought to be grammatically written, and should be construed according to the rules of grammar. This, however, is not strictly a rule of law, for it is a principle of law that bad grammar does not vitiate an instrument. The grammatical con- struction is not always, in judgment of law, to be followed ; and neither false English, nor bad Latin, will make void a deed, when the meaning of the party is apparent. Broom's Leg. Max. 686. However plain the grammatical construction of a sentence may be, if it be clear from the contents of the instrument that the apparent grammatical construction cannot be the true one ; then that which, upon the whole, is the true meaning shall pre- vail, in spite of the grammatical construction of such particular sentence. WaugJi v. Middleton, 8 Exch. 352, 357 ; Morey v Homan, 10 Yt. 565. The general rule is, that all relative words 126 GENERAL PRINCIPLES OF CONTRACTS. SLve read as referring to the nearest ante'cedent. But, in ascer- taining the meaning of a sentence, reference is not always to be made to the next antecedent, or to the next subsequent, but re- gard is to be had to the subject-matter. Nettletoii v. Billings , 13 N. H. 446 ; Gray v. Olark, 11 Yt. 583 ; Ohur chill v. Reamer, 8 Bush (Ky.), 256, 260, 261, In construing an instrument which was badly written and punctuated, the court, in one case, inserted a period, and made what was written as one sentence, read as two sentences. EnglisTi v. McNair, 34 Ala. 40 ; Denny, in re, 8 Ir. R. Eq. 427. A contract is to be construed by the words in which it is written ; and punctuation may aid in ascertaining its true meaning, but cannot be used to effect an alteration in the sense of the words. White v. Smith, 33 Penn. St. 186 ; Churchill v. Reamer^ 8 Bush (K}^), 256, 260. Punctuation is a most fallible standard by which to interpret a writing ; it may be resorted to when all other means fail ; but the court will first take the instrument by its four corners in order to ascertain its true meaning ; if that is apparent, on judicially inspecting the whole, the punctuation will not be suffered to change it. Ewi.ng V. Burnett, 11 Peters, 41, 54. As to the punctuation of statutes, see 1 Broom & Hadley's Com. 78, note 51, Wait's ed. § 17. Transposition of words or clauses. It is sometimes nec- essary to transpose words or clauses in giving construction to a writing, for the purpose of determining the actual intention of the parties. And, in such cases, it is not material in what part of the instrument any clause is written, as it will be read as of any place or context for the purpose of effectuating the meaning and intent of the parties. This, however, will not be done in any case except where the certain and evident intent of the par- ties requires it. Where the language of an instrument is neither uncertain nor ambiguous, it is to be expounded according to its apparent import ; and it is not to be warped from the ordinary meaning of its terms,in order to harmonize it with uncertain sup- positions, in regard either to the probable intention of the parties contracting, or to the probable changes which they would have made in their contract, had they foreseen certain contingencies. 1 Story on Cont. § 780. In giving construction to a particular clause in an agreement, it is proper to consider the situation and relation of the parties, the subject-matter of the contract, and all the other provisions of the agreement. Williamson v. McClure, 37 Penn. St. 402 ; Tracy v. Chicago, 24 111. 500. GENERAL PRINCIPLES OF CONTRACTS. 127 § 18. Presumptions in relation to contracts. It is the policy of the law to sustain all fair, just and leg-al contracts ; and, there- fore, where there is a doubt whether a particular contract is legal or illegal, a preference will be given to that construction which will render it legal, when that construction is consistent with the entire language and terms of such contract. Archibald V. T/iomas, 3 Cow. 284; Chittenden v. FrencJi, 21 111. 598; Merrill v. Melchoir^ 30 Miss. 516. Persons are presumed tohavf^ acted legally in making a contract, until the contrary is shown. Tucker v. Streetman^ 38 Texas, 71. § 19. Contracts partly printed, and partly written. Where an instrument is partly printed and partly written, the latter portion will be preferred to the former, where there is a discrepancy or contradiction between the two parts. Harper v. Albany Mutual Ins. Co., 17 N. Y. (3 Smith) 194; American Express Co. v. PincTi- ney, 29 111. 392 ; Hoioard Fire Ins. Co. v. Bruner^ 23 Penn. St. 50; Moore v. Perpetual Ins. Co.., 16 Mo. 98. Printed blank forms which are intended to be subsequently filled up by writing are in common and extensive use, as in the case of insurance policies, and in such cases the written part prevails. lb. It is clear in such cases that what is printed ia intended to apply to large classes of contracts, and not to any one exclusively ; and the blank spaces are left for the purpose of giving room for the insertion of special statements or provis- ions, which may relate to or affect * particular contracts subse- quently entered into. In giving construction to such contracts the courts assume that the attention of the parties was more par- ticularly called to that portion of it which is in writing, than to the general expressions of the printed part. Weisser v. Mait- land, 3 Sandf. 318, 322 ; Woodruff v. Commercial Mut. Ins. Co.^ 2 Hilt. 122. The rule that written prevails over printed matter applies to other transactions than contracts. An elector who uses a printed ballot and writes upon it the name of a candidate as a substitute for the printed name, will be deemed to have intended to vote for the person whose name is thus written, even though the printed name be not erased. People v. Saxton, 22 N. Y. (8 Smith) 309. § 20. Effect of custom or usage. Custom sometimes has an influence upon contracts. But custom and usage are not to be considered as the same things. Custom is the thing to be proved, and usage is the evidence by which the existence of the custom 128 GENERAL PRINCIPLES OF CONTRACTS. is established. Whether a custom exists is a question of fact. But, ill the proof of this matter of fact, questions of law of two kinds may arise. One is, whether the evidence offered is admissible, which is to be settled by the common principles of the law of evidence. The other is, whether the facts stated or proved are sufficient in law to establish the existence of a custom. No cus- tom can be proved or permitted to influence the construction of a contract, or to vary the rights of the parties, if the custom itself be illegal. And a custom can no more be set up against the clear intention of the parties, than it could against their express agree- ment. " The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence, and contracted with refer- ence to it. It is often employed to explain words or phrases in a contract of doubtful signification, or which may be understood in diflerent senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot be received in evidence to affect it." Per Davis, J. Barnard v Kellogg, 10 Wall. 383, 390; Callender v. Dinsmore, 55 N. Y. (10 Sick.) 200, 208 ; Kimball v. Browner, 47 Mo. 398. The object or office of custom or usage is not to contradict the terms of a contract, but to furnish an explanation of what would otherwise be an insufficiently expressed intention of the parties. And custom or usage may be proved, not only to explain the meaning of terms to which a peculiar and technical meaning is thus affixed, but also to supply evidence of the intentions of the parties in respect to matters with regard to which the con- tract itself aff"ords a doubtful indication, or perhaps no indica- tion whatever. Hutton v. Warren, 1 Mees. & Wels. 475. And, therefore, an established and well known custom may add to a contract terms or stipulations not contained in it ; on the ground that the parties may be supposed to have had them in their minds as a part of their agreement, when they put upon paper or expressed in words the other part of it. lb. Lamb v. Klaus, 3D Wis. 94. Where a custom or usage is not a general one, or is one not generally known, it will not be intended that the parties contracted with reference to it. And before a custom or usage will be permitted to affect or control the terms of a contract. GEJS^ERAL PRINCIPLES OF CONTRACTS. 12S sucli custom or usage must be so far established, and so far known to the parties, as to render it probable that their contract was made in reference to it. Sipperly v. Stewart, 50 Barb. 62 ; Gallup V. Lederer, 1 Hun, 282 ; S. C, 3 N. Y. S. C. (T. & C.) 710 ; Farmers & Mechanics National Bank, etc., v. Sprague, 52 N. Y. (7 Sick.) 605 ; Walls v. Bailey, 49 N. Y. (4 Sick.) 464 ; S. C, 10 Am. Rep. 407. To render a custom or usage of trade valid and binding, it must be known, certain, uniform, reasonable, and not contrary to law. Bassett v. Lederer, 1 Hun, 274; S. C, 3 N. Y. S. C. (T. & C.) 671 ; Barnard v. Kellogg, 10 Wall. 383 ; Chenery v. Goodrich, 106 Mass. b'o'o ; South Western Freight Co. V. Stanard, 44 Mo. 77. A clear, certain and distinct contract is not liable to modifica- tion by proof of custom. Simmons v. Law, 4 Abb. Ct. App. 241; S. C, 3 Keyes, 217 ; The Reeside, 2 Sumn. 567. A custom, to be controlling, must be general, not narrow, local, and confined, nor the mere opinion of a few persons. Rogers v. Mechanics'' Lns. Co., 1 Story, 606 ; Renner v. BanJc of Columbia, 9 Wheat. 581; Child v. Sun Mutual Lns. Co., 3 Sandf. 26 ; Taunton Copper Co. v. Merchants' Lns. Co., 22 Pick. 108 ; Austin v. Crawford, 7 Ala. 335 ; Weber v. Kingsland, 8 Bosw. 415. So it must be definite and certain, Lot vague, un certain and indefinite. Oelricks v. Ford, 23 How. (U. S.)49, Bassett v. Lederer, 1 Hun, 274 ; S. C, 3 N. Y. S. C. (T. & C.) 671. It must be uniform, not fluctuating, and occasional. Cope V. Dodd, 13 Penn. St. 33 ; United States v. Buchanan, 8 How. (U. S.) 83, 102 ; Lawrence v. McGregor, Wright, 193. It must be reasonable. Bowen v. Stoddard, 10 Mete. (Mass.) 380 ; Jor- dan V. Meredith, 3 Yeates, 318 ; Browning v. Long Island R. R. Co., 2 Daly, 117. A custom or usage which is illegal, or one that violates the provisions of a statute, cannot be enforced. New York Firemen lns. Co. V. Ely, 2 Cow. 678 ; Perkins v. Franklin Bank, 21 Pick. 483. Proof of a local usage in a particular trade is not admis- sible to control the rules of law upon the subject. Higgins v. Moore, 34 N. Y. (7 Tifi".) 417 ; Groat v. Gile, 51 N. Y. (6 Sick.) 431. § 21 . Of the law of place. It may be stated as a general rule, that a contract which is valid by the law of the place where it is made is valid everywhere ; and, on the other hand, if it is void or illegal by the law of the place where it is made, it is void everywhere. Gassett v. Godfrey, 26 N. H. 415 ; Bank of United States V. DonnaUy, 8 Peters, 361 ; Fear sail ^ Bwighi 2 Mass. Vol. I. — 17 190 GENERAL 3^RINCIPLES OF CONTRACTS. 88 ; Smith v. Mead^ 3 Conn. 253 ; Houglitaling v. Ball, 20 Mo. 536; Etiaiis v. KiUrell, 33 Ala. 449 ; Phinney v. Baldwin, 16 111. 108 ; McAllister v. Smith, 17 id. 328 ; Brown v. iVe?)/^, 27 Miss. 801 ; Shelton v. Marshall, 16 Texas, 344. There is an exception to the general rule, that a contract which is valid at the place where made is valid in all places, and that is, where the contract is injurious to the public rights, offen- sive to the morals, or in contravention of the policy or laws of the place where it is sought to be enforced. Van Reimsdyck V. Kane, 1 Gallison, 371 ; Haroey v. Richards, 1 Mason, 381 Blanchard v. Russell, 13 Mass. 1 ; Lodge v. Phelps, 1 Johns Cas. 139; Hall v. Costello, 48 N. H. 176 ; S. C, 2 Am. Rep. 207 Hinds V. Bazealle, 3 Miss. 837 ; Kanaga v. Taylor, 7 Ohio St. 134 Croshy v. Huston, 1 Texas, 203 ; Martin v. Hill, 12 Barb. 631 The general rule of exposition is, that a contract is to be con strued according to the law or custom of the place where it was made, if the actual intention of the parties in this respect is not expressly stated, but is left to be inferred from the nature, objects and occasion of the contract. Bank of Orange County v. Colby ^ 12 N. H. 520 ; Bryant v. Edson, 8 Vt. 325 ; Wilcox v. Hunt, 13 Peters, 378, 379 ; Pope v. Nicker son, 3 Story, 484 ; Trimbey v. Yignier, 1 Bing. (N. C.) 151, 159 ; De la Vega v. Vianna, 1 B. & Ad. 284. So, in general, the construction and force of a contract is to be governed by the law of the country where it is to be performed. Lee V. Selleck, 33 N. Y. (6 Tiff.) 615 ; Hall v. Costello, 48 N. H. 176; S. C, 2 Am. Rep. 207; Tillotson Y.Tillotson, 34 Conn. 335; Hunt V. Standart, 15 Ind. 33 ; Peck v. Hihhard, 26 Vt. 698 ; Sherman v. Oassett, 9 111. 521 ; Broadhead v. Noyes, 9 Mo. 56. A contract which is to be performed partly in one country and partly in another country has a double operation, and each part is to be construed according to the laws of the country in which it is to be performed. Pope v. Nicker son, 3 Story, 485 ; Lee v. Selleck, 32 Barb. 522; 20 How. 275 ; 33 N. Y. (6 Tiff.) 615; Pomt- roy V. Ainsworth, 22 Barb. 118 ; Chapman v. Robertson, 6 Paige, 627; Peck v. Ifayo, 14 Vt. 33. § 22. Of time of contract. A contract is sometimes to be con- strued according to the laws and usages existing at the time of its execution. And this will lead to a consideration of the state of the country, the manners of society, and the customs which pervaded and modified contracts at that time. But where the language of an instrument is clear and precisej OF ACTIONS FOUNDED UPON Tr.RTS. 131 that must control ; and it is only where the langu^e iss iot otful or obscure that such extrinsic evidence is admissible. Adams v. FrotMngham, 3 Mass. 360. § 23. Of parol evidence to explain or contradict contracts. The mle, as to admitting parol evidence for the purpose of varying or contradicting a written instrument, is, that where there is no ambiguity in the terms used, the agreement or instrument itself is the only evidence or criterion of the intention of the parties ; and this principle excludes all prior or contemporaneous parol evidence contradictorj^ to the writing itself, even though such evidence might clearly show that the real intention of the par- ties was at variance with the particular expressions used in the written instrument Hakes v, HotcJikiss, 23 Vt. 231 ; Wakefield V. Siedman, 12 Pick. 572 ; Morss v. Salisbury, 48 N.Y. (3 Sick.) 636 ; StrohecTcer v. Farmers' Bank, 6 Penn. St. 41 ; Hair v. La Brouse, 10 Ala. 548 ; Colwell v. Lawrence, 38 N. Y. (11 Tiff.) 71; 36 How. 306 ; 5 Trans. A pp. 307. A written contract generally contains the deliberate, definite, and final agreement of the parties, and therefore parol evidence of the negotiations prior to the execution of the written instru- ment is inadmissible either to vary or to contradict the writing. Harnor v. Graves, 15 C. B. 667; S. C, 29 Eng. Law & Eq. 220 : Cook V. Combs, 39 N. H. 592 ; Hakes v. Hotchkiss, 23 Vt. 231 ; Carter v. Hamilton, 11 Barb. 147 ; Fitch v. Woodruff & Beach Hon Works, 29 Conn. 82 ; Kain v. Old, 2 B. & C. 634. If, however, the language of the contract is ambiguous, obscure, or technical, parol evidence may be admitted to show the true meaning of the words used, and the intention of the parties. See ante, §§ 5, 11, 12, 13, 17, 19, 20. This subject need not be pursued further in this place, as it will be incidentally discussed in the various subsequent titles of this work. TITLE II. OF ACTIONS FOUNDED UPON TORTS. ARTICLE I. IN GENERAL. Section 1. Rules, definitions, and illnstrations. The law in relation to contracts, express or implied, having been discussed as fully as is required in this part of the work, it now remains a part of the task to explain some of the elementary principles of law 133 OP ACTIONS FOUNDED UPON TOETS. which relate to torts or wrongs. In a subsequt nt part of this work the subject of torts will be very fully discussed. A tort may be de- scribed, generally, as a wrong independent of contract. It involves the idea, if not of some infraction of law, at all events of some infringement or withholding of a legal right, or some violation of a legal duty. Actions for torts will lie in several different classes of cases, such, for instance, as for an injury to the person or to personal rights ; for the wrongful taking or conversion of personal property ; for an injury to personal or real ^^loperty, and the like cases. The right of action for a tort is generally founded, either upon an invasion of some legal right of person or property, or on the violation of some duty toward the public which has resulted in some damage to the plaintiff , or on the infrac- tion of some private duty or obligation which has beeii productive of damage to the complaining party. The importance of having a correct perception of the nature of a right of action founded upon a tort or wrong independent of contract, will justify a brief examination of each of the three classes just specified. The first class of cases relates to those instances in which com- plaint is made of the invasion of some legal right which is actually in the possession of the plaintiff, and to the enjoyment of which lie is exclusively entitled, as where a wrong is done to the person or to the reputation, where goods are tortiouslj^ converted, or a direct injury is done to property. In such cases, a plaintiff, to entitle himself to the recovery of damages, may be called upon to prove two things ; first, the existence of the right alleged ; and secondly, that it has been violated by the defendant. The existence of the right alleged or claimed will always have to be established by a reference to legal principles. Sometimes this right admits of easy proof, as in an action for a trespass in taking away goods, where the plaintiff would have a jprima facie case sufficient to entitle him to recover, upon merely proving his own previous possession of the goods, and that they were sub- sequently tortiously taken out of it by the defendant, and the reason of this is, that a bare possession of goods gives a right of action against a wrong-doer, for his invasion of the plaintift's right of possession or property. In other cases the proof may not be so simple, for the facts to be established may have to be deduced from a mass of details more or less complicated, and from facts and circumstances which maybe direct or very remote in their bearing upon the questiors ; and further, the existence of the right, as a matter of law, af fer the facts are established. OF ACTIONS FOUNDED UPON TORTS. 133 ma,y have to be proved by an appeal to elementary principles and deductions ingeniously drawn from them by a discussion of general doctrines of public policy, or by embarrassing inquiries touching the intention of the legislature. In the second class of cases, an action of tort may be founded upon the violation of some public duty toward the public, and the consequent damages to the plaintiff. To maintain an action in this class of cases, the plaintiff must prove three different mat ters, that is to say : the existence of the alleged duty, its breach, and the resulting damage. The existence of the duty must be shown, either by bringing the facts of the case within the reach and control of some acknowledged or settled doctrine of the com- mon law, or by showing that they are within the words, spirit. or purview of an act of the legislature. Whenever a duty has to be performed toward the public by an individual, and another is specially injured in consequence of the non-observance or non- discharge of such duty, or through misfeasance or malfeasance in its discharge, an action will lie at the suit of the latter against the former. The breach of a public duty which -causes damages to an individual, combines, in reality, two tortious ingredients, which are, according to circumstances, more or less clearly dis- tinguishable from each other ; one is the wrong done to the public, the other, the wrong done to the individual complaining. That which is, in strictness, correlative to a public duty, is a right enforceable at the suit of the public. But, then, the general rule of law is well settled, that individuals cannot enforce a public right, or redress a public inj^ir}^, by suits in their own names. Where they suffer wrong, or sustain damages in common with other members of the community, no personal right of action thence accrues. The private grievance is merged in that of the public ; and the remedy, if any exists, will be by public prose- cution, in order that the rights of the public may thus be vindi- cated. Even where one person sustains an injury in common with the public, and from circumstances in which he happens to be placed, suffers more frequently or more severely than others, he will not, on that account, have, as of course, a separate right of action. It is only where he suffers some special damage, differing in kind from that which is common to others, that a persona] remedy accrues to him. It may be repeated, that in every case belonging to the class now under consideration, it will be found as an ingredient of the right of action, that the defendant is chargeable with some nonfeasance, misfeasance, or malfeasance 134 OF ACTIONS FOUNDED UPON TORTS. of a public duty, constituting an offense, whether indictable or not, against the public, and also an injury productive of special damage to an individual. Where, then, a private action is brought for the recovery of damages caused by a breach of a public duty, the damage, and not the breach of duty, is that for which the plaiutiff sues ; his object being, not to vindicate a right on behalf of the public, but to recover compensation for a wrong done to himself. Between the public and the private wrong, concurring in a cause of action of the kind now alluded to, the distinction should always be carefully traced out. The mode of tracing it is illustrated by the following case, in which an action was brought against a witness for disobeying a sub- poena ; and the court observed: " That, in such an action, brought for a breach of duty, not arising out of a contract be- tween the plaintiff and the defendant, but for disobeying the order of a competent authority, the existence of actual damage or loss is essential to the action ; as the law will not imply a loss to the plaintiff from mere disobedience to the subjDoena. ' ' CouUng V. Coxe, 6 C. B. 703. In other words, the law will here discrim- inate between the breach of tlie public duty and the personal in- jury, which form the component elements of the complete right of action. In the case just mentioned, the right of action was founded upon the breach of a public duty, existing at the corn- men law, and productive of damage to the plaintiff. But a pub- lic duty may also be imposed, in part or wholly, by the statute law ; and when this is so, the precise nature and extent of the statutory duty must, of course, be determined by reference to the words of the act creating it. In Ewer v. Jones^ 6 Mod. 27, Lord Holt said : " Wherever a statute enacts any tiling, or pro- hibits any thing for the advantage of any person, that person shall have a remedy to recover the advantage given to him, or to have satisfaction for the injury done to him, contrary to law, by the same statute; for it would be a fine thing to make a law by which one has a right, but no remedy but in equity." This ex- pression is equivalent to saying that, " where a statute gives a right, then, althougli in express terms it has not given a remedy, the remedy which by law is properly applicable to that right, follows as an incident." Maule, B., Braithwaite v. Skinner^ 5 Mees. & Wels. 327. In the third place, a right of action for a tort may be founded on the infraction of some private compact, or of some private duty or obligation, and consequential damages to the complain- UF ACTIONS FOUNDED UPON TORTS. 136 aut Any duty, moreover, must in strictness be deemed "private,' wbicli is to be observed, not toward the community at large, but in relation to one or more of its members. Tke class of private duties is consequently extremely large; it comprehends duties flowing from express or implied contracts, from bailments, from ihe relation of master and servant, or of landlord and tenant,and from the occupancy of land, etc. Now, in an}' case referable tc this class, the plaintiff must, in order to sustain his action, be able to prove some kind of contract or obligation out of which the specific duty, with a breach w^hereof the defendant is charged, will flow in legal contemplation, or he must adduce evidence of facts establishing such relation between the defendant and him- self, that such specific duty will result. And further than this he must also show a breach of the duty thus raised, and conse- quential damage to himself. A private duty may exist at common law, for a breach of which, if coupled with consequential dam- age, an action w^ill be maintainable. Although a tort differs essen- tially from a contract as a foundation for an action, it not unfre- quently happens that a particular transaction admits of being regarded from two different points of view, so that, when contem- plated from one of these points, it presents all the characteristics of a good cause of action upon contract ; and when regarded from the other, it offers sufficient materials whereupon to found an action for a tort. Thus carriers w^arrant the transportatioD and delivery of goods intrusted to them; attorneys, surgeons and engineers undertake to discharge their duty wdth a reasonable amount of skill, and with integrity ; and for any neglect or un- skillf ulness by individuals belonging to one of these professions, a party who had been injured thereby may maintain an action, either in tort for the wa^ong done, or for a breach of the contract at his election. In short, wherever there is a contract and some- thing to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the plaintiff may recover either in tort or on contract, that is to say, where there is an employment, which employment itself creates a duty, an action on the case will lie for a breach of that duty, although it may consist in doing some- thing contrary to an agreement made in the course of such employment by the party upon whom the duty is ca st. Courtenay V. Earle, 10 C. B. 83; Howards. Shepherd, 9 id. 310, 321; Brown X. Boorman, 11 CI. & F. 44. Where the tort complained of thus flows from a contract, ex 136 OF ACTIONS FOUNDED UPON TORTS. press or implied, there is manifestly a direct privity between the parties. It must not, liowever, be therefore inferred that privity is, in general, necessary to support an action in tort, for many of the cases just cited show that it is not so. And for the purpose of establishing the fundamental distinction between actions of tort and contract, the following cases may be instanced : A. a stage proprietor, contracts with B to carry his servant C, and in doing so, is guilty of negligence, which causes injury to C, and consequent damage, by reason of loss of service to his master. Under these circumstances, A may be sued in an action upon contract by B, and in an action of tort by C; privity not being needed to support such latter action, which is founded upon the principle, that where a coach proprietor undertakes to convey a passenger, and does so negligently, he is amenable for the con- sequences. MarsJiall v. York, Newcastle and Berwick R. Co.. 11 C. B. 655 ; Parke, B., Longmeid v. Holliday, 6 Exch. 767 ; Nolton V. Western R. R. Co., 15 N. Y. (1 Smith) 444; S. C, 10 How. 97 ; Carroll v. Staten Island R. R. Co., 58 N. Y. (13 Sick.) 126, 134, and cases cited. In like manner, if a mason contracts to erect a bridge, or other work, on a public road, and erects it not in accordance with his contract, and so as to be a nuisance to the highway, a third per- son, who sustains an injury by reason of its defective construc- tion, may recover damages from the contractor, who will not be allowed to protect himself from liability by showing an absence of privity between himself and the injured party, or that he is also liable to another party for a breach of his contract. Parke, B., Longmeid v. Holliday, 6 Exch. 767. But see CougMry v. Glohe Woolen Co., 56 N. Y. (11 Sick.) 124. So, if an apotliecary or a phy- sican administers improper medicines to his patient, or a surgeon ■unskillfully treats him, and thereby injures his health, the apothe- cary, physician, or surgeon, will be liable to the patient, even where the father or friend of the patient may have employed such physician, etc., and was to pay him ; for, though no such contract had been made, the physician, etc., would be liable to an action for his malfeasance, if he gave improper medichips, or if the surgeon unskillfully treated his patient. Pippin v. Sheppard, 11 Price, 400 ; Oladwell v. Steggall, 5 Bing.(N. C.) 733; Judgm., 6 Exch. 767. In one case, the defendant was a pi-rson whose business it was to pr(-^pare drugs for the market ; and an action wat brought against him to recover damages for negligently putting up, labeling and selling ajar of what purported to be the extract of OF ACTIONS FOUNDED UPON" TORTS. 137 dandelion, a simple and harmless medicine, while the article actually sold was the extract of belladonna, which is a deadly poison ; and after it had passed through the hands of several dealers, a portion of the contents of the jar was sold to the plain- tiff, who took it in pursuance of the prescription of a physician, as a medicine, and was, in consequence, greatly injured ; and it was held that the defendant was liable, on the ground that his negligence put human life in imminent danger ; and that the want of privity of contract did not make any difference as to his liability. Ttiomas v. WincJiester, 6 N. Y. (2 Seld.) 397 ; Meet V. Hallenkemp, 13 B. Monr. (Ky.) 219. In relation to privity as an ingredient in an action founded upon tort, it is sometimes made a question how far it is neces- sary to allege and prove that the defendant was guilty of a fraud, as the following case will show : The plaintiJff's father purchased of the defendant a gun, warranted to have been made by a par- ticular maker, stating at the same time that the gun was required for the use of himself and his son. The plaintiff having been injured by the bursting of a gun, sued the defendant for dama- ges in an action on the case. At the trial it was proved that the gun had not, in fact, been made by the particular indi- vidual named in the warranty ; and the general verdict, with heavy damages, was found for the plaintiff. The defendant having moved in arrest of judgment, the court was called upon to decide as if the following facts had been actually found by the jury, viz., that the defendant had Jcnoiolngly sold the gun in question to the father, for the purpose of being used by the plaintiff, and had knowinglj' made a false warrant}^ that this might be safely done, in order to effect the sale ; and further, that the plaintiff, on the faith of such loarranty^ and believing it to be true^ used the gun, and thereby sustained damage. And it was contended, on behalf of the defendant, that there was no priv- ity of contract between himself and the plaintiff ; that there was no breach of any public duty, nor even a violation of any private right existing between the parties to the action. The court, how- ever, held, that the defendant, having been guilty of a deceit, was responsible for its consequences whilst the instrument sold by him was in the possession of an individual to whom his fraudu- lent statement had been communicated, and for whose use he knew it was purchased. Langridge v. Levy, 2 Mees. & Wels. 619, 531 ; S. C, 4 id. 337. It must not, however, be inferred front the preceding case, that '• whenever a duty is imposed on a Vol. L — is 138 OF ACTIOKS FOUNDED UPON TORTS. person by contract or otherwise, and that duty is violated, any one injured by it may have a remedy against the wrong-doer." Judgm., 2 Mees. & Wels. 530 ; Loop v. LitcJifield, 42 N. Y. (3 Hand) 351 ; Loseev. Clute, 51 N. Y.(6 Sick.) 494; S. C, 10 Am. Rep. 638. Such a principle, if recognized, would impose an in- definite extent of liability, and lead to the most absurd and out- rageous consequences. This jimp ortant limitation of the rule re- Bpeoting privity is exemplified in a recent case. A husband and his wife sued in tort for an injury to t'he wife^ caused, as the com- plaint alleged, by the fraudulent and deceitful warranty of a lamp sold by the defendant. The case showed that the warranty was made to the husband, and the jury negatived the existence of fraud, and the court held that the wife could not properly be joined as a co-plaintiff in the action, because the injury to her flowed from the breach of a contract which was made by the husband alone. Langmeid v. Holliday, 6 Exch. 761. The absence of fraud clearly distinguishes this case from that of Langridge v. Levy, last cited. The court observed : " There is no doubt that if the defendant had been guilty of a fraudulent representation tliat the lamp was fit and proper to be used, knowing that it was not, and intending it to be used by the plain- tiff's wife or any particular individual, the wife, or that individ- ual, would have had an action for the deceit upon the prin- ciple which all actions for deceitful representations are founded, and which was strongly illustrated in the case of Langridge V. Levy, viz., that if any one knowingly tells a falsehood, with intent to induce any other to do an act which results in his loss, he is liable to that person in an action of deceit. But the fraud being negatived in this case, the action cannot be main- tained on that ground by the party who sustained the damages." The court then proceed to remark that there are other cases, no doubt, besides those of fraud, in which a third person, though not a party to the contract in question, may sue for damage, if it be broken ; those cases occurring, however, where, as in the examples already given, ante, there has been a wrong done to that person, for which he would have had a right of action, though no such contract had been made. Coughtry v. Glohe Woolen Co., 56 N. Y. (11 Sick.) 124, 127 ; Oodley v. Hageriy, 20 Penn. St. 387. " Fraud and deceit in the defendant and damage to the plain- tiff are a sufficient foundation for the action of trespass on the case, though no benefit accrue to the defendant. The action will OF ACTIONS FOUNDED UPON TORTS. 139 lie whenever there has been the assertion of a falsehood with a fraudulent design as to a fact, when a direct and positive injury arises from such assertion."'" Welles, J., White v. Merritt^ 7 N. Y. (3 Seld.) 356, 357; Benton v. Pratt, 2 Wend. 385. It may be here observed that a distinction undeniably exists between Tnoral and legal fraud, and that there are many kinds of moral fraud which clearly could not be made available, either as a ground of action, or by way of defense before a court of law. Thus a vendor is entitled to sell for the best price he can get, and is not liable at law for a simple commendation of his own goods, however worthless they may be, provided he has not made any false statement as to their quality or condition, nor concealed an}- thing which he was legally bound to disclose, nor asserted any thing respecting them which may, in legal contemplation, amount to a warranty. The cases show a distinction between legal and moral fraud. For instance, where a person purports to accept a bill of exchange by procuration, when in fact he has no such authority, that has been held to be a legal fraud, which rendered the party so acting liable to an action of deceit, although the jury negatived the ex- istence of fraud. Murray v. Mann, 2 Exch. 538, 541; Polhill v. Walter, 3 Barn. & Ad. 114. As to the sufficiency of " legal "' fraud to support an action when, unaccom23anied by any degree of " moral " fraud, judicial opinions have conflicted. But it has been held that a principal is responsible for such representations as may be made by his agent in the transaction of his business, although such principal may be entirely ignorant of the state- ment, and innocent of any fraud ; and any contract so made may be avoided on the part of the other part}- on the ground of such fraud by the agent. Bennett v. Judson, 21 N. Y. (7 Smith) 238; Atwood V. Small, 6 CI. & Fin. 413 ; see these cases criticised, WaJceman v. Dalley, 51 N. Y"". (6 Sick.) 27; S. C, 10 Am. Rep. 551. If a party makes a material misrepresentation without any knowledge whether the statement is true or false, with a view to secure some benefit to himself, or to deceive a third person, he is, in law, as much guilty of a fraud as though he knew it to be untrue or false. lb.; Evans y. Edmonds, 13 C. B. 786 ; Taylor v Ashton, 11 Mees. & Wels. 401. But it is settled law, that inde- pendently of duty, no action will lie unless there is such a mis- representation as that just stated, or unless the party making it knows it to be untrue, and makes it with the fraudulent inten tion of inducing another person to act on the faith of it, v ao 140 OF ACTIONS. FOUNDED UPON TORTS. does so act to his injury. Thom v. Bigland, 8 Exch. 731 ; Evanh V. Collins, 5 Q. B. 820 ; Orm.rod v. Huth, 14 Mees. & Wels. 651 ; Walcem.an v. Dalley, 51 JS. Y. (6 Sick.) 27 ; S. C, 10 Am. Rep. 551; Arthur v. Griswold, 54 N. Y. (10 Sick.) 400. § 2. Novelty of actions. It has been seen that the number of common-law principles is not very great ; but tlieir nature is such that they can be applied to new cases as they arise and require an adequate and appropriate remedy. Ante, 6, 7, 8. Actions are sometimes brought in cases differing in facts from previously reported or adjudged cases ; and an objection is usually urged against them that no similar action has been brought or sustained. Such an objection has force, and it is entitled to a full and careful examination by the court. But the mere fact that the action is not founded upon some prior adjudged case or precedent is no sufficient legal answer to the action, if the facts of the case show a clear right of action when tested by sound legal principles. And the courts have fully and clearly defined and settled the proper principle of adjudication in such cases. "Another argument which has been made use of is, that this is a new case, and that there is no precedent of such an action. Where cases are new in their principle, then I admit that it is necessary to have recourse to legislative interposition in order to remedy the grievance; but where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to courts of justice to apply the principle tc any case which may arise two centuries hence as it was two cen- turies ago ; if it were not, we ought to blot out of our law books one-fourth part of the cases that are to be found in them." Pasley v. Freeman, 8 T. R. 51; 2 Smith's Lead. Gas. 92 (157), 101 (166); see, to the same effect, Chapman v. PicJiersgill, 2 Wils. 146; Ashhy v. White, 1 Ld. Raym. 938 ; S. C, 1 Smith's Lead. Gas. (342), 455 (360), 472; Winsmore v. OreenbanlcWiWe^, 511. In a late English case it is said : " I agree that our judg- ment in this case should be in favor of the plaintiffs. This case, no doubt, involves first principles. On the one hand, the law ia strongl}^ against the invention or creation of any rights of action, but, on the other hand, where a wrong has actually been suff'ered by >ne person in consequence of the conduct of another, one ia Enxious to uphold as far as possible the maxim '■uM jus ibi rtiit(',dium.''^'' Western Counties Manure Co. y. Lawes Cherrir OF ACTIONS FOUNDED UPON TORTS. U\ ical Manure Co., L. R., 9 Exch. 218, 222; S. C, 10 Eng. Rep, 391, 394 ; but see Osborn v. Gillett, L. R., 8 Exch. 88. The American cases agree with the English rule. In Yates v. Joyce, 11 Johns. 136, 110, 141, it is said : " This appears to be an action of the first impression. The books do not furnish a pre- cedent in its favor. It is obvious, however, from the statement of the plaintiff's case, in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant, which he alleges was done fraudulently, and with intent to injure him. It is the pride of the common law, that wherever it recognizes or creates private right, it also gives a remedy for a willful violation of it." Gardner v. Heartt, 3 Denio, 235. "It forms no objection to this action that the cir- cumstances of the case are novel, and that no case precisely simi- lar in all respects has previously arisen. The action is based upon very general principles, and is designed to afford relief in all cases where one man is injured by the wrongful act of another, where no other remedy is provided." Van Pelt v. McGraw, 4 N. Y. (4 Comst.) Ill, 112; Chisholin v. Gadsden, 1 Strobh. L. 220, 224 ; Adams v. Paige, 7 Pick. 542, 550 ; Raney v. Weed, 3 Sandf. 580. It has been held that a new action will not lie, where ther^ ig redress by other existing actions. Lamb v. Stone, 11 Pick. 526, 532 ; Barker v. Mathews, 1 Denio. 335 ; and see Moody v. Bur- ton, 27 Me. 427, 436 ; Costigan v. MohawJc and Hudson R. B. Co., 2 Denio, 609, 613. § 3. Of fictitious or wager suits. Courts of justice were estab- lished for the purpose of deciding really existing questions of right between parties who in good faith submit a case to the court for a decision. And the court will not try an action upon a wager or an abstract question of law, or judicial practice, not arising out of circumstances really existing, in which the parties have a legal interest. Henldn v. Guerss, 12 East, 247 ; S. C, 2 Camp. N. P. 408. " I have been very unwilling to proceed to the decision of this case at all. It appears to liie to bear strong evidence, upon the face of it, of being a mere feigned case. It is our duty to decide on the rights, but not on the speculations of parties. My confidence, however, in the respectable gentlemen who have been engaged for the parties, has induced me to aban- don my scruples, in the belief that they would never consent to impose a mere feigned case upon this court." Fletcher v. Peck, 6 Cranch, 87, 147, 148. Even at the common law, actions that are founded uj^on wagers which are foolish, or tend to annoy 142 OP ACTIONS FOUNDED UPON TORTS. others, to waste the time of the court, or to outrage decency, will be discountenanced and refused a trial. Eltliam v. Kingsman^ 1 B. & Aid. 683 ; Da Costa v. Jones, Cowp. 729. A court will not take cognizance of an action brought in the name of a fictitious person for the purpose of indirectly affecting a pending controversy ; and the bringing of such an action is a contempt of court. Smith v. Junction Railway Co., 29 Ind. 546 ; see, also, Coxe v. Phillips, Rep. Temp. Hardw. 237 ; Brewster v. Kitchin, Comb. 425. "It is the office of courts of justice to de- cide the rights of persons and of property, when the persons interested caunot adjust them by agreement between themselves, and to do this upon the full hearing of both parties. And any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, where there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court." Lordv. Yeazie, 8 How. (U. S.) 255. When an action will, or will not lie upon a wager. See Wager ; Bee, also, Godsall v. Bolder o, 9 East, 72; 2 Smith's Lead. Caa. (292), 262. § 4. Illegal or wrongful acts. Every action brought for a tort is founded upon some illegal, wrongful or fraudulent acts of the defendant. And, since there is no limit to the number and va- riety of tortious acts, no attempt will be made to explain the entire subject ; but a few cases illustrative of the general principle may be usefully given. One who does a wrongful act, or a rightful act in a negligent or wrongful manner, to the injury of another, is liable to an action, as where, by reckless and noisy driving on a highway, he frightens a horse lawfully pasturing at the side of the highway, and causes him to run away and destroy a buggy. Howe V. Young, 16 Ind. 318. So, where a person takes measures to protect his property from imminent danger of a flood, but does not use ordinary care, and consequently causes injury to the property of other persons, he is liable. Noyes v. Sliepherd^ 30 Me. 173. So, one who obstructs a sewer, in violation of a city ordinance, is liable for the consequences of his act. Owings v. Jones, 9 Md. 108. So, one who has a right of way over the land of another is liable to an action if he makes an unauthorized use of such land, even though the owner does not sustain any actual damage. Appleton v. Fullerton, 1 Gray (Mass.), 186. OF ACTIONS FOUNDED UPON TORTS. 143 One who borrows a safe which has a combination lock and key, and returns it with the key, but locked upon a com- bination known only to himself, and he refuses, upon demand, to furnish the owner with the combination upon which it was locked, is liable to an action if the safe is thus rendered worthless to the owner. Neff v. Webster, 15 Wis. 283. A person who, in the exercise of a legal right, does an injury to the property of another, is not liable for the damage unless it was caused by his want of the ordinary care and skill exercised in like cases. Thomasson v. Agnew, 24 Miss. 93. The prevention of the doing of an unlawful and unauthorized act does not, of itself, constitute a good cause of action on the part of the would- be and incipient wrong-doer. Bangor, etc., R. H. Co. v. Smitli, 49 Isie. 9, 13. There is no principle known to the law, which will enable a person, individual or corporation, to claim immunity for his wrongful acts done to the injury of another's rights, on the ground that his acts were for the public interest. Henderson V. Railroad Co., 17 Texas, 560; Trenton, etc., Co. v. Raff, 36 N. J. L. 335. An action on the case lies for maliciously suing out an attr'^li- ment and seizing the goods of the debtor, even though there was at thf» time some indebtedness, where the indebtedness claimed greatly exceeds the amount due, and where the levy is grossly excessive, and the object is extortion and oppression. Spaid9 V. Barrett. 57 111. 289; S. C, 11 Am. Rep. 10. So, bringing an action in the name of another person without his authority is an unlawful act, and subjects the wrong-doer to an action. Foster V. Dow, 29 Me. 442 ; and see Cotterell v. Jones, 11 C. B. 713. But the person in whose name such suit is brought may adopt it. Craig v. Twomey, 14 Gray, 486. § 5. Rightful acts no ground of action. A rightful and bona fide exercise of a lawful power does not furnish any basis for an action. McMillen v. Staples, 37 Iowa, 532. An act done un- der lawful authority, if done in a proper manner, can never sub- ject the party to an action, whatever consequences may follow; nor will a man be answerable for the consequences of enjoying his own propert}^ in the way in which such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part. Radcliff^ s Exrs. v. May or ^ etc.. of BrooTdyn, 4 N. Y. (4 Comst.) 195, 200; RocJcwood v. Yel son, 11 Gush. (Mass.) 221. A person who places a steam-boiler upon his premises aud 144 OF ACTIONS FOUNDED UPON TORTS. operates it with care and skill, so that it is not a nuisance, is not, in the absence of proof of negligence or fault on his part, liable for damages to his neighbor caused by the explosion of the boiler. Losee v. Buchanan, 51 N. Y. (6 Sick.) 476. A man may lawfully dig on his own land, although he cannot lawfully do so in such a manner as to cause the land adjoining to fall in the pit dug by him. Farrand v. Marshall, 21 Barb. 409; Austin v. Hudson R. R. Co., 25 N. T. (11 Smith) 334, 346 ; Ryckman v. Gillis, 6 Lans. 79; People ex rel. Barlow v. Canal Board, 2 N. Y. S. C. R. (T. & C.) 275. The owner of one side of a party wall, between two adjoining houses, may, if the wall becomes dilapidated and unsafe, upon reasonable notice to the tenant of the opposite building, take down and rebuild such wall in a proper manner. Partridge v. Gilbert, 15 N. Y. (1 Smith) 601, 612. So he may increase the hight of the wall, if that can be done without detriment to the wall or to the property of the adjacent owner. Brooks v. Curtis, m N. Y. (5 Sick.) 639 ; S. C, 10 Am. Rep. 545. Or he may un- derpin the foundation, sink it deeper, and increase, within the limits of his own lot, the thickness, length, or hight of the party wall, if he can do so without injury to the building on the ad- joiaing lot. Eno v. Del Yecchio, 4 Duer, 63 ; see Daly v. Grimly, 49 How. 520. The owner of a building, erected on the line of his lot, cannot, by lapse of time, acquire a prescriptive right to the lateral support of the adjacent soil. Mitchell v. Mayor, etc., of Rome, 49 Ga. 19 ; S. C, 15 Am. Rep. 669. The owner of land may lawfully set fire to his fallow ground, and if he is not guilty of negligence in the mode of doing it, no action lies for any injury done to his neighbor's woodland, crops, or buildings, by fire. Clark v. Foot, 8 Johns. 421 ; Stewart v. Hawley, 22 Barb. 619 ; Calkins v. Barger, 44 id. 424. A landowner may open and work a coal mine in his own land, though it may injure the house which an adjoining owner has built on the line of his land. Partridge v. Scott, 3 Mees. & Wels. 220. He may do the same thing, even though it cuts off an under- ground stream of water, which before supplied his neighbor's well. Acton v. Blundell, 12 Mees. & Wels. 324 ; Ellis v . Dun- can, 21 Barb. 280 ; 11 How. 515 ; 50 Barb. 325. He may lawfully dig a well upon his own premises, although it intercepts the percolation or underground currents of water, and thus prevents the water from reaching the springs or open running stream on OF ACTIONS FOUNDED UPON TORTS. 145 the land of anotlier person. Village of Delhi v. Toumans, 45 N. Y. (6 Hand) 362 ; S. C. 6 Am. Eep. 100 ; Bliss v. Greeley, 45 N. Y. (6 Hand) 671 ; S. C, 6 Am. Rep. 157. He may build upon his land, although it obstructs or shuts out the light from his neighbor's house. See Ancient Lights, and Parker v. Foote, 19 Wend. 309 ; MaJian v. Brown, 13 id. 261. § 6. Legislative authority for acts done. Asa general rule, no action lies for an act done by virtue of a statute authority, if the statute is strictly pursued, and there is no negligence, or want ^ of due care and skill in performing the act. Vauglian v. Taff Vale Railway Co., 5 H. & N. 679 ; 3 id. 752, note ; Chapr}ian v. Atlantic & St. Lawrence R. R. Co., 37 Me. 92 ; Burroughs v. Housatonic R. R. Co., 15 Conn. 131, 133; Rood v. New YorTi & Erie R. R. Co., 18 Barb. 80; Herring v. Wilmington & Raleigh R. R., 10 Ired. 402 ; First Baptist Church v. TJtica & Schenec- tady R. R. Co., 6 Barb. 313, 318 ; Sunhury & Erie R. R. Co. v. Hummell, 27 Penn. St. 99 ; Morris, etc., R. R. Co. v. Newark, 10 N. J. Eq. (2 Stockt.) 352. But if the statutory powers are exceeded, or are not strictly pursued, or the acts authorized to be done are carelessly and negligently done, an action lies to recover the damages resulting. Brownlow v. Metropolitan Board of Works, 13 C. B. (N. S.) 768; 16 id. 546; Freemantlev. London & North-western Railway Co., 10 C. B. (N. S.) 89 ; Fero v. Buffalo & State Line R. R. Co., 22 N. Y. (8 Smith) 209 ; Huyett v. Philadelphia & Reading R. R. Co., 23 Penn. St. 373. The appropriation of land for a canal, by the authorized agents of the State, confers a right to enter upon and use the soil, although the absolute fee does not vest in the State till the ap- praisement of damages. Baker v. Johnson, 2 Hill, 342; Rex ford V. Knight, 11 N. Y. (1 Kern.) 308. But the authority conferred upon the canal commissioners to enter upon and take possession of lands of an individual for the construction of, or for the temporary use of, the canals, cannot be delegated unless there be special power of substitution. St. Peter v. Denison, 58 N. Y. (13 Sick.) 416 ; Lyon v. Jerome, 26 Wend. 485. And a contractor cannot justify a trespass upon private lands because such act was necessary in the performance of his contract, lb. Casting stones and earth upon the lands of an adjoining land proprietor, by means of a blast from the bed Vol. I.— 19 146 OF ACTIONS FOUNDED UPON TOETS. of the canal, by a contractor wifh the State, is a trespass, even though the work was done without negligence. lb. The acts and things authorized by statute to be done are numerous and varied, and no attempt will be here made to enumerate them, as many of them will be noticed in various paita of this work. § 7. Consent of injured party. It is a general rule of law that no person can maintain an action for a wrong where he has con- sented to the act which occasions his loss. Broom's Leg. Max. 268; Illinois Central R. B. Co. v. Allen, 39 111. 205; Walker v. FiUs, 24: Pick. 191; FJiilUps v. Woosler, 36 N. Y. (9 Tiff.) 412; 3 Abb. (N. S.) 475; 2 Trans. App.254; State v.Bec/c, 1 Hill (S. C), 363; PilloiD v. BusJmell, 5 Barb. 156. § 8. Demand or notice before suit brought. In actions for torts there are many cases in which no notice or demand is requisite before bringing the action. Again, there are numerous instances in which a demand is necessary for the purpose of completing the right of action. In replevin, and in trover, a demand is necessary in some cases, and unnecessary in others. See Re- plevin ; Trover; Nuisance ; Ejectment; Injunctions In the differ- ent titles the cases in which a demand is required before suit brought will be sufficiently noticed. § 9. Splitting demands. The objection to splitting demands, and bringing separate actions upon the several parts, is usually made in relation to actions founded upon contracts. See Split- ting Cause of Action. Where there has been a trespass in taking personal property, or an unlawful conversion of it, by one single indivisible act in relation to the several articles taken or converted, there is but a single cause of action, and the plaintiff cannot split his claim for damages, by bringing separate actions of trespass or trover for each particular ai-ticle seized or converted; and, therefore, a re- covery for one part or parcel of the goods is a bar to an action for another part or parcel. Farrington v. Payne, 15 Johns. 432 ; Herriter v. Porter, 23 Cal. 385 ; Brannenhurg v. India- napolis, etc., H. R. Co., 13 Ind. 103; Bates v. Quattlebom, 2 Nott & McCord (S. C), 205. § 10. Of damages not caused by wrongs not actionable. To constitute a tort, two things must concur, actual or legal dam- age to the plaintiff, and a wrongful act by the defendant. But it is not every substantial wrong, still less ever}'- imaginary griev- ance, which affords a right of action for redress. Nor is it true, OF ACTIONS FOUNDED UPON TL KTS. 147 that for every kind of damage or loss occasioned by the Act of an- other, a remedy is given by the hiw. It not nnfrequently happens, that damage, palpable and undeniable though it be, is, in tech- nical phraseology, damnum sine injuria, that is, damage, unac- companied by any tortious or wrongful act whereof cognizance can be taken in a court of justice. Broom's Com. on Com. Law, 75. The word injuria is employed as signifying a " legal wrong," that is, a wrong cognizable or recognized as such by the law The word damnum is used as signifying ''damage," not neces- sarily pecuniary, or perceptible, but appreciable, and capable, in legal contemplation, of being estimated by a jury. The propo- sition, damnum sine injuria, is, that damage, unaccompanied by legal wrong, is not actionable at law. A person may sustain serious damage by the acts of another, and yet, if it be the result of inevitable accident, or of a lawful act, done in a lawful manner, without any carelessness or negli- gence, there is no legal injury, and no tort giving rise to an action for damages, ante. One who is acting in self-defense, and in good faith, in protecting himself from the wrongful acts of another, will not be liable to a third person, who is injured by such acts of self-defense. Richer v. Freeman, 50 N. H. 420; S. C, 9 Am. Rep. 267; Scott v. Shepherd, 2 W. Bla. 892; S. C, 3 Wils. 403; 1 Smith's Lead. Cas. (549), 754. See Yandenburgh V. Truax, 4 Denio, 464. For a further illustration of the acts one may do without liability to an action, see ante, § 5. Judges of the superior courts of record are not liable to an- swer personally for acts done by them in a judicial capacity, or for errors of judgment. Yates y. Lansing, 5 Johns. 282; 9 id. 395; Cunningham y. BucT£lin,SQovf.llS; and the English courts hold that at common law no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly. Fray v. BlacTiburn, 3 B. & S. 576; Thomas v. Cliurton, 2 id. 475. In this country the same rule prevails in all of the States. Randall v. Brigham, 7 Wall. 523; Howe v. Mason, 14 Iowa, 510; Downing v. Herriclc, 47 Me. 462; Rohbins v. Gorham, 25 N.Y. (11 Smith) 538; 26 Barb. 586; BurnJiam v. Stevens, 33 N. H. 247; Ambler v. Church, 1 Root. 211; Pratt v. Gardner, 2 Cush. (Mass.) 63. §11. Of wrong without actual damage, though actionable. The proposition injuria sine damno frequently suffices as the founda- 148 OF ACTIONS FOUNDED UPON TORTS. tion at an action ; the phrase being used to indicate a wrong — remediable at law — though not productive of actua' damage to the complainant. The phrase applies only where a legal injury has been done, or where a legal right has been violated. To illus - trate this principle, it is well settled that a judge or inspector of elections who wrongfully and maliciously refuses to receive the vote of an elector is actionable. Asliby v. Whlte^ 2 Ld. Raym. 935 ; S. C, 1 Smith's Lead. Cas. (342), 455 ; Jenhins v. Waldron, 11 Johns. 114; Blancliard v. Stearns, 5 Mete. (Mass.) 298; Wheeler v. Patterson, 1 N. H. 88 ; Swift v. Chamberlain, 5 Conn. 537 ; Carter v. Harrison, 5 Blackf. 138 ; State v. Porter, 4 Harr. (Del.) 536 ; Pail v. Potts, 8 Humph. 225. A contin- uing tortious act which injuriously affects the property of another, is actionable, even though no appreciable damage results from it, ante, 40. One who stops on the sidewalk of a street, in front of a man' s house, and remains there, using toward the owner insulting and abusive language, is liable to an action. Adams v. Pivers, 11 Barb. 390, 398. Bringing an action in the name of another person, without his consent, is actionable, anie^ 143, § 4. An action lies against a banker, who has sufficient funds in his hands belonging to a customer, but who refuses to cash the check of the latter, even though he did not sustain any actual loss or damage. Marzetti v. Williams, 1 B. & Ad. 415 ; Cum- TTving V. Shand, 5 H. & N. 95 ; Gray v. Johnston, L. R., 8 H. L. 1 ; Palin V, Steward, 14 C. B. 595. Trespass lies for an entry upon the land of another, though no real damage be occasioned thereby, for repeated acts of going over the land might event- ually be relied upon as evidence of title to do so. Tmyman v. Knowles, 13 C. B. 222. An action lies for an unlawful diver- sion of the water from the plaintiff's mill, even though no actual damage be shown, as such use might in time ripen into a right, Blanchard v. Baker, 8 Greenl. (Me.) 253; Rochdale Canal Co. v. King, 14 Q. B. 122, 1,36 ; Webb v. Portland Manuf acting ing Co., 3 Sumner, 189 ; ^¥ilts and Berks Canal Navigation Co. v. Swin- don Waterworks Co., L. R., 9 Ch. App. 451 ; 43 L. J. Chanc. 393 ; 30 L. T. (N. S.) 443; 22 W. R. 444. So of a nuisance in obstructing the works of a canal company. Delaware and Hudson Canal Co. v. Torrey, 33 Penn. St. 143, or for cutting and taking away the grass which grows on the side of a highway laid out over the plaintiff's land. Cole v. Drew, 44 Vt. 49 ; S. C, 8. Am. Rep. 363 § 12. Damages when too remote, and when not. There are cases in which injuries have been done that were prOviuctive ot I OF ACTIONS FOUNDED UPON TORTS. 149 damage to another, which, in legal contemplation, were too re- mote to enable the injured party to redress. Thus in an action for slander, where special damages are necessary to sustain the action, it is not sufficient to prove a mere wrongful act of a third person, induced by the slanderer, such as that he dismissed the plaintiff from iiis employ before the end of the term for which they had contracted. Vicars v. Wilcoclcs, 8 East, 1 ; S. C, 2 Smith's Lead. Cas. (460), 484, where numerous cases are cited. See Sneesby v. Lancashire^ etc.. Railway Co.^ L. R., 9 Q. B. 263 ; S. C, 8 Eng. R. 337, in which the damages were held not to be too remote in an action for negligence ; see, also, Kelly v. Parting- ton, 5 B. & Ad. 645. A hu'sband cannot maintain an action for damages resulting from the illness and mental depression of his wife arising from the speaking of her certain defamatory words, not actionable in themselves. Wilson v. Goit. 17 N. Y. (3 Smith) 442. See Bassell v. Elmore, 48 N. Y. (3 Sick.) 561. The special damage necessary to support an action for defam- atory words, not actionable in themselves, must result from an injury to the plaintiff's reputation, which affects the conduct of others toward him ; his mental distress, physical illness and inability to labor, occasioned by the slander, are not such natural and legal consequences of the words spoken, as to give an action. Terwilliger v. Wands, 17 N. Y. (3 Smith) 54. A general allegation in a complaint that the slanderous charge injured the plaintiff in her good name, and caused her relations and friends to slight and shun her, does not set forth sufficient special damage. Bassell v. Elmore, 48 N. Y"". (3 Sick.) 561. An action does not lie in favor of the manager of a theater against one who publishes a libel on an opera singer, who had been engaged to sing, but was deterred from doing so by reason of the publication of the libel, and for fear that the libel would induce third persons to assault her. Ashley v. Harrison, 1 Esp. 49 ; Peake, 194. So no action can be msrtntained by a parent against a town school teacher for refusing to instruct f he children of the former. Spear v. Cummings, 23 Pick. 224, nor for admit- ting colored children as scholars. Stewart v. Southard, 17 Ohio. 402. One who has agreed to support certain paupers, in sickness or in health, for a specified time, for a fixed sum, cannot maintain an action against a third person for assaulting and beating ona of the paupers, and thus causing extra expense for his cure and support. Anthony v. Slaid, 11 Mete. (Mass.) 290. 150 PRINCIPLES RELATING TO SUITS IN EQUITY. No action lies by a creditor against a third person who induces a debtor not to pa^^, and an officer not to collect, a demand which was placed in his hands for that purpose {Piatt v. Potts, 13 Ired. 455) ; nor can a creditor maintain an action against a third per- son, for aiding the debtor of the former to remove with his prop- erty out of the State. Matthews v. Pass, 19 Ga. 141. The com- missioner's court of a county cannot maintain an action against the keeper of a poor-house for debauching and getting with child one of the inmates. Commissioners, etc., v. McCann, 23 Ala. 699. An action does not lie against a witness for testifying falsely in a cause. Or one v. Brandenburg, 7 Blackf. 234 ; Dun- lap V. Glidden, 31 Me. 435 ; Damport v. Sympson, Cro. Eliz. 520. A man who mounts a pile of flag-stones in a street, for the pur- pose of making a speech, and thus attracts a crowd of persons, some of whom also get upon the stones and break them, is not liable, as a necessary legal conclusion, for the damages ; but the question whether his act was the proximate or the remote cause of the injury is for the jury. Fairbanks v. Kerr, 70 Penn. St. 86 ; S. C, 10 Am. Rep. 664. TITLE III. OF PEI>TCIPLES RELATING TO SUITS IN EQUITY. ARTICLE I. RULES AXD ILLUSTRATIOJSrS. Section 1. Courts of equity do not act when a legal remedy exists. Some of the rules applicable to courts of equity have already been pointed out, ante, 20. But there are some general principles that may properly be more fully noticed in this place. In those countries or States in which the rules of law, and the principles of equity are administered by distinct and separate courts, it is a well-settled general rale, that courts of equity have jurisdiction in cases of rights which are recognized and protected by the municipal jurisprudence, and where a plain, adequate and complete remedy cannot be had in the courts of common !aw. The remedy must be plain; for, if it be doubtful and ob- scure at law, equity will assert a jurisdiction. It must be ade- quate ; for, if at law, it falls short of what the party is entitled to, that founds a jurisdiction in equity. It must be complete ; PRINCIPLES RELATING TO SUITS IN EQUITY. 15 1 ^that is, it must attain the full end and justice of the case. It must reac/i the whole mischief, and secure the whole right of the party in a perfect manner, at the present time, and in future ; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdic- tion of a court of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law ; it is sometimes exclusive :f it ; and it is sometimes auxiliary to it. The inadequacy of legal remedies has frequently been the rea- son assigned for equitable jurisdiction and interference. And, on the other hand, the sufficiency of remedies at law have fur- nished grounds to courts of equity in declining to exercise any jurisdiction in the particular matter or case. The remedy at law must \)Q plain, to oust courts of equity of jurisdiction, or to cause them to decline acting in the matter. The existence of a merely problematical remedy at law does not deprive a party of his remedy in equity. Edsell v. Briggs, 20 Mich. 429. It is no bar to proceedings in equity that the plaintiff may, by great circuity and at great inconvenience, at last secure a remedy at law ; his remedy must be plain and adequate. Carlton v. Felder, 6 Rich. Eq. (S. C.) 58, 67. A court of equity will intervene in the administration of an estate where the bill shows an irrepar- able iuj ury to be impending, against which the probate court is powerless to grant relief, as where an administrator withholds proceeds, has been adjudged a bankrupt, and owes debts of a fiduciary character. Haag v. SparJcsi, 27 Ark. 594. A remedy in a court of law is the only " remedy at law" which is suffici- ent to oust a court of equity of its jurisdiction ; and, when stock in a corporation is transferred, without consideration, for the fraudulent purpose of controlling an election, an injunction is the proper remedy to prevent the transferees from voting. Webh V. Ridgely, 38 Md. 364. A bill which shows that the defendant has wrongfully remo\^ed a monument which the complainant had erected to the memory of deceased persons, will be retained ; for, since the property in question is of a peculiar character for which a full compensation in damages could not be obtained in a court of law, a court of equity has jurisdiction to enjoin any further interference with the monument, if not to compel ita restoration. McCollum v. Morrison, 14 Fla. 414. Again, a court of equity will not be ousted of jurisdiction unless the remedy at law is adequate. To render a bill in equity demurrable on the ground that the complainant has a remedy at 152 PRINCIPLES RELATING TO SUITS IN EQUITY. law, that remedy must appear to be adequate and completa 8cott V. Scoit, 33 Ga. 102 ; Witter v. Arnett, 8 Ark. (3 Eng.) 57. Alfhough a remedy at law may exist, yet if a complaint is one of equitable jurisdiction, chancery will sometimes take cogni- zance of it, where its aid is more effectual. Morris v. Thomas^ 17 111. 112 ; Babcock v. McCammit, 53 id. 214 ; Rutherford v. Jones, 14 Ga. 521 ; Jordan v. Faircloth, 27 id. 372 ; Clouston v. Shearer, 99 Mass. 209. A bill in equity will not lie for the recovery of money held in trust, when the plaintiff has a plain, adequate and complete remedy by an action at law for money had and received. CrooJcer V. Rogers, 58 Me. 339. A bill in equity will be dismissed if the record shows that the complainant has a complete and adequate remedy at law. Seago v. Harrison, 42 Ga. 189 ; Miller v. Neiman, 27 Ark. 233. A court of equity will not grant relief by injunction or new trial, if the party seeking relief has an adequate remedy by motion to the court in which the judgment was obtained. Lyme v. Allen, 51 N. H. 242 ; Day v. Cummings, 19 Vt. 496 ; Musgro-oe v. Chambers, 12 Tex. 32. A court of equity will not interfere in a case where the aggrieved party has a remedy by appeal. Hazelhurst v. Mayor, etc., of Baltimore, 37 Md. 199. An objection that the complain- ant has an adequate remedy at law ought to be made promptly, or it may be disregarded. Sexton v. Pike, 13 Ark. 193 ; Gum- ming V. Mayor, etc., of Brooklyn, 11 Paige, 596 ; Jennings v. Whittemore, 2 N. Y. S. C. (T. & C.) 377, 379. If such a defense is not set up in the answer, it will not be available at the hear- ing. Truscott V. King, 6 N. Y. (2 Seld.) 147. § 2. Equity follows the law. It is a common maxim, that equity follows the law ; and, it is susceptible of several inter- pretations. One of these may be, that equity adopts and fol- lows the rules of law in all those cases in which such rules are, in terms, applicable. Another may be, that equity, in dealing with cases of an equitable nature, adopts and follows the anal- ogies furnished by the rules of law. The maxim is true in both of these senses when properly applied to different cases and different circumstances ; but, it is not universally true in either sense ; or, in other words, it is not a rule of universal applica- tion. If there is a jjlain, direct, positive rule of common law, or an express statute, which governs the case with all its circum- stances, or some particular point, a court of equity is as much PRINCIPLES RELATING TO SUITS IN EQUITY. 153 bound by it as a court of law, ante^ § 7. In the construction of written instruments tlie same general rules govern at law or in equity, ante^ 116, art, 8, § 4. Courts of equity discountenance neglect or laches ; and, the statute of limitations will be enforced by them as readily as by courts of law. Kane v. Bloodgood, 7 Johns. Ch. 90 ; S. C, 8 Cow. 360; Clarli v. Ford, 1 Abb. Ct. App. 359; 3 xVbb. (N. S.) 245 ; 34 How. 478; 3 Keyes, 370; 1 Trans. App.22 ; Chapmait v. Butler, 22 Me. 191; Phillips v. Rogers, 12 Mete. (Mass.) 405 ; Wagner v. Baird, 7 How. (U. S.) 234 ; Max- well V. Kennedy, 8 id. 210 ; Bowman v. Warhen, 1 id. 189. And, in some cases, courts of equity will refuse to interfere or act after a considerable lapse of time, from considerations of pub- lic policy, and from the difficulty of doing entire justice between the parties, even though the claim may not be barred by the statute of limitations. lb. Runt v. Ellison, 32 Ala. 173 ; Wil- son V. AntTiony, 19 Ark. 16 ; Kerby \. Jacobs, 13 B. Monr. 435; Britton V. Lewis, 8 Rich. Eq. (S. C.) 271. § 3. Where both parties are equally in the wrong, the court will not interfere. Courts of equity require honesty, good faith, and legality in transactions between men ; and, he who seeks the aid of a court of equity should, himself, come into court with clean hands. In this court, as in courts of law, if both parties are equally in the wrong, the condition of the defendant is the most secure. Where a party seeks to be re- lieved from the fulfillment of a contract, intentionally made in fraud of the law, and both parties m pari delicto, the court will not interfere. It will not aid a judgment debtor to escape from the payment of a judgment upon the ground that the contract on which the action at law was founded was prohibited by a statute, and both parties were in pari delicto. Creath'' s Admr. v. Sims, 5 How. (U. S.) 192, 204 ; Carey v. Smith, 11 Ga. 539 ; Mc- Donald V. Campbell, 3 Pittsb. (Pa.) 554. It is the policy of the law to withhold all aid or relief from parties in controversies between themselves, if they are in pari delicto, and when such aid could or might tend to the consum- mation of an agreement entered into in fraud of the law, or the rights of other persons, unless such interference would promote public policy. Freeman v. Sedgwick, 6 Gill. (Md.) 28. Where both parties have been engaged in an illegal transaction, the court will not lend its active aid to the one party to get rid of the securities taken upon the illegal transactions, nor will it aid the other party in retaining them ; but will leave both to theii Vol. L — 20 154 PRINCIPLES RELATING TO SUITS IN EQUITY. strict technical rights. Harrington v. Bigelow^ 11 Paige, 349, 350 ; Atwood v. Flslh^ 101 Mass. 363. A court of equity will not entertain a suit which is founded upon a contract or transaction involving a violation of the laws of another State within its lim- its Paine v. France^ 26 Md. 46. Or a bill which seeks to can- cel an obligation the consideration of which is a violation of chastity, compounding a felony, false-swearing, or other breach of good morals. Weakly v. WatMns, 7 Humph. 356. Or a bill to hold an agent responsible for the value of a bond placed in his hands for collection, which, at that time, was known by both parties to have been stolen, although the principal may have originally received it in good faith. Kirlc v. Morrow, 6 Heisk. (Tenn.) 445. There can be no right in equity which grows out of a transaction that is illegal and void. Mattox v. Hightstrue, 39 Ind. 95. § 4. Where the equities are equal, the law prevails. It is a maxim in equity, that where the equities of the parties are equal, the law must prevail. Where the defendant has an equal claim to the protection of a court of equity for his title, as that accorded by the court to the plaintiff for the assertion of his title, the court will not interfere on either side. If one of two inno- cent parties must suffer, it must be that one who trusted most, or whose misplaced confidence caused or permitted the wrong to be done. Ruiz v. Norton, 4 Cal. 355; Coles v. Anderson, 8 Humph. 489 ; Kesler v. Zlmmerchitte, 1 Tex. 50. Equity will not interfere to set up a prior unsealed mortgage against a judg- ment creditor. Pratt v. Clemens, 4 W. Ya. 443. Parties who are clothed witn a legal title to an estate will be regarded as its owners, until such title is removed or destroyed by a superior equity. Lenox v. Notrebe, 1 Hempst. 475 ; Griffin V. Carter, 5 Ired. Eq. 413 ; Hunt v. Turner. 9 Tex. 385. A court of equity will not take money from one party and pay it over to others who have no better or more meritorious claim to it than he has. Claire v. Bailey, 6 Bush (Ky.), 77, 81. A court of equity will not interfere, either for relief or for discovery, against a bona fide purchaser of the legal estate for a valuable consideration, without notice of the adverse title, if he avails himself of the defense at the proper time and in the proper man- ner. And it will extend its protection equally, if the purchase is originally of an equitable title without notice, and afterward with notice, the party obtains or buys in a prior legal title, foi tlie purpose of supporting his equitable title. Newton v. Mc^ PRmCIPLES RELATING TO SUITS IN EQUITY. 155 Lean^ 41 Barb. 285 ; Rexford v. Rexford^ 7 Lans. 6 ; Beal v. Miller, 1 Hun, 390 ; S. C, 3 N. Y. S. C. (T. & C.) 564 ; Qrosvenor V. Allen, 9 Paige, 74; Russell v. Fefrie, 10 B. Monr. 184, 186, But a court of equity is not bound at all times to enforce a strict legal right, but will protect the equitable title when good con- science requires it. Lewis v. Lyons, 13 111. 117. And it will not impart force to a defective title,»when, by doing so, other per- sons having a j)i"ior equity in the land would be injuriously affected. Lucas v. Barrett, 1 Greene (Iowa), 610. If the pro- tection of the court cannot be granted to one having a right thereto, without affecting innocent parties, it will be refused. Johnson v. HubUll, 10 N. J. Eq. 382. § 5. Prior iu tiiue, prior in right. As between mere equitable claims, he who is first in time is superior in right. Cherry v. Monro, 2 Barb. Ch. 618; Vanmeterv. McFaddin, 8 B. Monr. 435, 441. Where the legal estate is outstanding, equitable rights or incumbrances must be upheld or discharged, according to their priority in time. Wails v. Cooper, 24 Miss. 208. If the equities are unequal, the preference is given to the superior equity. Jeremy's Eq. Jur. 285, 286. If one who is equal in equity, and is also strongest in law, takes a dishonest step to strengthen hia title, he will lose his advantage. Ellis v. Durham, 2 Jones' Eq. \S. C.) 465. In equity, as well as at law, the maxim is, " Vigil- antibus, non dormientihus, jura subveniunt,^^ the laws assist 'hose who are vigilant, not those who sleep over their rights. Slemmefs Ajpjjeal^ 58 Penn. St. 168, 177; and see Broom's Leg. Max. 892. § 6. Equality is equity. The general maxim is, that equal- ity is equity; or as it is sometimes expressed, equity delighteth in equality. Petit v. Smith, 1 P. Wms. 9. Equality, among creditors having a common right to payment out of a fund pro- vided for the benefit of all, is a settled principle of equity. Shepherd v. Guernsey, 9 Paige, 357, 361. The cases, in which this maxim is most frequently applied in equity, are, in cases of contribution between co-contractors, sureties, and others; to cases of abatement of legacies, wher« there is a deficiency of assets; to cases of apportionment of mon- eys due on incumbrances among different purchasers and claim- ants of different parcels of land; and especially to the marshal- ling and distribution of equitable assets. 1 Story's Eq. Jur., § 64,/. § 7. He who seeks equity must do equity. The following prin- ciples of equity jurisprudence are said to be without exception; 166 PRINCIPLES RELATING TO SUITS IN EQUITY. that whosoever would seek admission into a court of equity musi come with clean hands; tliat such a court will never interfere in opposition to conscience or good faith ; and. that it will never be called into activity to remedy the consequence of laches or neg- lect, or the want of reasonable diligence. Daniel, J., in CreatJCs Admr. v. Sims^ 5 How. (U. S.) 204 ; TJiomas v. Bartow, 48 N. Y. (3 Sick.) 193. If a borrojver of money at a usurious rate of interest seeks the aid of a court of equity for the purpose of canceling the instrument, or for having it delivered up, the court will not interfere in his favor except upon the terms that he pay to the lender such amount as is really, and in good faith due to him. Sporrer v. Eljler, 1 Heisk. (Tenn.) 633; Livingston v. Harris, 3 Paige, 528, 537; Fanning v. Dunham, 5 Johns. Ch. 122. In an action by the grantee to reform a deed of trust given to secure the payment of a note, where the defense of usury is set up and proved, the plaintiff must produce his note and have it reformed so as to rebate the usurious part of it, or no relief will be granted to him. Corby v. Bea7i, 44 Mo. 379, 382. See 1 Story's Eq. Jur., § 64, e. The rule, that he who seeks equity must do equity, does not apply unless the mutual equities arise out of the subject-matter of the suit, and are capable of enforcement. Finch v. Finc/i, 16 Ohio St. 501. But, the rule will be applied where an adverse equity grows out of the controversy before the court, or out of circumstances which the record shows to be a part of its history, or where it is so connected with the cause as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated, to explain or refute the charges. Coin- stock V. Johnson, 46 N. Y. (1 Sick.) 615. § 8. Equity regards as done, what ought to have heeu done. The rule that equity looks upon that as done, which ought to have been done, means that equity will treat the subject-matter, as to colla- teral consequences, and incidents, in the same manner as though the final acts contemplated by the parties had been executed pre- cisely as they ought to have been; not as the parties might have executed them. Atwood v. Vincent, 17 Conn. 575 ; Hashrook v. Paddock, 1 Barb. 635; Burch v. Neioberry, id. 648; 10 N. Y. (6 held.) 374 . Though the rule that what ought to have been done will be considered as done between certain parties, the rule will not be extended so as to affect the rights of third parties, as be- tween themselves, when they had contracted in reference to what had been actually done; and especially where the one claiming PRINCIPLES OF DEFENSES AT LAW, ETC. Kn the benefit of it was a party to that contract, assented to its terms and received its benefits. Vose v. Cowdrey, 49 N. Y. (4 Sick.) 336. Where real estate is ordered to be sold, it becomes personalty, and will go accordingly. FletcTier v. AsJtbicrner, 1 Bro.- C C. 497; 1 Lead. Cas. Eq. 534, and notes. § 9. Union of law and equity. In many of the States codes have been adopted which abrogate the distinction between law and equity. See ante, 29. The abrogation of the forms of procedure does not destroy the distinction between legal and equitable rights. Matthews v. Mc- PTierson, Qo N. C. 189; TroostY. Davis, 31 Ind. 34; ante, 30. TITLE IV. OP SOME OF THE GENERAL PRINCIPLES RELATING TO THE DEFENSE OF ACTIONS AT LAW, OR OF SUITS IN EQUITY. ARTICLE I. RULES AND ILLUSTRATIONS. Section 1. Of defenses in general. When an action or suit has been brought against a party, he must elect whether he will allow a judgment or decree to be taken against him by default, or whether he will make a defense. In considering this matter the first question will be, is there any available defense that can be interposed. In some cases there will be a good defense upon the merits. In other cases there may not be any defense upon the merits, and yet be a sutficient ground for defeating the action because it is brought before the proper time, or is not brought and prosecuted in the proper mode. Asa general rule, the matter constituting a defense must ex- ist and be available at the time the action is brought. Rundle V. Little, 6 Q. B. 174 ; Lee v. Lem/, 4 B. & C. 399 ; 6 D. & R. 475; Bartlett v. Holmes, 13 C. B. 630. As to novelty as an objection to an action or defense, see ante, 140, art. 1, § 2. No person is allowed to defend an action upon a question wiiich does not concern him, and in which he has no lawful inter- est. Flint V. Craig, 59 Barb. 319, 331, 332 : Campbell v. Frie Railioay Co., 46 id. 540 ; City Bank of Nev: Haven v. PerJdns, 158 PRINCIPLES OF DEFENSES AT LAW, ETC. 29 N. Y. (2 Tiff.) 554. As an illustration of this rule, infancy is a personal defense, which no person can interpose except the infant himself. Jones v. Butler, 30 Barb. 641 ; 20 How. 189 ; Hartness v. Thompson, 5 Johns. 160 ; Slocum v. HooJcer, 13 Barb. 536. So the defense of usury can be set up only by the princi- pal debtor, or by his sureties, heirs, devisees, or personal represen- tatives. Billington v. Wagoner, 33 N. Y. (6 Tiff.) 31 ; Ohio & Miss. B. R. Co. V. Kasson, 37 N. Y. (10 Tiff.) 218 ; 4 Trans. App. 184 ; Lehman v. Marshall, 47 Ala. 362 ; Hough v. Horsey, 36 Md. 181 ; S. C, 11 Am. Rep. 484 ; Carmichael v. Bodfish, 32 Iowa, 418. A defense consisting of matter of fact is set up in the plea or answer. If the defense consists of matter of law it is interposed by demurrer to the declaration or complaint. Pleas or answers are generally divided into two kinds ; one is those of a dilatory nature, which delay the plaintiff's remedy, not by questioning his right of action, but merely the propriety of the action, or the mode in which it is brought ; the other is peremptory, or those which deny the plaintiff's right of action. The former of these pleas or answers are in abatement, the latter in bar. of the action. Before interposing any defense it is sometimes proijer, and sometimes necessary to obtain leave of the court for that pur- pose. See " Leave to Defend." There are persons who are privileged from civil suits or actions, such as ambassadors, members of congress, of assembly, and some others. § 2. Of pleas or answers in abatement. Pleas or answers in abatement, when sufficient, show some ground why the action should not be sustained. The usual grounds are such as relate to the disability of the plaintiff, to the disability of the defend- ant, to the count or declaration, or to the writ. This subject will be fully explained under the title Abatement. § 3. Pleas or answers in bar. Such pleas are founded upon the principle or fact that the plaintiff has no cause of action. The matters which may be successfully interposed as a defense are very numerous ; and they will be found in this work under the title " Defenses," where most of them will be carefully and fully explained. § 4. Demurrer. One very common mode of defense is by demurrer to the declaration or complaint, when no cause of action is set forth therein, or when it is not sufficiently stated. PRINCIPLES OF DEFENSES AT LAW, ETC. lo& The grounds of demurrer will be set forth under the title De- murrer. Such a defense admits the truth of the facts alleged, if they are properly pleaded, and the only question then is, as to their legal sufficiency. § 0. Deny the facts. Under the common-law system the plea of the general issue put the plaintiff upon proof of the material facts alleged in his declaration; and besides that, there were many defenses which might be proved under this plea. At the present day there are many cases in which a mere general denial operates simply to put the plaintiff upon proof of his case ; but do not allow the proof of any defense not affirmatively set up by the defendant in his pleading. See " Gfeneral Denial." § 6. Admit the facts alleged, but set up matter in avoidance. When the defendant cannot truly or successfully interpose a denial of the facts alleged in the plaintiff 's declaration or com- plaint, he may either expressly admit their truth, or may im- pliedly admit them by not denying their truth. In such cases, if the defendant has any valid defense upon the facts it must be set up by way of matter in avoidance of the plaintiff's action. Such matters are very numerous, and will be found under the proper heads in the part of this work entitled ' ' Defenses.' ' § 7. Counterclaim. The whole subject of counterclaim as i defense will be discussed elsewhere. See "Counterclaim," § 8. Set-off. See that title for the law upon the subject 160 ACCIDENTS. CHAPTER III. OF ACTIONS FOUNDED UPON, OR BELATtNQ TO ACCIDENTS. ARTICLE I. ACTIOKS AT LAW. Section 1. When an action lies. An action at law does not lie against a person for causing an injury to another, by an accident wholly unavoidable ; but, if any blame be imputable to the defendant, although he be innocent of any intention to injure, as where he drives a spirited horse improperly, or uses imper- fect harness, and the horse takes fright and kills another, an action lies. Wakeman v. Robinson^ 8 Moore, 63 ; S. C, 1 Bing. 213. It is sufficient if the injury be the direct and immediate consequence of a force exerted by the defendant without the exercise of due care, unless the force was used strictly in self- defense. Thus, where in shooting at butts upon a trial of skill with a bow and arrow, the archer's arrow glanced and struck another, he was held responsible in damages, although he was doing an act lawful in itself, and had no unlawful purpose in view. Year Book, 21 H. 7, 28 a. See Bullock v. Babcock, 3 Wend. 391. And the same rule was applied where an uninten- tional injury was caused by the glancing of a pistol ball, shot at a mark. Welch v. Durand^ 36 Conn. 182 ; S. C, 4 Am. R. 65. So, where a number of persons were lawfully exercising themselves at arms, one whose gun accidentally went oflf, was held liable for the injury occasioned by the* accident. Wearier V. Ward^ Hobart, 134. But, as in all these and similar cases a recovery is properly put on the ground of negligence, a full dis- cussion of them will more appropriately fall under the head of Negligence. § 2. When no action lies. Where a person, in the performance of a lawful act, causes an injury to the person or property of another, he is not liable, in the absence of all negligence. The general rule is stated to be, that the plaintiff must come prepared with evidence to show that the intention was unlawful, or that the defendant was in/az^?^ ; for, if the injiuy was unavoidable ACCIDENTS. 161 and the conduct of the defendant was free from blame, he will not be held liable. Broion v. Kendall^ 6 Cnsh. 292 ; WaJceman v. Robinson^ 1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Id.; Davis v. Saunders, 2 Chitt. 639 ; Vincent v. Stineliour, 7 Yt. 69 ; Strouse v. Wliitflesey^ 41 Conn.; S. C, 12 Alb. L. J. 360. Thus, if A sets fire to his own fallow- ground, as he may lawfully do, which communicates to and fires the woodland of B, his neighbor, no action lies against A, unless there was some negligence or misconduct in him or his servant. ClarJc V. Foot, 8 Johns. 422 ; Simons v. Monier, 29 Barb. 419 ; Stuart V. Hawley, 22 id. 619. So, where a person is using fire for any lawful purpose, and is guilty of no negligence, he is not responsible for accidents occurring without fault on his part. Bizzell V. Boolter, 1 6 Ark. 308 ; Lansing v. Stone, 37 Barb. 15 ; Hinds V. Barton, 25 N. Y. (11 Smith) 544; Ooolc v. T7ie Champlain Transportation Co., 1 Denio, 91. And if any one driving along a highway with due care, accidentally injures another person or his property, he is not liable in the absence of negligence. Hammock v. FAiYe, 11 C. B. (N. S.) 587 ; Center v. Finney, 17 Barb. 94 ; Brown v. Collins, 53 N. H. 442 ; S. C, 16 Am. Rep. 372 ; Holmes v. Matlier, L. R., 10 Exch. 261 ; S. C, 16 Am. Rep. 884, n. So, the owner of property, which, without his consent, ifa carried by flood or storm down a stream, and deposited upon the lands of another, is not liable for any damage occasioned, unless he reclaims the property. Sheldon v. Sherman, 42 'N. Y. (3 Hand) 484 ; S. C, 1 Am. Rep. 669 ; Livezey v. PJiiladelphia, 64 Penn. St. 106 ; S. C, 3 Am. Rep. 578. ISTor is the owner of a steam boiler, which is operated upon his own premises in a lawful manner, liable, without proof of negligence, to an adjoin- ing owner, for damage done to his property by reason of an acci- dental explosion of such boiler. Losee v. Buchanan, 51 N. Y. (6 Sick.) 476; S. C, 10 Am. Rep. 476. And where one builds a mill-dam upon a proper model, and the work is well and sub- stantially done, he is not liable to an action, though it break away, in consequence of which his neighbor's dam and mill below are destroyed. Negligence should be shown in order to make him liable. lb. Livingston v. Adams, 8 Cow. 175 ; Sheldon V. Sherman, 42 N. Y. (3 Hand) 484 ; S. C, 1 Am. Rep 579 ; see Wilson V. City of New Bedford, 108 Mass. 261 ; S. C, 11 Am. Rep. 352 ; CaJiill v. Eastman, 18 Minn. 324; S. C, 10 Am. Rep. 184 ; Rylands v. Fletcher, Law Rep., 3 H. L. 330 ; 11 Alb. Law Vol. I. — 21 162 ACCIDENTS. Jour- 233. In these, and in many like cases, the injury arises from a fortuitous occurrence beyond the control of man, termed "the act of God ;" and the party suffering must submit to it, as a providential dispensation. Anthony v. Haney, 8 Bing. 191 ; Byan v. N. T. Cent R. R. Co., 85 N. Y. (8 Tiff.) 210 ; Gault v. Humes, 20 Md. 297 ; Yincent v. Stineliour, 7 Yt. 62. There is no liability on the part of him through whose innocent instru- mentality the injury occurs, and his promise to respond in dam- ages would be without consideration and void. Sheldon v. Sher- man, 42 N. Y. (3 Hand) 484 ; S. C, 1 Am. Rep. 569. See this subject more fully discussed under "Act of God," as a defense to actions. ARTICLE II. ACTION'S IN" EQUITY, AND WHEN AN ACTION LIES. Section 1. In general. In many cases of accident, relief may be obtained in an equitable action, and the term accident, in the view of a court of equity, means not merely inevitable casualty, or the act of providence, or what is technically called vis major, or irresistible force ; but such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct in the party. 1 Story's Eq. Juris., § 78 ; Brown v. Elliott, 14 N. J. L. 353 ; Chase v. Barrett, 4 Paige, 148 ; Jones v. Woodhull, 1 Root (Conn.), 298. The juris diction of the court, arising from accident in this sense, is of very ancient origin, and probably coeval with the existence of equity itself as a distinct branch of jurisprudence. See Armitage V. Wadsworth, 1 Madd. 189, 193 ; East India Company v. Bod- dam, 9 Yes. 466. So, accident was a circumstance on which relief might be obtained under the Roman system of jurispru- dence, on thegroundof natural justice. Dig. XXYII, 1, 1, 13, 7; 1 Spence'sEq. Juris. 628. It is not, however, every case of accident which will justify the interposition of a court of equity. Whitfield v. Faussat, 1 Yes. 392, 393. The jurisdiction being concurrent, will be maintained in those cases only in which there is not a plain, adequate and complete remedy at law, and the party has a conscientious title to relief. Both these grounds must concur in the given case ; otherwise, a court of equity is bound to withhold its aid. See 1 Story's Eq. Juris., § 79 ; Grant v. Quick, 5 Sandf. (N. Y.) 612 ; Tucker v. Madden^ 44 Me. 206; Keen v. Jordon, 13 Fla. 327. -^And ACCIDENTS. 163 since courts of law, in modern times, frequently inr- rfere to grant a remedy under circumstances in which it would have been foimerly denied, and as, by exj)ress legislauve enactments, sucli courts have, in some cases, had conferred upon them the same remedial facult}^ which belongs to courts of equity, it has re- sulted that accident now rarely forms a satisfactory reason for equitable interference. Seel Story's Eq. Juris., § 80; 3 Broom & Had. Com. 61 (Wait's ed., vol. 2, 64.) In most cases, where the jui-isdiction is still allowed to exist, it is merely because, hav- ing been once acquired, it cannot be afterward lost or aban- doned. Id.; and see Hall v. Hall^ 43 Ala. 488; Kingy. Baldwin, 17 Johns. 384; East India Company v. Boddam, 9 Ves. 466; Mayne v. Grisioold, 3 Sandf (N. Y.) 463. Where courts of equity originally obtained and exercised jurisdiction, that ju- risdiction is not overturned or impaired by the fact that courts of law have subsequently granted a remedy in similar cases. Case v. Fisliback, 10 B. Monr. (Ky.) 40; SJiieldsv. Cone, 4 Rand. (Ya.) 541. § 2. Lost instruments under seal. The jurisdiction in equity, in the case of lost bonds, or other instruments under seal, is founded upon a doctrine of the ancient common law, that no I'emedy existed in a court of law in such case, because there could be no profert of the instrument, without which the decla- ration would be fatally defective. East India Company v. Boddam, 9 Yes. 464; Bromley v. Holland, 7 id. 19; Toulmin V. Price, 5 id. 238, and notes; Atkinson v. Leonard, 3 Bro. Ch. 218. In modern times, profert may, however, be dispensed with, if an allegation of loss, by time and accident, is stated in the declaration, and thus, courts of law may now entertain juris- diction. But it does not follow, because a court of law will give relief, that a court of equity loses the concurrent jurisdiction which it has always had. Mayne v. Griswold, 3 Sandf. (N. Y.) 478; 1 Story's Eq. Juris., § 80; Shields v. Com., 4 Rand. (Ya.) 541. The latter court still retains its jurisdiction, and in the case of lost or destroyed bonds, etc., affords relief more com- plete, adequate, and perfect, than can be done by courts of law. Allen V. State Bank, 1 Dev. & B. Eq. (N. C.) 1 ; Irwin v. Plan- ters' Bank, 1 Humph. 145; Deans v. DortcTi, 5 Ired. Eq. (N. C.) 331 ; Carter v. Jones, 5 id. 196. Thus a court of law, in the absence of a statutory authority, is generally incompetent to require as terms of granting relief, that the party shall give, when proper, a suitable bond of indemnity; but this, a court of equity may do, and will also require the party to make an affi- 164 ACCIDENTS davit of tlie loss of the instrument. Leroy v. Veed^r, 1 Johns. Cas. 417; Walmsley v. Cliild, 1 Yes. 344. See Oicen v Paul, 16 Ala. 130; Hill v. Lackey, 4 Dana, 81; Chewing v. Singleton^ 2 Hill's Eq. (S. C.) 371 ; Bennington v. T7ie Governor, 1 Blackf. (Ind.) 78; Davis v. Pettit, 11 Ark. 349. As to analogous relief in a court of law, by requiring the previous offer of a bond of indemnity, see Fales v. Russell, 16 Pick. 315 ; Hansard v. Robinson, 7 B. & C. 90; Tuttle v. StandisTi, 4 Allen, 481; Synith V. Rockwell, 2 Hill (N. Y.), 482. A court of equity will not grant relief to an obligee in the case of a lost bond, where it has been destroyed or suppressed by the obligee himself. Davis v. Davis, 6 Ired. Eq. (N. C.) 418. And see Blade v. JVoIand, 13 Wend. 173. The loss of a deed is not always a ground to come into a court of equity for relief; for, if there is no more in the case, although the party may be entitled to a discovery of the original existence and validity of the deed, courts of law may afford just relief, since they will admit evidence of the loss and of the contents of a deed, just as a court of equity will do. WJiiifield\. Fans- sat, 1 Ves. 392, 393. See Donaldson v, Williams, 50 Mo. 407; Tlionias v. Coldwell, 50 111. 138. Therefore, to enable a party to come into equity for relief, in case of a lost deed, it is incumbent upon him to establish, that either there is no remedy at all at law, or no remedy which is adequate, and adapted to the circum- stances of the case. See 1 Story's Eq. Juris., § 84; Worthy v. Tate, 44 Ga. 152; Dormer v. Fortescue, 3 Atk. 132; Dalton v. Coatsworth, 1 P. Wms. 731. Where relief is sought in the case of a lost deed concerning the title to lands, an affidavit of the loss must be annexed to the bill. Carlisle v. Ramsey, 4 Ind. 242. On proof of the loss of a mortgage deed of land to secure personal support, a court of equity will decree a new mortgage to be made. Lawrence v. Lawrence, 42 N. H. 109; but see Hodd,y V. Hoard, 2 Cart. (Ind.) 474; and it has been held, that where a deed containing an error reformable in equity is lost, the execution of a new and correct deed may be decreed. Uuds- peth V. Thomaston, 46 Ala. 470. So, where an unrecorded deed has been lost, and the evidence introduced ^hows transactions between the parties to the deed tending strongly to establish a conveyance, and such evidence is uncontradicted, and its force is not rebutted or destroyed, a court of equity will presume that a deed was executed and delivered, and will protect the rights of the grantee. Schaumburg v. Hepburn, 39 Mo. 125. ACCIDENTS. 166 § 3. Lost notes, negotiable. A general principle applicable to negotiable instruments is, that the party to such an instrument, when he is called upon to pay it, has the right to insist that it shall be produced and delivered up to him. As the owner, how- ever, in case of loss of the instrument, cannot do this, the courts allow a recovery upon the terms of his giving proper indemnity. But a court of common law cannot require such indemnity as a part of its judgment. It can neither impose terms upon the plaintiff as a condition of such judgment, nor prevent the issu- ing of an execution thereon. Pierson v. HutcMson, 2 Camp. 211 ; Aranguren v. Scholfield, 1 Exch. 494; 38 Eng. Law & Eq. 424 ; Greenway, ex parte, 6 Ves. 862. The only remedy in such eases is in a court of equity, where all the circumstances of the loss can be fully investigated, and a suitable and proper indem- nity provided. Dames v. Dodd, 4 Price, 176 ; S. C, 1 Wils. Exch. 110 ; Wa'Ltnsley v. Child, 1 Ves. 344 ; Mossop v, Eadon, 16 id. 430 ; Hansard v. Rohinson, 7 B. & C. 90 ; Clay v. Crowe, 8 Exch. 294 ; Crowe v. Clay, 9 id. 604. Such is the firmly estab- lished doctrine in England, and in this country the weight of authority is in harmony with the English rule. See Savannah National Bank v. HasMns, 101 Mass. 370 ; S. C, 3 Am. Rep. 373 ; Moses V. Trice, 21 Grratt. (Ya.) 556 ; S. C, 8 Am. Rep. 609 ; Wright v. Wright, 54 N. Y. (9 Sick.) 437 ; Tuttle v. Standish, 4 Allen, 482. In all cases where, by the accidental loss of the note or bill, the plaintiff cannot comply with the defendant's right under his contract to have the identical instrument surrendered, and it is within the power of the court to secure the defendant from all appreciable injury, relief will be decreed to the plain- tiff in equity, upon terms and conditions which will secure and protect the rights of all. And it is held to make no difl'erence in principle whether the defendant' s contract is an acceptance or only a promise to accept. Savannah National Bank v. Hask- ins, 101 Mass. 370 ; S. C, 3 Am. Rep. 373. In some of the States statutory remedies have been provided, by which most of the difficulties standing in the way of actions at law have been removed. See as to New York, 2 R. S. 406, §§ 75, 76 ; Wright v. Wright, 54 N. Y. (9 Sick.) 437 ; Alabama, Posey V. Decatur Bank, 12 Ala. 802 ; Branch Bank at Motile v. Till- man, 12 id. 214 ; Louisiana, Nagel v. Mignot, 7 Mart. 657 ; Sid. 488 ; Iowa, Temple v. Gove, 8 Iowa, 511 ; Michigan, Higgins v. Watson, 1 Mich. 428 ; Georgia, Banks v. Dixon, 24 Ga. 483 ; Tennessee, Union Bank v. Osborne, 6 Humph. 318. But, inde- 166 ACCIDENTS pendently of the statute, an action at law is permitted in Teunes see on any lost note or bill. Union Bank v. Warren^ 4 Sneedj 167. As to Mississippi, see Olarlt v. Reed^ 12 Smedes & M. 554 ; Kentucky, Sehree v. Dorr, 9 Wheat. 558 ; Scott v. Cleveland, 3 T. B. Monr. 62; Commercial BanTi v. Benedict, 18 id. 307; Virginia, Shields v. Commonwealtli, 4 Rand. 541 ; Farmers' Bank of Virginia v. Reynolds, id. 186. It may be remarked generally of these statutory provisions, that they secure the action at law upon lost negotiable paper, upon tendering a bond of indemnity, and after parol proof of the contents. In other States having common-law and equitable powers blended in the same courts, it is the constant practice of those courts to assume jurisdiction in this class of cases. Thus, in Pennsylvania, it is held that the failure to indemnify is not a defense in bar of the action, but is merely a prerequisite to the issuing of an execu- tion to enforce the judgment, and the right to restrain such exe- cution is an equitable power vested in the courts, to be adminis- tered with the machinery of common-law forms. Bishing v. Graham, 14 Penn. St. 14. And see Fales v. Russell, 16 Pick. (Mass.) 315 ; Bean v. Keen, 7 Blackf. (Ind.) 152 ; Doornady v. State Bank of Illinois, 2 Scam. 236 ; Welton v. Adams, 4 Cal. 37 ; Bell v. Moore, 9 Ala. 823 ; Bullet v. Bank of Pennsylvania, 2 Wash. C. C. 172. These principles have, however, no applica- tion in those States where the common-law and the equity tri- bunals are separate and distinct. In such case the courts of common law steadily refuse to take jurisdiction of suits upon lost negotiable instruments. See Thayer v. King, 15 Ohio, 242 ; Rowley v. Ball, 3 Cow. 303 ; Kirhy v. Sisson, 2 Wend. 560 ; Wardlaw v. Oray, Dudley's Eq. (S. C.) 85 ; Moses v. Trice, 21 Graft. (Ya.) 556 ; S. C, 8 Am. Rep. 609. There is, however, no absolute necessity of resorting to a court of equity, as the law now stands, except in the case of negotiable instruments, nego- tiated while current, courts of law now allowing a recovery at law, upon 'lost instruments in all other cases. See Moore v. Fall, 42 Me. 450 ; Torrey v. Foss, 40 id. 74 ; Hough v. Barton, 20 Vt. 455 ; Hopkins v. Adams, id. 407 ; Wright v. Wright, 54 N. Y. (6 Sick.) 437 ; 1 Story's Eq. Juris., § 86 a. In cases of this kind, a bond of indemnity is never necessary, except in those cases in which the note alleged to be lost is negotiable : and the negotiability will not be presumed, but must be proved. Blade V. Noland, 12 Wend. 173 ; Wriglit v. Wright, 54 N. Y. (9 Sick.) 437. The American rule upon indemnity is briefly stated to be ACCIDENTS. 16" "that if it can be sliown in any way that the defendant may be wrongfully injured by paying, he may require security, but glIj then." 2 Pars, on Bills & Notes, 304. To sustain an equitable action for relief, in the cases of sup- posed lost instruments, an af&davit of the loss of the instrument, and that it is not in the possession or power of the plaintiff, ia required. East India Co. v. Boddam, 9 Yes. 466 ; Leroy v. Veeder, 1 Johns. Cas. 417; Pennington v. The Gomrnor.^ 1 Blackf. (Ind.) 78. But, if the proof of the loss is clear, the affi- davit thereof may be dispensed with. Graham v. Hackwith, 1 A. K. Marsh. (Ky.) 424. So, the rule, as to the necessity of an affidavit, is held to apply in those cases only, where, if the instrument had not been lost, the remedy of the party would have been at law, and not in equity. Purniance v. Holt, 3 Gilm. (111.) 395. The finding of the lost instrument after the institution of a suit for the recovery of its amount, does not oust the court of jurisdiction. Crawford v. Summers, 3 J. J. Marsh. (Ky.) 300 ; Hamlin v. Hamlin, 3 Jones' Eq. (N. C.) 191 ; Miller v. TTeZZA-, 5 Mo. 6. Whei^e it is shown that the plaintiff voluntarily burned or destroyed the note, inferior or secondary evidence of the con- tents of the note will not be received in evidence. Blade v. Noland, 12 Wend. 173. § 4. Forfeitures. From a very early period, courts of equity have granted relief against penalties and forfeitures in certain cases. Thus, where one who was bound in an obligation to pay money, paid it and took no acquittance, or took an acquittance without seal, or " the money was paid within a short time after the day," if judgment was had in any of these cases at law, the court of chancery would give relief. This jurisdiction was after- ward extended to cases where the default was of a trifling nature, irrespective of accident, or apparently of any excuse, as when all the debt had been paid but a small amount, and that had been tendered. See 1 Spence's Eq. Juris. 629 ; Underwood v. Swan, Car. 1 ; 1 Rep. Ch. 86. Finally, the jurisdiction of the court was so enlarged as to embrace all cases where relief waa sought against the penalty of a bond, and was also made to include the case of mortgages, where courts of equity constantly allow a redemption, notwithstanding a forfeiture at law. Len- non V. Napper, 2 Sch. & Lefr. 684, 685 ; Seton v. Slade, 7 Ves. 273, 274; 1 Story's Eq. Juris., § 89. See Bostwick v. Stiles, 3a Conn. 195; Crane v. HancJcs, 1 Root (Conn.), 468; Doty v. Whittlesey, id. 310. So, on the other hand, where the vendor 138 ACCIDENTS. reserved a lien "to be enforced within six years or stand for nought thereafter," and he was prevented by the occurrence of the civil war, from enforcing the lien within the time, he was granted relief in equity. Atkins v. Rison, 25 Ark. 138. A coart of equity never lends its aid to enforce a forfeiture. Warner v. Bennett, 31 Conn. 468 ; Smith v. Jewett, 40 N. H. 530. But a condition in a mortgage, that upon default in the payment of interest for a specified number of days "after the time limited for the payment thereof, the principal sum, together with all arrears of interest, shall, at the option of the mortgagee, become and be due and payable immediately," is not in the nature of a forfeiture, to be relieved against by a court of equity. It is an agreement which the parties have a right to make, and the exten- sion of credit is lawfully made dependent upon the punctual payment of interest. Upon the failure of the mortgagor to per- form the condition, the principal becomes due and payable, by the terms of his contract, and, in the absence of fraud, this, like any other contract, will be enforced by a court of equity. Ferris V. Ferris, 16 How. (N. Y.) 102 ; Valentine v. Yan Wagner\ 37 Barb. 60 ; Eubens v. Prindle, 44 id. 336 ; Noyes v. Clark, 7 Paige, 179. See Malcolm v. Allen, 49 N. Y. (4 Sick.) 448. Equitable relief, in cases of penalties and forfeitures, is said to be limited to such cases as admit of compensation, according to the original intent of the parties. Giles v. Austin, 46 How. (N. Y.) 269. §5. Executors and administrators, errors in payments, etc. There are many cases in which a party sustains a loss or injury, while acting in entire good faith, and without negligence, and yet the law aflTords him no relief. Thus, executors and adminis- trators often pay debts and legacies in the course of administra- tion, relying in entire confidence upon a sufficiency of assets for all purposes, audit turns out from unexpected occurrences, that there is a deficiency of assets. There may be no relief at law in such a case, but they will be entitled to it in a court of equity, upon the ground, that, otherwise, the}'' will be innocently sub- jected to an unjust loss, from what the law itself deems an acci- dent. Jolcnson v. Johnson, 3 Bos. & Pul. 162, 169 ; 1 Story's Eq. Juris., § 90. But, to found a good title to relief in equity, it is indispensable that there should have been no negligence or misconduct on the part of such executors or administrators in the payment of the assets. lb. See Brooking v. Jennings, 1 Mod. 174 ; Brisbane v. Dacres, 5 Taunt. 143, 159. ACCIDENTS. 169 Another case in which an executor or administrator would be entitled to equitable relief, is where he receives money, supposed to be due from a debtor to the estate, and pays it away to his testator's creditors, but it turns out that the debt had been paid in the testator's life-time. The supposed debtor may recover back the money in equity from the executor, and the latter msiy in like manner recover it back from the creditors. Fooley v. Uay^ 1 P. Wms. 355, So, if an executor pays one legatee, and there is afterward a deficiency of assets to pay the others, a court of equity will interpose to compel the legatee, so paid, to refund a proportional part of what he has received ; unless the de- ficiency of assets has been occasioned by the waste of the exec- utor, in which case, the legatee who is paid may retain the advantage gained by his superior diligence. Orr v. Kaines, 2 Yes. 194 ; Anonymous., 1 P. Wms. 495 ; Lupton v. Lupton., 2 Johns. Ch. 614, 626. But this rule does not apply where a creditor, instead of a legatee, is in question. The latter is always com- pellable to refund in favor of the former. lb. Noel\. RoMnson, 1 Vern. 90, 94. In Massachusetts, an executor, who has volun- taril}^ paid a legatee, can, on a subsequent discovery of a de- ficiency of assets, recover back the money at law. So, if he has paid some creditors in full, on the supposition of a sufficiency of assets, and it afterward turns out that there is a deficiency of assets, he may recover back from the creditors so paid, in pro- portion to the deficiency. Heard v. DraTie, 4 Gray, 514 ; Walker V. Hill, 17 Mass. 380; Bliss v. Lee, 17 Pick 83 ; Walker y. Brad- ley, 3 id. 261 ; 1 Story's Eq. Juris., § 92, n. ; see Riddle v. Man- demlle, 5 Cranch (U. S.), 329. § 6. Execution of powers. As it regards the defective execu- tion of powers, resulting from accident, courts of equity will interfere to grant relief in favor of persons, in a moral sense entitled to the same, where there are no opposing equities on the other side. Thus,in the absence of any countervailing equity, the execution of a power will be established in favor of creditors. Dennison v. Goeliring, 7 Penn. St. 175. Or a purchaser. Schenck v. Ellingioood, 3 Edw. Ch. 175. Or to provide for the support of a wife or children, or a charity ; but relief will not be granted in favor of the donee of the power, or a husband or grandchildren. Porter v. Turner, 3 Serg. & Rawle, 108. Or re- mote relations, or strangers generally. 1 Story's Eq. Juris., § 95 ; 3 Broom & Had. Com. 61 (Wait's ed., vol. 2, 65). And where the power is specially created by statute, whatever formalities are Vol. L — 22 170 ACCIDENTS. required must be strictly complied with or the defect may not be helped in equity. Smith v. Bowes, 38 Md. 463, See Gridley' s Heirs V. Phillips, 5 Kan. 349 ; Stewart v. StoTces, 33 Ala. 494 ; 1 Story's Eq. Juris., § 96. So, when nothing has been done, or at- tempted to be done, toward the execution of a power, equity, in general, will not interfere, unless the instrument creating the powder sliall have vested, or recognized, in third persons, rights to secure which the execution of the power is necessary. Bar7' V. Hatch, 3 Ohio, 527. And, generally, defects which are of the very essence or substance of the power will not be aided in equity ; as where it is required to be executed by will, and it is executed by an irrevocable and absolute deed. But defects which are not of the very essence or substance of the power may gen- erally be remedied. Thus, a defect which arises from executing the power by a will, when it is required to be by a deed, or other instrument inter vivos, will be aided. 1 Story's Eq. Juris., § 97; and see 3 Broom & Had. Com. 61 (Wait's ed., vol. 2, 65). And relief is given in cases where deeds are, by mistake, sealed and delivered in the name of tlie attorney, instead of the principal, on the ground of aiding a defective execution of powers. Kear- ney V. Vaughan, 60 Mo. 284 ; Salman v. Hoffman, 2 Cal. 142 ; 1 Am. Lead. Cas. 608. So the non-execution of a sheriff's deed, by reason of death, has been relieved against. Stewart \. Stokes, 33 Ala. 494. But equity has never ventured to correct a defect- ive execution of a* will, the mode of executing that particulai instrument being one to which the lepjislature has paid especial attention ; and though through the accidental ignorance of an intending testator, he may fail to carry out his intention, this is an irremediable accident, and rightly so, for reasons sufficiently obvious. 3 Broom & Had. Com. 61 (Wait's ed., vol. 2, 65). The cases of most common occurrence, in which equity will always interfere and grant suitable relief, are those where the power is accompanied with a trust. The j)rinciple running through all the cases is stated to be, "that if the j^ower is one whicli it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of his power, and without discretion whether he will exercise it or not ; and the court adopts the principle relative to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interest of those for whose benefit he is called upon to exe ACCIDENTS. ITJ cute it." Lord Eldon, in Brown v. Riggs, 8 Ves. 574 ; and see Withers v. Teadon, 1 Rich. (S. C.) Eq. 325 ; Gibhs v. Marsli, 2 Mete. (Mass.) 243 ; Osgood v. FranTdin^ 2 Johns. Ch. 1 ; S. C. affirmed, 14 Johns. 527. § 7. Transfer of bills and notes. Eelief will also be granted in equity, where, upon a transfer of a bill of exchange, or a promissory note, there has been an accidental omission by the party to indorse it according to the intention of the transfer. The party, if living, otherwise, his executor or administrator, may be compelled in equity to make the indorsement, and if the party has since become bankrupt, or his estate is insolvent, his assignees will be compelled to make it. The transaction amounts to an equitable assignment, and a court of equity will clothe it with a legal effect and title. Watkins v. Maule, 2 Jac. & Walk. 242; 1 Story's Eq. Juris., § 99, 5. ARTICLE III. WHEN' NO ACTION" LIES. Section 1. Accident preyenting fulfillment of contract. A dis- tinction under this head has been thus stated in a leading case : "Where the law creates a duty or charge, and the party is dis- abled to perform it without any default in him, and he hath no remedy over, there the law will excuse him ; as in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused. But when the party, by his own contract, cre- ates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract. And, therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it." Paradine v. Jane, Aleyn, 26, 27. There is no ground for the interference of equity in such a case. See TTiompkins v. Dudley, 25 N. Y. (11 Smith) 272; Dexter v. Norton, 47 id. (2 Sick.) 62 ; S. C, 7 Am. R. 415 ; ScJiool Trustees v. Bennett, 3 Dutch. (N. J.) 515. The fact that performance of a contract is rendered more burdensome and expensive, by a law enacted after it is entered into, does not exonerate a party from its obligations. Baker v. Johnson, 42 N. Y. (3 Hand) 126. See this subject dis- cussed at length under head of Performance. §2. Covenant to pay rent. Where there is an express cove^ 172 ACCIDENTS. nant to pay rent, tlie party must perform the covenant, although the premises are accidentally destroyed by fire during the term. It is a calamity to be borne by both parties. The tenant and the landlord suffer according to their proportions of interest in the property burnt ; the tenant during the term, and the landlord for the residue. See, generally, 1 Story's Eq. Juris., § 102; Fowler V. Boti, 6 Mass. 63; Hallett v. Wylie. 3 Johns. 44; McKecknie v. Sterling, 48 Barb. 330 ; Brewer v. Herbert, 30 Md. 301 ; Dexter V. Norton, 47 N. Y. (2 Sick.) 62 ; S. C, 7 Am. R. 415 ; Suydam V. Jackson, 54 N. Y. (9 Sick.) 450 ; Truesdell v. Booth, 4 Hun (N. Y.), 100; S. C, 6 K Y. S. C. (T. & C.) 379. § 3. Negligence of party. A party seeking relief in equity, must show a title to relief unmixed with any gross misconduct or negligence of himself or his agents. Courts of equity, there- fore, deny relief to a party upon the ground of accident, if the accident has resulted from his own gross negligence. The gen- eral rule is, that if a party becomes remediless at law by negli- gence, he shall not be relieved in equity. Penny v. Martin, 4 Johns. Ch. 669; Mar. Ins. Co. v. Hodgson, TCranch (U.S.), 336. § 4. Equal equities. So, courts of equity afford no relief on the ground of accident, where the other party is entitled to equal protection. The maxim is, that " between equal equities the law will prevail." See Adams' Eq. 148 ; Landon v. Piatt, 34 Conn. 524 ; Gregory v. Savage, 32 id. 261. § 5. Bona Me purchaser. Equity will not interfere on the ground of accident, against a hona fide purchaser of the legal title for a valuable consideration and without notice, in favor of one who has but an equitable title. In the view of a court of equity, the former is as much entitled to assistance and protec- tion as the latter. See Bush v. Golden, 17 Conn. 602 ; 1 Story' i Eq. Juris., § 108. ACCOUNTING. * IT^ CHAPTER IV. OF ACTIONS KELATING TO, OR FOUNDED UPON, AN ACCOUNTING. ARTICLE I. ACTION" OF ACCOUNT AT LAW. Section 1. When the action lies. Account is a very ancient form of action at the common law, and all the authorities agree in representing it to be one of the most difficult, dilatory and ex- pensive actions that ever existed. It has long since given place to other remedies both in England and the United States, and may now be regarded as obsolete. In some of the States, how- ever, the action is in use in a modified form, to supply defects in their system which arise from the want of a court of equity. See Duncan v. Lyon, 3 Johns. Ch. 351 ; CouscTier v. Tuolan, 4 Wash. 442; Griffith v. Willing, 3 Binn. (Penn.) 317; Stewart -. Kerr^ 1 Morr. (Iowa) 240 ; McMurray v. Raw son, 8 Hill (N. Y ), 59 ; Munroe v. Luke, 1 Mete. (Mass.) 464. At common law, the action of account would lie against guardians in socage, bailiffs and receivers ; and, in favor of trade, by one merchant against another. By statute, as in New York and Virginia, it would lie against a joint tenant or tenant in common of real estate for receiving more than his just share and proportion. See McMurray v. Rawson, 3 Hill, 59 ; 3 Rob. Pr. 411 ; Appleby v. Brown, 24 N. Y. (10 Smith) 143 ; S. C, 23 How. 207. § 2. When the action does not lie. By the old common law, account did not lie for one tenant in common against his co-ten- ant, unless the latter had taken all the profits of the land ; noi by a joint tenant against his companion, unless the latter had re- ceived all the profits for the common benefit of both, and notfoi his own use merely. Archb. N. P. 292. Nor could the action be brought by an executor or administrator, nor against an ex- ecutor, administrator, or infant (lb. See Appleby v. Brown, 24 N. Y. [10 Smith] 143) ; and it would only lie between two mer- chants, and not where the partnership consisted of a larger num- ber, lb.; Portsmouth^. Donaldson, ^2 Penn. St 202; Puryea V. WJiitcomb, 31 V t. 395. 174 ' ACCOUNTING. However, it is found by experience that the most ready and effectual way to settle these matters of account is in a court of equity ; and the remedy by action of account has been very gen- erally supplanted by the more beneficial powers of such a court, whereby not only the production of papers and an account can be compelled, but also an answer on oath can be required and a decree had for the sum due from the defendant. See 3 Bl. Com. 162, 163 ; Taff Yale R. C. v. Nixon, 1 H. L. Cas. Ill ; Neal v. KeeVs Executors, 4 T. B. Monr. (Ky.) 162 ; Attorney-General v. Mayor, etc., of Dublin, 1 Bligh (N. S.), 336. ARTICLE II. ACTIONS OF ACCOUNT IN" EQUITY. Section 1. In general. Courts of equitj^ began to assume juris- diction in matters of account at a very early period ; and they have for a great length of time exercised a general jurisdiciiou not only in all cases of mutual accounts, but have extended the remedy to a vast variety of cases to which the remedy at law never was applicable. No precise rule can be laid down on the subject, but it may be stated generally, that in all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity over accounts is undoubted. But in transactions not of this peculiar character, great complexity ought to exist in the accounts, or some difficulty at law should interpose, some dis- covery should be required, in order to induce a court of chancery to exercise jurisdiction. Bolter v. Biddle, Baldw. C. C. 894 ; Sey- mour V. Long BocTc Co., 20 N. J. Eq. 396 ; Lafever v. Bellmyer, 5 W. Va. 33 ; Gloninger v. Hazard, 42 Penn. St. 389 ; Cummins V. White, 5 Blackf. (Ind.) 356 ; Smith v. Leveaux, 2 De G., J. & S. 1 ; Fowle v. Lawrason, 5 Pet. (U. S.) 495. § 2. No remedy at law. Jurisdiction in equity, in cases of account, has been placed by Mr. Justice Blackstojste upon the sole ground of the right of the courts of equity to compel a dis- covery. 3 Black. Comm. 437, 439. But this, although admitted to be a strong ground of jurisdiction, is not in modern times regarded as the sole ground. Chancery has jurisdiction of matters of account, notwithstanding no discovery is required. Ludlow V. Simond, 2 Caines (N. Y.), 1 ; and this jurisdiction ia founded upon the consideration, that the remedy in equity, in ACCOUNTING. 175 cases of accoant, is generally more complete and adequate than it is or can be at law. lb. Duncan v. Lyon, 3 Johns. Ch. 361 ; RatJibone v. Warren, 10 Johns. 595 ; McLaren v. Steapp, 1 Ga. 376 ; Wallcer v. CTieever, 35 N. H. 339 ; Watt v. Conger, 21 Miss. 412; White V. Hampton, 10 Iowa, 238 ; Scruggs v. Luster, 1 Heisk. (Tenn.) 150. So, it is the well-established American doctrine, that where equity obtains jurisdiction of a cause for any purpose, it will generally retain it, until complete justice is effected. Corly V. Bean, 44 Mo. 379 ; Peoria v. JoTinson, 56 111. 45 ; Boyd v. Hunter, 4A Ala. 705 ; Day v. Cummings, 19 Vt. 496; Traip v. Gould, 15 Me. 82 ; Lafever v. Bellmyer, 5 W. Ya. 33 ; DeBemer V. Drew, 39 How. (N. Y.) 466 ; 57 Barb. 438 ; Mathhone v. War- ren, 10 Johns. 595. But this maxim is properly applicable, only where the court obtains legitimate jurisdiction of the cause, and for some reason, affecting the cause, or some portion of it. Thus, if proper application is made to a court of equity for an injunction, to restrain the infringement of a patent, the court will retain the cause, and will settle other matters between the parties, inseparably connected with the infringement, but which do not constitute ground for original equitable jurisdiction. Brooks V. Stolley, 3 McLean (C. C), 523. So, where application is made in equity by one partner, to restrain his copartners from violating partnership articles, the cause will be retained, and jther matters disposed of. not strictly of equitable cognizance. See 1 Story's Eq. Juris., §74, h ; Green y. Spring, A^ 111.280; Daniel v. Green, 42 id. 472 ; DeBemer v. Drew, 39 How. (N. Y.) 466 ; 57 Barb. 438. If, however, the object of the party in com- ing into equity is general discovery merely, it gives the court no jurisdiction of the cause. 1 Story's Eq. Juris., § 74, c; see Fowle V. Lawrason, 5 Pet. (U. S.) 495 ; Stacy v. Pearson, 3 Rich. Eq. (S. C.) 148 ; Lyons y. Miller, 6 Gratt. (Ya.) 427, 438 ; Mitchell V. Greene, 10 Mete. (Mass.) 101 ; Pease v. Pease, 8 id. 395. § 3. Mutual accounts. Courts of equity exercise a general ju- risdiction in all cases of mutual accounts, and a fortiori, when complicated, and this upon the ground of the inadequacy of the remedy at law. Ludlow v.Simond, 2 Cai. Cas. (N. Y.) 1, .38, 52 ; Laf every. Bellmyer, 5 W. Ya. 33 ; Gloninger v. Hazard, 42 Perm. St. 389. So, such courts also entertain jurisdiction, when the accounts to be examined are on one side only, and a discovery is wanted in aid of the account, and is obtained. lb. See^Oil Co. V. Adams, 6 Phila. (Penn.) 182 ; Pearl v. Nashville, 10 Yerg, (Tenn.) 179. But where the accounts are all on one side, and no 176 ACCOUNTING. discovery is sought or required, the jurisdiction will not be maintainable. WalTcer v. C7ieever, 25 N. H. 339. See McMarUn V. Bingliam, 27 Iowa, 234 ; Haywood v. Hutcliins, 65 N. C. 574. In illustration of the general principles here stated, it has been held that a court of equity may properly entertain jurisdiction where there has been a running account for many years between the parties, consisting of numerous items, notwithstanding assumpsit would also lie. Hickman v. Stout, 2 Leigh (Va.), 6, And where the accounts between the clerk and marshal of a federal court had continued for a long time, until they became complicated, it was held, that chancery would take jurisdiction to enforce a settlement of the account, though there might have been originally, and still, a remedy at law. Hay v. Marshall^ 3 Humph. (Tenn.) 623; and see Kirlcman v. Vaulier, 7 Ala. 217. So, a series of consignments on one side, and of payments on the other, constitutes an account which may be settled by suit in equity. McLin v. McNamara., 2 Dev. & B. Eq. (N. C.) 82 ; and where a plaintiff seeks the taking and settling of a mere partner- ship account, it belongs to a court of equity. Taylor v. Holman, Mill's Const. (S. C.) 172. A bill in equity is held to lie for an account of goods sold on commission, if complicated, or if thei;e be embarrassment in making proof, though the items are all on one side. Taylor v. TompMns, 2 Heisk. (Tenn.) 89 ; and see Har grave v. Conroy, 19 N. J. Eq. 281. But where the transac- tions between the parties have no business connection with each other, but stand entirely independent, as in case of a physician who renders services professionally to a farmer, and also buys produce of him, there is no jurisdiction in equity. Haywood v. HutcMns, 65 N. C. 574. In New Jersey, the court of chancery will not entertain a bill by one partner of a lottery firm for a discovery and accounting, and a division of the proceeds of a lottery, which is illegal, and a misdemeanor by the laws of that State. And the fact that the lottery was conducted in another State where it was allowed by law, or that the drawing has been completed, so that nothing un- lawful remains to be done (an accounting and distribution only being prayed), will make no difference. Watson v. Murray, 23 N. J. (Law) 257. § 4. Appropriation. In matters of account where several debts are due by the debtor to the creditor, it frequently becomes im- portant to the parties to ascertain to which of such debts a par- ticular payment should be appropriated. It is not easy in every ACCOUNTING. 177 case to say how the appropriation ought to be made, but :he fol- lowing rules may be deemed well settled Where a person owes upon several distinct accounts, he has a right to direct his payments to be applied to any one of them as he chooses. This is called the rigJit of appropriation. Cham- penoes v. Fort, 45 Miss. 355 ; King v. Andrews, 30 Ind. 429 ; Leef V. Goodioin, Taney (C. C), 460; Bacon v. Brown, 1 Bibb (Ky,), 334. But if this right be not exercised at the time of pay- ment, the creditor may at any time apply the payment to which account he pleases. Calvert v. Carter^ 18 Md. 73 ; Haymes v. Walte, 14 Cal. 446 ; Mayor, etc. v. Patten, 4 Cranch (U. S.), 317; Hargroves v. CooTce, 16 Ga. 321 ; Nuttall v. Brannin, 5 Bush (Ky.), 11. See Waterman v. Younger, 49 Mo. 413; Howard v. McCall, 21 Gratt. (Ya.) 205. If no appropriation be made or in- dicated by either party, the application devolves on the law, or the court ; which, it is said, will direct it according to equity. 1 Am. Lead. Cas. 283 ; Emery v. Fichout, 13 Vt. 15 ; Leef v. Goodwin, Taney (C. C), 460; Seymour v. Yan Slyck, 8 Wend. 403 ; Campbell v. Yedder, 1 Abb Ct. App. (N. Y.) 295 ; S. C, 3 Keyes, 174. Generally, the payments will be applied to extin- guish the debts according to priority of time. Syr ague v. Hazen- loinkle, 53 111. 419 ; Langdon v. Boioen, 46 Vt. 512 ; St. Albam V. Failey, id. 448 ; FaircTiild v. Holly, 10 Conn. 176 ; Cromp- ton V. Pratt, 105 Mass. 255. But this rule is not universal. If it apj)ears that the intention of the parties was otherwise, the court will give effect to such intention. So, if there are separate demands, part of which are secured and part not secured, the application will be made on those not secured. Langdon v. Boioen, 46 Vt. 512; Field v. Holland, 6 Cranch (U. S.j, 8. See Yancev. Monroe, 4 Gratt. (Va.) 53 ; Stamford Bank \. Benedict, 15 Conn. 438; Chester v. Wheelwright, 15 id. 562; Callalian V. Boazman, 21 Ala. 246 ; Campbell v. Yedder, 1 Abb. Ct. App. (X. Y.) 295 ; S. C, 3 Keyes, 174. A creditor has no right to apply a general payment to an item of account which is illegal, as a claim for usurious interest ; but if the debtor himself apply the payment to an illegal demand, he cannot afterward revoke it. liohan v. Hanson, 11 Cush. 44 ; Duncan v. Helm 22 La. Ann. 418 ; Bancroft v. Dumas, 21 Vt 456 ; Ayer v. HawJcins, 19 id. 26 ; Caldwell v. Wentworth, 14 N. H. 431 ; Treadwell v. Moore, 34 Me. 115. So, application of a general payment may be made to a debt within the statute of frauds. Haynes v. Nice, 100 Mass. 327, or to a debt barred Vol. I. — 23 TO ACCOUNTING. by the statute cf limitations. Jackson y Bw^e, 1 Dill 311 j Ramsay v. Wc^rner, 97 Mass. 8. Payments by a debtor upon a running account made partly before and partly after his discharge in bankruptcy, of which proceeding the creditor had no notice, may be applied by the latter to the items first due in the account. Hill v. Bobbins, 22 Mich. 477. Where a member of a firm is indebted, and the firm owe the same person, a payment made by such partner will be presumed to be on his own account, JoTinson v. Boone, 2 Harr. (Del.) 172 ; see FaircTiild v. Holly, 10 Conn. 175 ; Sneed v. Wiester, 2 A. K. Marsh. (Ky.) 277. But if the payment be of money belong- ing to the firm, it must be appropriated to the discharge of the partnership debt. Thompson v. Brown, Moody & M. 40. The presumption that where a variety of transactions are in- cluded in one general account, the items of credit are to be appropriated to the items of debit in order of date in the absence of other appropriation. But such presumption may be rebutted by circumstances of the case showing that such could not have been the intention of the parties. See City Discount Co. v. Mc- Lean, L, R., 9 C. P. 692 ; S. C, 10 Eng. R. (Moak's ed.) 863. But such presumption is not rebutted by the fact that the debit items are for goods sold on condition that they shall not become the property of the purchaser till paid for, even though a mem orandum of the condition is entered by the seller in his books containing the account. Crompton v. Pratt, 105 Mass. 255. For a full discussion of the subject of appropriation of payments, see "Payment." § 5. Agency. It is the duty of an agent, where the business in which he is employed admits of it, or requires it, to keep regular accounts of all his transactions on behalf of his principal, not only of his payments and disbursements, but also of his re- ceipts ; and to render such accounts to his principal at all reason- able times, without any suppression, concealment, or overcharge. Story on Agency, § 203 ; Hatoji v. Welto?i, 32 N. H. 352. See Haas V. Damon, 9 Iowa, 589. This duty is strictly enforced in courts of equity ; the most important agencies falling under the cognizance of such courts being those of attorneys, factors, bail- ifis, consignees, receivers, and stewards. In most of these agen- cies, there are mutual accounts between the parties; but, even where the account is on one side only, the relation naturally gives vise to great personal confidence, and in cases of contro- ACCX)UNTINa. ITO rersy the principal is seldom able to establish his rigiits, or to ascertain the true state of the accounts, without resorting to equity to compel a discovery by the agent. See 1 Stoiy's Eq. Juris., § 462; Ormond v. Hutchinson, 13 Ves. 53; Taylor v. Tompkins, 2 Heisk. (Tenn.) 89 ; Massey v. Dames, 2 Ves., Jr., 318. See Rich v. Austin, 40 Yt. 416. So, where the accounts are too complicated to be dealt with in a court of law, a court of equity will entertain jurisdiction. Hill v. South Staffordshire Railway Co., 11 Jur. (N. S.) 192. The mere relation of principal and agent does not, however, entitle the principal to come into a court of equity for an account, if the matter can be fairly tried at law (1 Story's Eq. Juris., § 462, a; Barry v. Stevens, 3 Beav. 258) ; nor can an agent maintain a bill for an account solely upon the ground that he was entitled to commissions for his services. 1 Story's Eq. Juris., §462, a. See Has/cins v. Burr, 106 Mass. 48 ; Hargrave v. Conroy, 4 C. E. Green (N. J.), 281 ; Moxon v. Bright, L. R., 4 Ch. App. 292. And, in general, a bill will not lie by an agent against his principal, for an account, unless some special ground is laid, as the incapacity to get proof unless by discovery. Dinwiddle v. Bailey, 6 Yes. 136 ; Wilson v. Mallett, 4 Sandf. (S. C.) 112. But in the "case of stewards, a discovery from his principal is ordinarily necessary, for, as has been said, "the nature of this dealing is, that money is paid in confidence, without vouchers, embracing a great variety of accounts with the tenants ; and nine times in ten it is impossible that justice be done to the steward," without going into equity for an account against his principal. lb. See 1 Story's Eq. Juris., § 462, note; Lord Hardwicke v. Yernon, 4 Yes. 411, 418, note. It has been held that an agent cannot be called on for an ac- counting in chancery, where the agency was for a single transac- tion, as a single consignment, or the delivery of money to be laid out in the purchase of an estate. Coquillard v. Suydam, 8 Blackf. (Ind.) 24 ; NaTiulshaw v. Brownrigg, 7 Eng. Law & Eq. 106. But although a suit at law may be often maintainable in such cases, the party frequently has an election of remedy, and may resort to a court of equity for the attainment of justice. Scott V. Surman, Willes. 405 ; Zetelle v. Myers, 19 Gratt. (Ya.) 62. The true source of jurisdiction is the necessity of reaching the facts by a discovery ; and having jurisdiction for such a pur- pose, a court of equity, to avoid multiplicity of suits, will pro- ceed to administer the proper relief. Post v. Kimherly. 9 Johns. 493; Porter v. Spencer, 2 Johns. Ch. 171 ; Ludlow v. Simond, 2 180 ACCOUNTING. Cai. Cas. 1, 38, 52. See Durani v. Einstein, 5 ilob. (N. Y.) 423 ; 35 How. 223 ; Gonyngliam' s Appeal, 57 Penn. St. 474; Mason v. Man, 3 Desau. 116; Hale v. Hale, 4 Humph. (Tenn.) 183. Cases of account between trustees and cestuis que trust come very appropriately within the jurisdiction of courts of equity, and the same general rules are applicable as in other cases of agency. A trustee is not permitted to make the concerns of his trust profitable to himself, nor, on the other hand, is he liable for any loss occurring in the discharge of his duties, in the ab- sence of negligence, malversation, or fraud on his part. See QuacJcenhush v. Leonard, 9 Paige, 334 ; Slade v. Van Vechten, 11 Paige, 21 ; Barlcsdale v. Finney, 14 Gratt. (Va.) 338 ; Andrews V. Hohson, 23 Ala. 219 ; Hubhell v. Medhury, 53 N. Y. (8 Sick.) 98 ; 54 id, 683. The same rules are applicable to cases of guard- ians and wards, and other relations of a similar character. See 1 Story's Eq. Juris., § 465. In all cases where it is necessary that an accounting should be had to ascertain the rights of tenants in common {Darden v. Cowper, 7 Jones' L. [N. C] 210; Field v. Craig, 8 Allen, 357 ; Leacli v. Beattie, 33 Yt. 195), joint-tenants, partners or part- owners of ships {McClellan v. Osborne, 51 Me. 118 ; Dyckman V. Valienfe, 42 N. Y. [3 Hand] 549), equity has jurisdiction.. But see Pico v. Golunibet, 12 Cal. 414. Such cases involve peculiar agencies similar to those of bailiffs, or managers of property, and require the same operative power of discovery, and the same interposition of equity. 1 Story's Eq. Juris., § 466; Btrelly v. Wilson, 1 Yern. 297. This subject will be further dis- cussed under subsequent heads. § 6. Apportionment. Most cases of apportionment involve matters of account, in which a discovery is essential for the pur- poses of justice ; but aside from this ground of jurisdiction, there are other distinct grounds upon which courts of equity will exercise jurisdiction in such cases, in order to avoid circuity and multiplicity of actions. As it regards apportionment in its application to contracts generally, the rule of the common law is, that an entire contract is not apportionable, unless special!}" stipulated by the parties, and courts of equity have verj^ gener- ally adopted the maxim, mquitas sequitur legem. See 1 Story's Eq. Juris., § 470 ; Granger v. Bassett, 98 Mass. 462 ; Holmes v. Taher, 9 Allen, 246. Thus, in the familiar illustration, where the mate of a ship engaged for a voyage at a certain sum agreed npon therefor, and died during the voyage, it waE held, that at ACCOUNTING. 181 law there could be no apportionment of the wages. Cutter v Powell^ 6 T. R. 320. Where, however, equitable circumstancea intervene, courts of equity will interfere to grant redress ; as, in the case of an apprentice-fee of a fixed sum being given, and the master afterward becomes bankrupt, equity will interfere upon the ground of the failure of the contract from accident,' and decree an apportionment of the premium so given. Hale v. Wehh, 2 Bro. Ch. 78. So, in some other cases, an apportionment of the apprentice-fee has been decreed. See 1 Story's Eq. Juris., § 473. But, on the other hand, where a premium has been paid and the apprenticeship has been dissolved by request of the friends of the apprentice, but without any default in the master, and without any agreement for a return of an}^ part of the pre- mium, there a court of equity will not interfere. No equity attaches itself to such a transaction, nor does the contract import any return. Id., § 474; Hirst v. Tolson, 13 Jurist, 596; Hale V. Webb, 2 Bro. Ch. 78. Apportionment of rent is not unfamiliar to the administration of the law. In equity it is apportionable generally, or rather, each beneficiary is required to contribute according to the benefit he has shared in the use of the premises. See Hall v. Stevenson, 13 Abb. N. S. (N. Y.) 196, 202. In respect to their appor- tionment in certain cases, the same rule is not applicable to rents service and rents charge. If one having a rent ser- vice purchase a part of the land out of which it issues, it extinguishes the rent pro rata, and leaves it good for the bal- ance. So if he release a part of his rent, the residue is not dis- charged. 2 Washb. Real Prop. 17; Ingersoll v. Sergeant, 1 Whart. (Penn.) 337; Bac. Abr., Rent M. But if it be a rent charge, and the holder of the rent purchases any part of the premises, the rent is wholly extinct. So if he releases any part of the land which is charged, the balance is wholly discharged, and the rent will not be apportioned. 2 Washb. Real Prop. 17. But there is nothing in the nature of a rent charge which absolutely pre- vents its being apportioned ; for it is well settled that where the division of the land charged, into several portions, is by the operation of law, an apportionment will take place. Thus, if a part of the lands charged with a rent descend to the grantee of the rent, it being the act of the law and not of the grantee, the rent will not thereby be wholly extinguished, but only pro rata. Id. 17, 18 ; 1 Story's Eq. Juris., § 475, a ; Van Rensselaer V. Chadwick, 22 N. Y. (8 Smith) 32 ; S. C, 24 Barb. 333; Cruge? V. McLaurij, 41 N. Y. (2 Har ^ -nQ ; S. C, 51 Barb. 642. 182 ACCOUNTING. Where tenants in common of land subject to a rent charge, upon a partition, interchange conveyances of their respective parcels, subject, in terms, to the claims of the lessor, an apportionment of the rent is effected if the lessor concurs in the arrangement. The release by the lessor, in such a case, to one of the tenants of the parcel partitioned to him, only extinguishes the rent as to the parcel so released. The other parcel remains liable to its due proportion. Van Rensselaer v. Cliadwick^ 22 N. Y. (8 Smith) 32. In every lease of land, the lessor is so far bound, by implica- tion, for the title and enjoyment by the lessee, that his right to the rent is dejDendent thereon ; and if the tenant is evicted from the demised premises, the rent is thereby suspended. Boston v. Jones ^ 2 Ired. Eq. (N. C.) 350. S > ;i the lessor be evicted of a part of the land demised, by a sii anger on title paramount, it operates as a suspension of the rent yro tanto, and the rent is apportioned and payable only in respect of the residue. lb. Upon the death of a tenant for life, in the middle of a quarter, Ms representative is not entitled to an apportionment of the rent. Gee V. Oee, 2 Dev. & Bat. Eq. (N. C.) 108. As to the apportion- ment of rent where the premises out of which the rent issued are destroyed by fire or otherwise, see 3 Kent's Com. 466, and notes; Cutler V. Potts, 2 Hay. (N. C.) 26 ; S. C, id. 60. A rent service incident to a reversion will not be lost by a grant of part of the reversion, but will be apportioned. And the right of apportionment attaches the instant the sale is made. Lin- ton V. Hart, 25 Penn. St. 193; Reed v. Ward, 22 id. 144. A rent payable in produce and services is apportionable. Van Rensse- laer v. Glfford, 24 Barb. 349. § 7. Contribution. In order the more effectually to do justice to all the parties, courts of equity frequently assume jurisdic- tion over matters of account in cases of contribution. And it is held that the jurisdiction in equity, in such cases, is Qot affected, because a remedy now exists at common law. Hickman v. Mo- Curdy,! S. J. Marsh. (Ky;^) 559; Veile v. Hoag, 24 Vt. 46; Way land V. Tucker, 4 Graft. (Va.) 268; Couch v. Terry, iJ Ala. 22*5. The doctrine of contribution is said to rest on the principle that when the parties stand in equali jure, the law requires equality which is equity, and one of them shall not be obliged to bear the burden in ease of the rest. It is founded, not on contract, but on the principle that equality of burden as to common right is equity. And the cxbligation to contribute arises from the ACCOUNTING. 183 nature of the relation between the parties. Campbell v. Mesier, 4 Johns. Ch. 334 ; S. C, 6 id. 21; Aspinwall v. 8accM, 57 N. Y. (12 Sick.) 331, 335; White v. BanJcs, 21 Ala. 705 ; Russell v. Failer, 1 Ohio St. (N. S.) 327. If the liability arise e^ delicto there is no right to contribution, for there is no equity between wrong-doers. Adams' Eq. 268; Bartle v. Nutt, 4 Pet. (U.S.) 134; Peel- V. Ellis, 2 Johns. Ch. 131 ; Miller v. Fenton, 11 Paige, 18. Though ^his rule is held to be applicable only where the parties, who claim contribution, have engaged together in doing, know- ingly or wantonly, a wrong. Moore v. Appletoji, 26 Ala. 633 ; Armstron^g County v. Clarion County, <6^ Penn. St. 218; S. C, 5 Am. R. 368: AcTieson v. Miller, 2 Ohio (N. S.), 203. The subject of contribution may be illustrated by the case, where different parcels of land are included in the same mort- gage, and are afterward sold to different purchasers, each holding in fee and severalty the parcel sold to himself. Each purchaser is bound to contribute to the discharge of the common burden or charge, in proportion to the value which his parcel bears to the whole included in the mortgage. Stevens v. Cooper, 1 Johns. Ch. 425 ; Cheesehorough v. Millard, id. 409, 415 ; Taylor v. Porter, 7 Mass. 355. To ascertain the relative values of each is, how- ever, a matter attended with much difficulty ; and without a re- sort to a court of equity in sucli a case, the most serious embar- rassments may arise in fixing the proportion of each purchaser, and in making it conclusive upon all others. See 1 Story's Eq. Juris., §§ 494, 485 ; Hyde v. Tracy, 2 Day (Conn.), 422; Cutter v. Bmery, 37 N. H. 567 ; Pansom v. Keyes, 9 Cow. 128. Another illustration of the equit}^ for contribution is found in the doctrine of general average. This, in the sense of the mari- time law, means a general contribution, that is to be made by all parties in interest, toward a loss or expense, which is volun- tarily sustained or incurred for the benefit of all. The principle npon which this contribution is founded, is held not to be the result of contract, but has its origin in the plain dictates of natural law. Abb. on Shipp. 342 ; 1 Story's Eq. Juris., § 490 ; Stirling v. Forrester, 3 Bligh, 590, 596 ; Louisville Ins. Co. v. Bland, 9 Dana (Ky.), 147 ; Mmic v. Holmes, 25 Penn. St. 371. The circumstances under which this equity arises are where a ship and cargo are in imminent peril, and a portion is intention- alh^ sacrificed for the security of the rest ; as, where goods are thrown overboard, or a portion of the ship's rigging cut away, to lighten and save the ship, or the ship itself is intentionally 184 ACCOUNTING. stranded, to save her cargo from a tempest or an enemy, or a part of the cargo is delivered up by way of ransom, or is sold for the necessity of the ship. In all these cases the impending danger is common to all, and the means by which it is averted ought to be a common burden. If, therefore, the ship and the residue of the cargo are preserved by the sacrifice, the parties interested in the ship, her freight, and the merchandise on board, must make good ratable shares of the loss, proportioned to the value which their own goods and the goods sacrificed would have borne, after deducting freight, had they safely reached the port of discharge. If, on the contrary, the sacrifice is not inten- tionally made, but is damage incurred by violence or stress of weather, or if it prove unavailing, or be made not to save the cargo, but to save the lives and liberty of the crew, the principle of contribution does not apply, and the loss must remain where it originally falls. Adams' Eq. 271 ; Sims v. Gurney, 4 Binn. (Penn.) 524; Williams v. Suffolk Ins. Oo., 3 Sumn. 513; Crockett V. Dodge, 3 Fairf. (Me.) 190, The rates of contribution are gen- erally settled by arbitration, but the parties cannot be compelled to refer, and may have recourse to an action at law or a suit in equity. Adams' Eq. 271 ; Sturgess v. Cary, 2 Curtis (C. C), 59 ; Oillett V. Ellis, 11 111. 579. A court of equity affords a safe, con- venient, and expeditious remedy ; and it is accordingly the cus- tomary mode of remedy in all cases, where a controversy arises, and a court of equity exists in the place, capable of administer- ing the remedy. 1 Story' s Eq. Juris., § 491 ; Merithew v. Samp- son, 4 Allen, 192 ; Hallett v. Bousejield, 13 Ves. 190, 196. The beneficial effects of equity jurisdiction over matters of account may also be seen in cases of contribution between sure- ties. Such contribution may, indeed, be enforced at law, as well as in equity. See Harris v. Ferguson, 2 Bailey, 397 ; Norton v. Coons, 3 Denio, 130 ; Rindge v. Baker, 57 N. Y. (12 Sick.) 209, 215 ; S. C., 15 Am. R. 475. But the jurisdiction now assumed in courts of law, in no way affects that originally and intrinsically belonging to equity, and there are many cases in which the relief is more complete and effectual in equity than it can be at law. See Edsell v. Briggs, 20 Mich. 429 ; 1 Story's Eq. Juris., § 496. The right of contribution arises between sureties where one has been called on to make good the principal's default, and has paid more than his share of the entire liability. Adams' Eq. 269 ; Pinkston v. Taliaferro, 9 Ala. 547 ; Mitchell v. Sprout, 5 J. J. Marsh. (Ky.) 264. And the right exists notwithstanding the sev- ACCOUNTIiS-G. 185 eral sureties sign without any communication with each other. Norton v. Coons, 6 N". Y. (2 Seld.) 33 ; S. C, 3 Denio, 130 ; Chaf- fee V. Jones, 19 Pick. 260, 264. Bnt he can only call for contribu- tion when he has paid more than his proportion of the debt, and then for no more than the excess. Rutherford v. Branch Baiik.^ 14 .Ala. 92 ; Lytle v. Pope, 11 B. Monr. (Ky.) 309 ; Fletcher v. Grover, UN. H. 368, 373-4. See Taylor v. Morrison, 26 Ala. 728: llsley V. Jeioeit, 2 Mete. 168. So, a surety, who has paid the whole debt, must show the insolvency of the principal, to entitle him to contribution against his co-surety. Allen v. Wood, 3 Ired. Eq. (N. C.) 386 ; Daniel v. Ballard, 2 Dana (Ky.), 296 ; Pearson v. DucTcham, 3 Litt. (Ky.) 385. Or must show that he has used due diligence, without effect, to obtain reimbursement. McCormacTc v. Obannon, 3 Munf. (Va.) 484. And a surety who has neglected to interpose a legal defense, as, for instance, the statute of limitations, is not entitled to claim contribution from the rest. Fordham v. Wallis, 17 Jurist, 228. But where the estate of a deceased surety of a principal debtor was discharged from liability to the creditor, through his negligence, by opera- tion of the statute of limitations, and a co-surety afterward paid the debt, it was held that the estate was liable to contribute to such co-surety, notwithstanding it was released from direct lia- bility to the creditor. Qamp v. BostwicTc, 20 Ohio St. 337 ; S. C, 5 Am. R. 669. The doctrine of contribution has its origin in the relation of co-sureties or other joint promisors in the same de- gree of obligation. It is not founded upon the contract of surety- ship, but is an equity which springs up at the time the relation of co-sureties is entered into, and ripens into a cause of action where one surety pays more than his proportion of the debt. Prom this relation the common law implies a promise to con- tribute in case of unequal payments by co-sureties. lb. Russell V. Failor, 1 Ohio St. 327. But equity resorts to no such fiction. It equalizes burdens and recognizes and enforces the reasonable expectations of co-sureties, because it is just and right in good morals, and not because of any supposed promise between them. 1 Lead. Gas. Eq. 105; Aspinwall v. Sacchi, 57 N. Y. (12 Sick.) 331, 336. This equity having once arisen between co-sureties, this reasonable expectation that each will bear his share of the burden is, as it were, a vested right in each, and remains for hia protection until he is released from all his liability in excess of his ratable share of the burden. Neither the creditor, the prin cipal, the statute of limitations, nor the death of a party, car Vol. I. — 24 186 ACCOUNTING. take it away. Camp v. BostioicTc, 20 Ohio St. 337 ; S. C, 5 Am. R. 669 ; Howe v. Ward, 4 Greenl. (Me.) 195 ; BacJielder v. Fiske^ 17 Mass. 464 ; Boardman v. Paige, 11 N. H. 431 ; Aspinwall v. SaccM, 57 N. Y. (12 Sick.) 387, 338. In some of tlie States of the Union, courts of law now follow the rule adopted in courts of equity in apportioning the share of au insolvent surety upon those who remain solvent. See Hen- derson V. MoDuffee, 5 N. H. 38 ; Hills v. Hyde, 19 Vt. 69 ; Aiken V. Peay, 5 Strobh. (S. C.) 15 ; Jones v. Blanton, 6 Ired. Eq. (N. C.) 116 ; 1 Story's Eq. Juris., § 496, a. That equity, where the prin- cipal is insolvent, will restrain a surety from fraudulently strip- ping himself of his property, so as to throw the burden of the debt on his co-surety. See Bowen v. HosMns, 45 Miss. 183. There are many other cases of contribution, in which courts of equity exercise jurisdiction for the purposes of justice, but a discussion of them will be found under other and appropriate heads. For a general view of the subject, see Contribution. § 8. Liens. Matters of account, constituting ground for the interference of courts of equity, also arise out of the subject of liens. And in many cases of this kind, a resort to a court of equity, to ascertain and adjust the account, would seem to be absolutely indispensable for the purposes of justice. See Patty V. Pease, 8 Paige, 277; Skeel v. SpraJcer, id. 182 ; see, also, title Liens. § 9. Rents and profits. Equity has jurisdiction in many cases of account, pertaining to rents and profits, not only when they arise from privity of contract, but also when they arise from adverse claims and titles, asserted by different persons. See Bac. Abr., Accompt, B. Accounts between landlord and tenant frequently extend over a long period of time ; and in cases of this kind, where there are controverted claims, a resort to courts of equity often becomes necessary in order to obtain a due adjustment of the respective rights of each party. See 1 Story's Eq. Juris., § 508; Hodges v. Pingree, 10 Gray, 14. In the ordinary case of mesne profits, where there is a clear remedy at law, courts of equity will not interfere, unless there are some special circumstances, rendering interference necessary. But, if such circumstances exist, equity will interfere, not only in cases arising under contract, but in those arising under torts also ; as, where a man intrudes upon an infant's lands, and takes the profits, he may be compelled to account for them, and will be treated as a guardian oi- trustee for the infant. Dormer v. For ACCOUNTING. 187 tescue, 3 Atk. 129 ; Carey v. Burtie, 2 Vern. 342. So, if there is a trust estate, and tlie cestui que trust ccmes into equity upon liis title to recover the estate, he will be decreed to have the further relief of an account of the rents and profits. Dormer v. Fortescue, 3 Atk. 129 ; and see Curtis v. Curtis^ 2 Bro. Ch. 620 ; 1 Story's Eq. Juris., § 512. It has been held, that where matters of account affecting heirs relate entirely to the rents, issues, and profits of lands in contro- versy, and would be included in an adjustment of the rights to the land, there is no sufficient reason for taking them into equity for settlement. Claussen v. Lafranz, 4 G-reene (Iowa), 224. § 10. Waste. It would seem to be the established doctrine, that to maintain jurisdiction in equity for an account in cases of waste, there should be a prayer for an injunction to prevent future waste. See Grierson v. Eyre, 9 Yes. 89 ; Pulteney v. Warren, 6 id. 89 ; Phillips v. Allen, 5 Allen, 85. Though the better doctrine probably is, " that where discovery is sought, and is obtained, there, also, to prevent multiplicit}' of suits, an account ought to be decreed without the additional ingredient of an injunction to stay future waste." See 1 Story's Eq. Juris., § 518 ; Watson v. Hunter, 5 Johns. Ch. 169 ; Eden on Injunct, 206 ; Kerr on Injunct. 284. Mines and collieries, being a species of trade, an account of profits will in all cases be granted with- out reference to the question whether or not an injunction will lie ; or whether or not there is a remedy at law. Id. 285. AETICLE II. WHEN NO ACTIOISm//7,i, 8 Whart. (Penn.) 106. If the ACCOUNTS AND ACCOUNT STATED. 191 boyks appear free from fraudulent practices, and proper to be laid before the jury, tben, in many of the States, the party him- self is required to make oath, in open court, that they are the books in which the accounts of his ordinary business transactions are usually kept. See Taylor v. Tucker, 1 Kelly, 233; Halt v. Ard, 48 Penn. St. 22 ; Funk v. EJj, 45 id. 444 ; Frye v. Barker, 2 Pick. ^^ ; Bassett v. Spofford, I i X. H. 167 ; Rowland v. Bur- ton, 2 Harr. (Del.) 288; Fitzgibhon v. Kenny, 3 id. 317 ; KUcUen V. Tyson, 2 Murph. (N. C.) 314 ; Foster v. Sinkler, 1 Bay. (S. C.) 40 ; Nicker son v. Morin, 3 Wis. 243. In New York the rule is, that to render books of account competent evidence, the party must prove that during the period that the charges were made, he had no clerk ; that some of the articles or work were deliv- ered or performed ; that the books are the account books of the party, and that he keeps correct accounts. Voshurgh v. Tliayer^ 12 Johns. 461 ; Tomlinson v. Borst, 30 Barb. 42 ; Stroud v. Tilton, 3 Keyes, 139 ; S. C, 4 Abb. Ct. App. 326. And it now seems to be the settled law of the State, that parties may intro- duce books of account in evidence, and a party may supply, if he can, the preliminary proof of the correctness of the books by his own oath, whenever it is made to appear that the party had no clerk ; or, if he had one, that the clerk was dead. Burke v. Wolfe, 6 Jones & Spen. (N. Y.) 263. For a full discussion of this subject, which more appropriately falls under the head of Evidence, see 2 Wait's Law & Pr. 486 et seq. ARTICLE II. ACTIONS UPON" OR RELATING TO AN ACCOUNT STATED. Section 1. An account stated. In general. An open account is defined to be one in which some item of the contract is not set- tled by the parties, whether the account consists of one item or of many. Slieppard v. Wllkins, 1 Ala. 62 ; Goodwin v. Harrison, 6 Ala. 438. 'QuX 2^. stated account i^ 201 agreement between the parties to an account, that all the items are true. Stebbins v. Niles, 25 Miss. 267. To make a stated account requires two parties, the debtor and the creditor. There must be a mutual agreement between them as to the allowance and disallowance of the respective claims, and as to the balance as it is struck upon the final adjustment of the whole account and demands of both Bides. Their minds must meet as in making other agreements, 192 ACCOUNTS AND ACCOUNT STATED. and they must both assent to the account and the balance as correct. Stenton v. Jerome, 54 N. Y. (9 Sick.) 480 ; Lockwood V. Thorne, 12 N. Y. (1 Kern.) 170 ; Koclc v. Bonitz, 4 Daly (N. Y.), 117. That the stating of an account is in the nature of a new- promise. See Holmes v. i)' Camp^ 1 Johns. 34 ; Montgomery v. Ives, 17 Johns. 38 ; Hoyt v. WilMnson, 10 Pick. 31 ; White v. Campbell, 25 Mich. 463. The balance of a stated account is principal, and it cannot be re-examined to ascertain the items or their character. McClelland v. West, 70 Penn. St. 183. § 2. Rendering an account. An account rendered is an admis- sion, and prima facie evidence against the party making it, but does not estop him from showing the truth. It is still open to explanation for any omissions or mistakes. Cliampion v. Joslyn^ 44 N. Y. (5 Hand) 653 ; ScTiettler v. Smith, 34 N. Y. Supr. Ct. 17; and see Williams v. Glenny, 16 N. Y. (2 Smith) 389 ; Daniels V. Wilber, 60 111. 526; Nicholson v. Pelanne, 14 La. Ann. 508; Beehe v. Robert, 12 Wend. 413 ; Smith v. Tucker, 2 E. D. Smith (N. Y.), 193. So evidence of the reason why certain items do not appear in an account rendered is held to be immaterial. The party may show the fact that such items exist, notwithstanding their omission from his account, but is confined to his facts, and his reasons or motives for the omission are held to be of no im- portance. Champion v. Joslyn, 44 N. Y. (5 Hand) 653. § 3. Mutual agreements. The conversion of an open account into an account stated is an operation by which the parties assent to a sum as the correct balance due from one to the other ; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may ap- pear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. White V. Campbell, 25 Mich. 463. But in all cases there must be proof, in some form, of an express or implied assent to the account rendered by one party to the other, before the latter can be held to be so far concluded that he can impeach it only for fraud or mistake. Stenton v. Jerome, 54 N. Y. (9 Sick.) 480 ; LocTcwood V. Thorne, 11 N. Y. (1 Kern.) 170 ; S. C, 18 N. Y. (4 Smith) 288, 290. No account can be legally stated by persons who are not competent to make a valid contract. Holmes v. H' Camp^ 1 Johns. 34. And for this reason, an infant is not bound by an account stated, even though he expressly agrees to it. Trueman V. Hurst, 1 Term R. 40. It is not necessary that an account should be signed by the parties to make it a stated account. ACCOUNTS AND ACCOUNT STATED. 193 Bruen v. Hone, 2 Barb. 586 ; Lockwood v. T7i,orne, UN Y. (1 Kern.) 170, 173 ; Brow?i v. Yanclyke, 8 N. J. Eq. (4 Halst.) 795. So, to constitute an account stated, it is not necessary that there should be mutual or cross demands. They may be all on one side, or consist of charges and the acknowledgment of payment. The simple rendering of the items of an account between the parties, and the striking of a balance, or agreeing upon the amount due, is sufficient ; and upon such a state of fact an action on an account stated may be maintained. Kock v. Bonitz, 4 Daly (N. Y.), 117 ; Knowles v. Michel, 13 East, 249; Hutchinson V. Market Bank of Troy, 48 Barb. 302 ; Gohh v. Arundell, 26 Wis. 553. § 4. Admissious, etc. When a defendant acknowledges his in debtedness for a specific sum, being a balance of an account, the court is at libertj^ to treat it as an account stated, and give judg- ment for such balance. 3Iay v. Kloss, 44 Mo. 300. Otherwise, if the acknowledgment is qualified or conditional {Bvans v. Ver- ity, Ryan & M. 239) ; or, the amount of the indebtedness is not specified. Lane v. Hill, 18 Ad. & Ell. (N. S.) 252; Kirton v. Wood, 1 Mood & Rob. 253. So, merely giving a note for the balancejs not necessarily an admission of the correctness of an account {Morton v. Rogers, 14 Wend. 576) ; though it is held to be prima facie evidence of a settlement of accounts between the parties. Butcher v. Porter, 63 Barb. 15 ; Treadwell v. Abra- hams, 15 How. (N. Y.) 219. See Stiles v. Brown, 1 GiU. (Md.) 850. And a party signing his name to an account current is not conclusive evidence of his owing the amount therein stated. The implied admission in such case may be rebutted by compe- tent proof, as fraud, error or mistake. Miller v. Probst, Add. (Penn.) 334 ; Kirkpatrick v. Turnbull, id. 260 ; Nichols v. Alsop, 6 Conn. 447 ; Perkins v. Hart, 11 Wheat. (U. S.) 237. But pay- ment of the balance, shown by an account to be due to the party receiving it, has been held an admission of the correctness of the account, though not absolutely conclusive. Bruen v. Hone, 2 Barb. 586 ; Lockwood v. Thome, 11 N. Y. (1 Kern.) 170 ; revers- ing S. C, 24 Barb. 391. As to express admissions, sufficient to bind the party, see Thurmond v. Sanders, 21 Ark. 255 ; Owen v. Boerum, 23 Barb. 1S7. § 5. No objection made. If one party presents his account to the other, and the latter makes no objection, it may well be in- ferred tliat he is satisfied with and assents to it as correct. So, if an account be made up and transmitted by one party to the Vol. L — 25 194 ACCOUNTS AND ACCOUNT STATED. other by mail, and the latter keeps it for some considemble time without making any objection, he is held to have acquiesced in it. Stenton v. Jerome, 54 N. Y. (9 Sick.) 480. A very general statement of the rule is, that when a party indebted upon an account receives and retains it beyond such time as is reasonable under the circumstances and according to the usage of the busi- ness, for examining and returning it, without communicating any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated. Signature to the account, or express admission, is not necessary. Case v. Hotchkiss, 1 Abb. Ct. App. (N. Y.) 324 ; Townley v. Denison^ 45 Barb. 490 ; Terry v. Sickles, 13 Cal. 427 ; White v. Hampton^ 10 Iowa, 238 ; Tharp v. Tharp, 15 Vt. 105 ; Langdon v. Roane, 6 Ala. 518. This rule is held to apply to accounts between mer- chants residing in different countries {Murray v. Toland, 3 Johns. Ch. 569 ; StebMns v. Wiles, 25 Miss. 267 ; Freeland v. Hexon, 7 Cranch [U. S.], 147) ; and it also applies to an account between an attorney and his client. Case v. Hotchkiss, 1 Abb. Ct. App. (N. Y.) 324 ; S. C, 3 Keyes, 334 ; Pulliam v. Booth, 21 Ark. 420. But it is held that the rule ought not to be applied in favor of the party, as where he claims that the statute of limita- tions commenced to run from the time of rendering the account. In such case he must show some word or act marking or imply- ing that he assented to the account. White v. Campbell, 25 Mich. 463. See Randel v. Ely, 3 Brewst. (Penn.) 270. What is to be regarded as a reasonable time within which to object to an account rendered, where there is no dispute as to the facts, is matter of law. But where the proofs are contradictory, the question is one of law and fact ; and in that case may prop- erly be submitted to the jury, under the instructions of the court as to the law. Wiggins v. Burkham, 10 Wall. (U. S.) 129. See Lockwood V. Thome, 11 N. Y. (1 Kern.) 170 ; Davis v. Tiernan, 3 Miss. (2 How.) 786. An account containing an item of a loan to a third person, for which the party to whom it is rendered is not responsible, does not become conclusive as an account stated, by being retained for several months {Porter v. Lobach, 2 Bosw. [N. Y.] 188 ; Spangler v. Springer, 22 Penn. St. 454) ; nor does the rule of "account stated" apply as against a wife in favor of her hus- band. Southwick V. Soutliwick, 1 Sweeny (N. Y.), 47; S.C. affirjied, 49 N. Y. (4 Sick.) 510. It is applicable, however, to an account rendered by a land agent, if received and not objected to for ACCOUNTS AND ACCOUNT SfATED 195 many years ; such a case not being within the exception estab- lished with respect to persons holding confidential relations to each other. Philips v. Belden, 2 Edw. Ch. (N. Y.) 1. See Holmes V. Morse, 50 Me. 102. § 6. ConclusiYCness. To entitle a plaintiff to recover it has been held sufficient if he prove the account stated, and this was formerly conclusive. Bartlett v. Emery ^ 1 Term E. 42, note. But in modern times a greater latitude has prevailed, and errors which may have crept into the account, may now be shown and corrected. lb. Holmes v. i)' Camp, 1 Johns. 36 ; Wilson v. Wilson, 14 Com. B. (5 J. Scott) 626 ; Thomas'' Adm'r v. HawJceSy 8 M. & W. 140. An account stated or settled is a mere admis- sion that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is to establish, prima facie, the accuracy of the items without other proof ; and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. The force of the ad- mission, and the strength of the evidence which will be necessary to overcome it, will depend upon the circumstances of the case. An account stated, which is shown to have been examined by both parties, and expressly assented to or signed by them, would afford stronger evidence of the correctness of its items than if it merely appeared that it had been delivered to the party, or sent by mail, and acquiesced in for a suflBcient length of time to entitle it to be considered as an account stated. LocJcwood v. Thome, 18 N. Y. (4 Smith) 285, 292 ; Champion v. Joslyn, 44 N. Y. (5 Hand) 653. So, too, an account settled, that is, when the balance it exhibits has been paid or adjusted between the parties, is stronger evidence and requires more proof to overcome it than a mere account stated. But the parties are never precluded from giving evidence to impeach the account, unless the case is brought within the principle of an estoppel in pais, or of an obligatory agreement between the parties ; as for instance where, upon a settlement, mutual compromises are made. Lockwood v. Thome, 18 N. Y. (4 Smith) 285 ; Kock v. Bonitz, 4 Daly (N. Y.), 117, 120 ; and see Lockwood v. Thome, 11 N. Y. (1 Kern.) 170 ; Stenton V. Jerome, 54 N. Y. (9 Sick.) 480 ; Bucklin v. Chapin, 1 Lans. (N. Y.) 443, 447; Keaiie v. Branden, 12 La. Ann. 20 ; Jones v. Dunn, 3 Watts & S. (Penn.) 109 ; Hutchinson v. Market Bank of Troy, 48 Barb. 302. See Schettler v. Smith, 34 N. Y. Super. Ct. 17. A stated account, which is binding on the original parties, is also binding on a guarantor. Bullock v. Boyd, 2 Edw. Ch. 293 196 ACCOUNTS AND ACCOUNT STATEl Where a balance is struck by the parties, after a hearing befoi e referees has commenced, which is reported to the referees and entered by them upon their minutes, the parties are held to be concluded by it. OlarTi v. FaircMld, 22 Wend. 576. So, where an "account settled "is relied on, byway of plea or answer to a bill in equity for an account, it is conclusive, unless the plaintiflf can allege and prove some fraud or mistake. Costin v. Baxter^ 6 Ired, Eq. (N. C.) 197. And where a party stated an account, which he sent to the other by a messenger, with his check for the balance, the party receiving the check and obtaining the money thereon, was held bound, although he objected at the time, that the balance was too small. Davenport v . Wheeler, 7 Cow. 231. It is held to be no bar to an action on an account stated, that the defendant's indebtedness was for liquors sold by plaintiff on Sunday, contrary to law, if the account was not stated on Sunday. But if the sale was illegal for want of a license, the action on an account stated could not be maintained. Melclioir v. McCarty^ 31 W^is. 252 ; S. C, 11 Am. Rep. 605; see, also, Kennedy v. Broun, 13 J. Scott (N. S.), 677 ; Dunhar v. Johnson, 108 Mass. 519. § 7. Opening account. When the parties have adjusted an ac- count, struck a balance, and agreed upon the amount due, courts are exceedingly unwilling to open it again, unless there has been fraud, or it is very clear that there has been a mistake. KocTt V. Bonitz, 4 Daly, 117. For " no practice could be more danger- ous than that of opening accounts which the parties have them- selves adjusted, on suggestions supported by doubtful, or by only probable testimony." Chief-Justice Marshall, in Chap- pedelaine v. Dechenaux, 4 Cranch, 306. And see Mclntyre v. Warren, 3 Abb. Ct. App. 99 ; Wilde v. Jenkins, 4 Paige, 481. If, however, there has been anj^ mistake, omission, accident, fraud, or undue advantage, by which an account stated is in truth vitiated, and the balance incorrectly stated, equity will permit it to be opened and re-examined in toto, or as to particular items, as the allegations may warrant. Farnam v. Brooks, 9 Pick. 212 ; Roherts v. Toiten, 13 Ark. 609 ; Rembert v. Brown, 17 Ala. 667; Banlchead v. Alloioay, 6 Coldw. (Tenn.) 56 ; Chatham v. Riles, 36 Conn. 403 ; La Trohe v. Hayward, 13 Fla. 190 ; Shirks' Ap- peal, 3 Brewst. (Penn.) 119 ; Krone7iberger v. Binz, 56 Mo. 121. And it is held that when tliere has been fraud, a court of equity will open and examine accounts after any length of time, even though the person committing the fraud be dead. Bolife :r v. Wtyman, 1 McCord (S. C), 156. So usurious charges in a stated ACCOUNTS AND ACCOUNT STATED. 197 account will be corrected in equity, and relief seems open until a judgment lias been obtained, or an award made and performed. Bullock V. Boyd, Hoffm. Ch. (N. Y.) 294. An account settled by bond or release may be opened for fraud or collusion, or where the settlement was made under suspicious circumstances {Kelsey V. Eohhy, 16 Pet. 269 ; LoxeY. W7ilt&, 4 Hayw. [Tenn.] 210) ; but in such case the burden of proof is upon the coiuplainant. lb. It is said that a settled account between client and attorney, 01 between other persons standing in confidential relations to each other, will be more readily opened than any others. See Story's Eq. Plead., § 800 ; Philips v. Belden, 2 Edw. Ch. 1 ; Rein- hert V. Broion^ 17 xila. 667. But an account settled between partners will not be reopened by a court of equity in absence of proof of fraud, misrepresentation, or denial of access to the books. Shir'ks' Appeal, 8 Brewst. (Penn.) 119. In opening a settled account, the correction of errors is sometimes allowed on both sides. Floyd v. Pr tester, 8 Rich. Eq. (S. C.) 248. A stated account will not be opened, where it appears that the plaintiff has been guilty of negligence in detecting the errors he has discovered. Bruen v. Hone, 2 Barb. 586. So, after the lapse of twenty years, it is held too late to open a settlement of ac- counts, upon the ground of inad'certency, when both parties knew their rights. Hutcliins v. Hope, 7 Gill. (Md.) 119. See Gregory v. Forrester, 1 McCord (S. C), 332. And, where a party not standing in the relation of trustee, in stating his claim, omita to give his debtor a credit for a payment made, and they settle, the debtor cannot, after the lapse of six years, open the account, on the ground that he has but recently discovered the mistake. Randel v. Ely, 3 Brewst. (Penn.) 270. And see George v. John- son, 42 N. H. 456 ; Ogden v. Astor, 4 Sandf. (N. Y.) 311. A mistake in law is no ground for opening a settled account. Commissioners, etc., v. Gherky, Wright (Ohio), 493. Nor will a stated account be readily opened after the defendant's books have been casually destroyed, as by fire. Bruen v. Hone, 2 Barb. (N. Y.) 586. So after judgment and execution, and sale under a mortgage, the account will not be opened, although it appears to be irregular. Bloodgood v. Zeily, 2 Caines (N. Y.), 124. And where one of the parties goes over the account in the presence of the other, and finds a certain balance due, which is not ob- jected to by the other party, it becomes an account stated, and can only be opened on proof of fraud or mistake. Kock v. Bonitz, 4 Daly, 117. 198 ACCOUNTS AND ACCOUNT STATED. A court of equity will not open accounts and sustain claims wliicli are barred by the statute of limitations, without exercis- ing great caution. Stearns v. Page, 7 How. (U. S.) 819. And lapse of time will be allowed to protect delinquents where the transaction is old, the accounts unsettled, and the amount sought to be recovered uncertain, or when, from the death of parties, all knowledge of the true state of the accounts has passed into oblivion, and when any attempt to settle and adjust the accounts would probably result in great injustice to the defendant. Win- ston V. Street, 2 Patt. & H. (Va.) 169. See BaTcin v. Bemming, 6 Paige, 95; Dexter v. Arnold, 2 Sumn. 108 ; Atwood v. Fowler, 1 Edw. Ch. 417. An account stated, which has been acquiesced in for a num- ber of years, without objection, will not be opened (in the absence of all pretense of fraud or imposition), except upon conclusive evidence of error or mistake ; and the party who seeks to open a settlement of accounts, on the ground of mistake, assumes the burden of proving distinctly wherein the mistake consisted, and of furnishing the data, by which it may be corrected. Towsley V. Denison, 45 Barb. 490 ; Chubhuclc v. Yernam^ 42 N. Y. (3 Hand) 432; BurTce v. Isliam, 3 Alb. Law Jour. 209; S.C, 53 N.Y. (8 Sick.) 631 : Mclntyre v. Warren, 3 Abb. Ct. App. (N.Y.) 99 ; Herrick T Ames, 1 Keyes (N. Y.), 190. See Sutphen v. CusJiman, 35 111. 186 ; DaMn v. Demming, 6 Paige, 95 ; Kronenberger v. Binz, 66 Mo. 121. When fraud is proved, it will be a sufficient ground to open the whole account. Brown v. Vandyke, 8 N. J. Eq. 795 ; Bruen \ . Hone, 2 Barb. (N. Y.) 586. So it is held, that the whole account «uay be taken de novo, for gross mistake in some cases. Br anger V. QJiecalier, 4 Cal. 353. But this can only be done where sucli a mistake or error affects all the items of the transaction. lb. Generally, where errors or mistakes only are shown to exist in the account, it will not be opened, but the party will merely be permitted to surchai-ge and falsify it. Bruen v. Hone, 2 Barb. 586 ; Oomr v. Hall, 3 Harr. & J. "(Md.) 43 ; Bullock v. Boyd, 2 Edw. Ch. (N. Y.) 293 ; S. C, again^ 1 Hoffm. 294. And the mis- take or error must be distinctly alleged, lb. Accounts having been stated between the parties, without fraud or coercion, and the statements being accompanied with written agreements, showing liow far they should be binding, and for what cause they should be varied, the accounts will be opened BO far only as is provided for by the terms of such agreements. Trouy v. Haight, Hopk. Ch. (N. Y.) 239. ADULTERY. 19& CHAPTER VI. OF AN ACTION FOR ADULTERY. ARTICLE I. OF THE ACTIOX IX GENERAL. Section 1. Marriage must be prored. Adultery, at the com- mon law, is considered merely as a civil injury, for whicli tliG only remedy afforded by the courts against the adulterer is a civil action for the recovery of compensation in damages. The grounds of this action are, the injuries sustained by the husband in the alienation of his wife's affections, the destruction of his comfort in her society, and by compelling him to raise and sup- port children not his own. Wilton v. Webster, 7 Carr. & P. 198 ; SmitJi V. Masten, 15 Wend. 270. And the action may be main- tained by the injured husband, after the dissolution of a valid marriage, for debauching the wife while the coverture existed. DicTcerman v. Graves, 6 Cush. (Mass.) 308 ; Ratcliff v. Wales, 1 Hill (N. Y.), 63. But it has long been settled, that in an action for criminal con- versation, an actual marriage must be proved. Morris v. Miller, 4 Burr. 2057 ; Birt v. Barloio, 1 Doug. 170 ; Fowler v. Reed, 4 Johns. 53 ; People v. Hum'pTirey, 7 id. 314 ; Kibby v. Ruclcer, 1 Marsh. (Ky.) 391. The cohabitation of the parties as man and wife, their declaration or admissions, or the reputation of an existing marriage, or the plaintiff's acknowledgment of the woman as his wife, and holding her out as such to his friends and acquaintances, and her reception in the family as such, are not sufficient to maintain the suit. lb. Dann v. Kingdom, 1 S. C. N. Y. (T. & C.) 492. If, however, the defendant has seriously and solemnly admitted the marriage, it will be received as sufficient proof of the fact. Forney v. HallacTier, 8 Serg. &: R. (Penn.) 159 ; Rigg v. Curgenven, 2 Wils. 399. And it is suffic- ient to prove the marriage according to any form of religion, as Jews, Quakers, and the like. See Bull. N. P. 28 ; 2 Greenl. Ev., § 49. § 2. The husband must be witliout fault. To maintain the action for adultery, it is essential that the husband should present 200 ADULTERY. himself in court with clean hands ; that is, without having courted his own dishonor, or having been instrumental to his own disgrace. For, if he has consented to, or otherwise connives at, the adulterous intercourse of ^is wife with the defendant, it takes away the ground of the action. Duberly v. Gunning^ 4 Term R. 651 ; Bunnell v. Greathead, 49 Barb. 106 ; Rea v Tucker^ 51 111. 110. But the ground of the action is not removed by the mere negligence, inattention, confidence or dullness of apprehension of the husband; there must be passive acquiescence and consent, with the intention and in the expectation that guilt will follow. lb. Travis v. Barger, 24 Barb. 614, 624 ; Bromley V. Wallace^ 4 Esp. 237. The rule of law is stated to be, that the plaintiff will be entitled to recover, unless he has, in some degree, been a party to his own dishonor, either by giving his wife a general license to conduct herself as she pleased with men gen- erally, Oi. by assenting to the particular act of adultery with the defendant, or by having totally and permanently given up all the advantage to be derived from her society. Winter v. Henn^ 4 Carr. & P. 494. Where a wife is suffered to live as a prostitute with the privity of the husband, and the defendant has thereb}'' been drawn in to commit the act of which the husband complains, the action cannot, of course, be maintained. See Smith v. Allison, Bull. N. P. 27 ; Sanborn v. Neilson, 4 IN". H. 501 ; Hodges v. Windham 1 Peake, 54. § 3. Separation by agreement. As the gist of the action for adultery is the loss of the comfort and society of the plaintiff's wife, it was held to follow, that if the husband voluntarily sepa- rated himself from his wife, it could not be said that he was deprived of that comfort and society which he had himself renounced ; and that he could not, therefore, maintain the action. Weedon v. Timhrell, 5 Term E,. 357 ; Fry v. Derstler, 2 Yeates (Penn.), 278. But this doctrine is questioned, and it is held that a deed of separation may not preclude the action ; especially where such deed contains a provision for the attendance and care of the mother as it regards her children. The husband, in such a case, does not relinquish all claim to the comfort and assistance of the wife. Chambers v. Cauljleld, 6 East, 244; S. C, 2 J. P. Smith, 356. § 4. Ill treatment of wife. Evidence of the husband' s cruelty toward his wife, as turning her out of his house, refusing to maintain her, etc., previousl}' to the adulterous intercourse, is admissible in mitigation of damages, in an action for the seduc- ADULTER! . 20] tion of the wife, but it does not go in bar of such an action. Coleman v. W7ilte, 43 Ind. 429 ; Palmer v Croo^, 7 Gray, 418. § 5. Husband living in adultery. It has been ruled in some of the early English cases, that if the husband, after marriage, transgressed those rules of conduct which decency requires and affection demands from him, and in an open, notorious and undisguised manner, carried on a criminal correspondence with other women, he could not maintain an action for the seduction of his wife. Wyndhajn v. Lord Wycomhe, 4 Esp. 16 ; Sturt v. Marquis of Blandforcl, id., cited. But in a subsequent case it was held that the infidelity or misconduct of the husband could never be set up as a bar, but only in mitigation of damages. Fromley v. Wallace^ 4 Esp. 237 ; and such is now the firmly established doctrine recognized by the courts. Sanborn v. Neilson, 4 N. H. 501 ; Smith v. Masters, 15 Wend. 270 ; Bunnell v. Great- head, 49 Barb. 106 ; Shattuck v. Hammond, 46 Yt. 466 ; S. C, 14 Am. R. 631. § 6. Condonation. Cohabitation by the husband with the wife, after knowledge of her adultery, operates as a forgiveness of her wrong, but is not a bar to an action against her seducer for dam- ages. Yerholf v. Yan Eourmnlengen, 21 Iowa, 421. Such co habitation, though not proof, seems to be evidence of collusion. lb. § 7. Proof of the offense. Proofs of the offense must, in many cases, be to a great extent presumptive. The fact of adultery is inferred from circumstances that lead to it by fair inference as a necessary conclusion. Loveden v. Loveden, 2 Hagg. Con. 2. Real and direct proof of the fact is to be expected in but a few cases ; therefore, the question will be, whether there is evidence of such near, such approximate acts, that there must be a legal presumption of the adultery. See Williams v. Williams, 1 Hagg. Con. 299 ; Wood v. Wood, 4 Hagg. Ecc. 138, n. Thus, general cohabitation has been held sufficient to establish the fact of adultery. Cadogan v. Cadogan, 2 Hagg. Con. 4 ; Button V. Button, id. 6, n. So, an adulterous disposition of the parties having been proved, the offense may be inferred from their sub- sequently being found together in a bedroom, under circum- stances justifying the inference. Van Epps v. Van Epps, 6 Barb. 320 ; Soilleaux v. Soilleaux, 1 Hagg. Con. 373 ; State v. Qreen, Kirb. (Conn.) 87. See Matchin v. Matchin, 6 Barr (Penn. j, 332. But when the facts relied upon are equally capable of two interpretations, one of which is consistent with the defendant's innocence, they will not warrant a verdict against him. Ferguson Vol. L — 26 202 i^DULTERY. V Ferguson, 3 Sandf. (N. Y.) 307. See Eirhy v. The State, 3 Eumpli. (Tenn.)289 ; Homhurger v. Homburger, 46 How. (N". Y.) 346 ; A. A. C. v. T. C, 25 id. 432, 435. Neither the confessions of the wife, nor the opinions of wit- nesses concerning her fondness for the defendant are admissible in evidence against him. McYeyv. Blair,! Tnd. 590. But con- 7ersations between her and the defendant may be given in evi- dence. Winsmore v. GreenhanJc^ySf iWq^, 577. And in an action brought by a husband for criminal conversation with his wife, the latter, after a divorce from the bonds of matrimony, is a compe- tent witness for the plaintiff, to prove the charge laid. Ratcliff V. Wales, 1 Hill (N. Y.), 63 ; Dickerman v. Orams, 6 Gush. 308 ; Carpenter v. White, 46 Barb. 291. But while the coverture exists she is not a competent witness for her husband in such an action, lb. Hicks V. Bradner, 2 Abb. Ct. App. (N. Y.) 362 : S. C, 35 How. 118 ; 5 Trans. App. 239 ; and see Rivenhurgh v. Rinen' 'burgh, 47 Barb. 419. "Letters written to the wife by the defend- ant are evidence against him ; but the wife' s letters to the de- fendant are not evidence for the defendant against the husband. Bull. N. P. 28. As a general rule, the wife's letters to the hus- band are not admissible in evidence for him against the defend- ant. See Wilton v. Webster, 7 Carr. & P. 198. An exception to this rule is where the letters have been written by her during an absence from her husband, before any suspicion of her miscon- duct, and are offered as evidence of her disposition toward him. Edwards v. Crock, 4 Esp. 39 ; Trelawny v. Coleman, 1 Barn. & Aid. 30; S. C, 2 Stark. 191. So in an action of crim. con., let ters written by the wife to third 'persons before she became ac- quainted with the defendant, and in which she mentioned her husband, are admissible in evidence to show the state of her feelings. Willis v. Bernard, 8 Bing. 376 ; S. C, 5 Carr. & Payne, 341 ; 1 Moore & Scott, 584. In an action for criminal conversation with the plaintiff' s wife, at a time named within the statutory period of limitation for such actions, evidence of prior acts of adulterous intercourse, upon which the statute has run, is admissible for the purpose cf showing the intimate relations of the parties, and of corroborat- ing the evidence introduced to establish the illicit act which ia within the statute, and upon which a recovery is sought. Con- loajj V Nichols, 34 Iowa, 533 ; Duke of Norfolk v. (leriuaine, 12 How. St. Tr. 929, 945 ; Commonwealth v. Lohey, 14 Gray, 91 •, Commonwealth v. Meriam, 14 Pick. 518. It has, however, been • But see Laws N. Y. 1876, cli. 426, § 1. ADULTERY. 203 held, that the proof of acts within the period must first be ad- duced. Gardiner v. Madeira^ 2 Yeates (Penu.), 466. Contrary to the general rule of evidence as to matters of opinion, impression and belief are held competent by the ecclesiastical courts in cases of adultery Crewe v. Crewe, 3 Hagg. Ecc. 128. § 8. Damages. The damages given by the jury in a civil ac» ticn for adultery should, in general, be proportioned to the degree of injury sustained by the husband ; but the court «^ill not interfere with their estimates of damages unless the sum given is manifestly and palpably outrageous. Duherly v. Gunning, 4 Term R. 657 ; Wilford v. BerTieley, 1 Burr. 609 ; Smith v. Mas- ten, 15 Wend. 270. Circumstances of aggravation of the injury, which may be properly considered by the jury, are, the unblem- ished character and antecedent virtuous behavior of the wife; the state of domestic happiness in which the plaintiff and his wife had previously lived ; a marriage settlement, or other pro- vision for the children of the marriage ; the relationship subsist- ing between the plaintiff and the defendant ; or, circumstances at- tending the intercourse of the parties. These, and other similar topics are for the proper and sole cognizance of the jury. See Bull. N. P. 27 ; 1 Steph. K P. 24 ; Duke of Norfolk v. Ger- maine, 12 How. St. Tr. 927 ; Wilford v. Berkely, 1 Burr. 609. So it has been said that the rank and circumstances of the plain- tiff may be given in evidence by him. See 2 Stark, on Ev., part iv, 442. But this has been denied ; for the character of the Tius- hand is not in issue, except merely as far as that relation is con cerned. Norton v. Warner, 6 Conn. 172. And upon this point it has been remarked, that " it would seem that the same princi- ple which accords to the plaintiff the right to show, in aggrava- tion of damages, his rank and quality, would entitle the defend- ant to show the same in mitigation. It would be but bringing him to the test of a scale that is graduated both ways from the zero of indifference. If his rank marks plus with reference to that point, he has the benefit in due proportion ; if minus, he should, by the same rule and reason, be subjected to the result- ing disaivantage in like proportion." Barret, J., in Shattuck V. Hammond, 46 Vt. 466; S. C, 14 Am. Rep. 631. See Rea v. Tucker, 51 111. 110, which holds tliar evidence is admissible to show the condition in life and the pecuniary circumstances of the respective parties. The circumstances in extenuation, to reduce the amount of damages, will vary with every var3dng case. See Calcroft y a04 ADULTERY. Hardorougli, 4 Carr. & P. 490 ; Winter v, Henn, id. 494. The defendant may show, in mitigation of damages, the previous bad character and conduct of the wife, whether in general, or in particular instances of unchastity {Conway v. Nicliol, 34 Iowa, 583 ; Harrison v. Price, 22 Ind. 165) ; or that she made the first advances of a criminal nature toward him {Coote v. Bertz, 12 Mod. 232), and for this purpose the wife's letters to the defend- ant may be given in evidence. Elsam v. Fawcet, 2 Esp. 562. So the defendant may prove, in mitigation of damages, the plain- tiff' s criminal connection with other women at any time after marriage and before trial. ShattucTc v. Hammond, 46 Vt. 466 ; S. C, 14 Am. Rep. 631. For, if the plaintiff was in the habit of improper intimacy with other women, his sense of moral pro- priety, and a regard for chastity, could not be much offended by the loss of virtue in his wife. The guilt of the defendant is not diminished, but the plaintiff has sustained less damage. The merits of the plaintiff, but not the demerits of the defendant, are less. Both, however, are considered by the jury in forming their verdict, and all circumstances which diminish the one, or enhance the other, are proper subjects for their consideration. Savage, C. J., in Smith v. Masten, 15 Wend. 270, 273. Circum- stances which show that the plaintiff possessed no comforts of a domestic character, are proper to be given in evidence, in miti- gation of damages. The defendant cannot, with any propriety, be chargeable with destroying the plaintiff's domestic comfort, when he had never enjoyed such comfort. lb. Jones v. Thomp- son, 6 C. & P. 415 ; Winter v. Wroot, 1 M. & Rob. 404 ; Trelawny V. Coleman, 2 Stark. 191. If the wife dies, pending an action for adultery, the jury should give damages for the loss of the society of the wife from the time of the discovery of the adultery to the time of her death, and also for the shock to the feelings of the husband ; and this, although there was no suspicion of the wife's infidelity till she was on her death-bed, and the husband continued to treat her kindly up to the time of her death. Wilton v. Webster, 7 Carr. & P. 198. Id a case where the wife of the plaintiff had not been criminally conM'cted with the defendant alone, the jury were directed to award damages proportioned to so much of the plaintiff's loss of comfort, etc., as they might suppose to have been occasioned by the defendant's misconduct, and not to give damages for the whole of the injury that the plaintiff had sustained. Greg son v. Thedker, 1 Campb. 415, n. ADVANCEMENT. 2n& CHAPTER yil. ADVANCEMENT. ARTICLE I. GEN^EKAL KULES RELATIN^G TO ADVANCEMENT. Section 1. "What is. An advancement, properly speaking, is a gift by a parent to his child, by anticipation, in whole or in part, of what it is supposed the child would be entitled to on the death of the parent. Cawthon v. Gojpijedge^ 1 Swan. (Tenn.) 487 ; and see Osgood v. Breed, 17 Mass. 358 ; Christy' s Appeal, 1 Grant's Cas. (Penn.) 369 ; Grattan v. Grattan, 18 111. 167 ; Chase V. Ewing, 51 Barb. 597, 612; TimdV s Appeal, 1 Harris (Penn.), 575 ; EshlemarCs Appeal, 74 Penn. St. 42. Equality is equity amongst heirs, and the doctrine of advancement has, for its object, the furtherance of this end. Mlllef s Appeal, 31 Penn. St. 337. It is said that an advancement is to be treated as " purely an irrevocable gift." lb. HigM s Appeal^ 21 id. 283 ; Crosby v. Covington, 24 Miss. 619 ; Grey v. Grey, 22 Ala. 233 ; OBrieli v. Shiel, 7 Ir. R. Eq. 255. But, although it cannot be doubted that every advancement is a gift, it is also true that there may be gifts which are not advancements. Sanford v. Sanford, 61 Barb. 293, 299 ; S. C, 5 Lans. 486. And the question whether a volun- tary transfer of property by a father to a child is to be treated as an absolute gift, or as an advancement upon the child's por- tion of the father' s estate, is one of intention. The intention of the donor, as indicated by all the circumstances attending the gift, decides its effect. Harris^ Appeal, 2 Grant's Cas. (Penn.) 304 ; Meelcer v. Meeker, 16 Conn. 383 ; Johnson v. Belden, 20 id. 322 ; Weaver'' s Appeal, 63 Penn. St. 309 ; Younghlood v. Norton, 1 Strobh. Eq. (S. C.) 122; Law son' s Appeal, 23 Penn. St. 85; McCaw V. Blewit, 2 McCord's Ch. (S. C.) 103 ; and a gift made absolutely, cannot by subsequent acts or declarations be changed to an advancement. Lawson's Appeal, 23 Penn. St. 85. See SJierwood v. Smith, 23 Conn. 516. A convej^ance to a child either directly or by a payment of the purchase-money for land, and having the deed made to the child, is prima facie an advancement. Weaver's Appeal, 63 Penn. St 206 ADVANCEMENT. 309. But to constitute an advancement, it is not requisite thai the provision should take eifect in the father's life-time. If, by deed, he gives property to one of his children, to be possessed and enjoyed after his death, and not before, it is an advancement. HooTi V. Hook, 13 B. Monr. (Ky.) 526. Necessary outfit for a plantation, furnished to a child on his commencing life for him- self, has begn held an advancement. Shiver v. Brock, 2 Jones (N. C.),137. See Sanford v. Sanford, 61 Barb. 294. And where a gift was made to the husband during coverture, and a cancel- lation of bonds of the husband was made, for the purpose of advancing his wife, the child of the obligee, they were held to be advancements on behalf of the wife. Bridgers v. Hutcliins, 11 Ired. (N. C.) 68 ; and see DiUoe v. Cluney, 22 Ohio St. 436. So the gift of a life-estate may be an advancement. Cawthon v. Coppedge, 1 Swan. (Tenn.) 487. There is generall}^ to be found in the statute laws of the several States a provision relative to real and personal estates, concern- ing an advancement to a child, and the statutes of the particular State should be examined. § 2. What is not an advancement. An advancement creates no debt to the person making it, and in all its features, and in its very nature, is distinguishable from a debt or indebtedness. Chase V. Ewing, 51 Barb. 597; Luqueef s Estate, 1 Tuck. (N. Y.) 236. And where money is lent or paid by a father to or for a son, at the request of the latter, and an account is stated by the father and interest charged, such loan or payment is not an advance- ment, but constitutes an indebtedness. Harris^ Appeal, 2 Grant's Cas. (Penn.) 304 ; and see Denman v. Mc Mahan, 87 Ind. 241. So money charged by a parent against a child, in the ordinary form of account-bookSj is not to be treated as an advancement. AshleiJ s Case, 4 Pick. 21 ; see, also. Proctor v. Neioliall, 17 Mass. 93; Osgood v. Breed, id. 359; Fellows v. Little, AQ N. H. 27; Vaden v. Hance, 1 Head (Tenn.), 300. And when a father is in- debted to his children-, and gives them property or money at their maturity or marriage, the presumption is that this is a payment of the debt, and not an advancement. Hagler v. McComhs, 66 N. C. 345. It is held, however, that a testator has power to con vert the indebtedness of his children into advancements, by will. Green v. Howell, 6 Watts & S. (Penn.) 203 ; but see Dewee''s Estate. 3 Brewst. (Penn.) 314 ; S. C, 7 Phil. 498. Trifling gifts ought not to be charged as advancements Mitchell V. Mitchell, 8 Ala. 414 ; 3Ieadows v. Meadoios, 11 Ired ADVANCEMENT. 207 L. (N C.) 148 ; San ford v. Sanford, 61 Barb. 293; 5 Lans. 486. So a gift for the purpose of pleasure or amusement, merely, as of a saddle horse, or a buggy, is not considered an advancement. Mc- Caw V. Blewli, 2 McCord's Eq. Ch. (S.C), 90 ; Iso7i v.Ison, 5 Rich. Eq. (S. C.) 15. But the gift of a stallion to be employed as a foal- getter and for profit, is an advancement. lb. A gift to a grand- child is deemed to be a gift absolute, rather than an advancement. Shiver v. Broc/c, 2 Jones (N. C), 137. See Tliomas v. Capps, o Bush (Ky.), 273. And, as a general rule, money expended in the maintenance and education of a child is not to be deemed an advancement. Riddle's Estate, 19 Penn. St. 431 ; Mitchell v. Mitchell., 8 Ala. 414. See Johnson v. Belden, 20 Conn. 326 ; Cooper V. Wray, 3 Strobh. Eq. (S. C.) 185. But if the intention of the parent appears to have been to make an advancement, the expenditure will be so treated. lb. MiUefs Appeal, 40 Penn. St. 67. § 3. In what made. An advancement may be made in money, in personal property, or in real estate. Advancements in per- sonal property may be made by the delivery thereof. See Autrey V. Autrey, 37 Ala. 614 ; McCaw v. Bleioit, 2 McCord's Ch. (S. C.) 90, 103 ; Shiver v. Brock, 2 Jones' Eq. (N. C.) 137. And in real estate by conveyance, '^qq Butch'' s Appeal, 51 Penn. St. 461 ; Brown v. Burke, 22 Ga. 574 ; Temper v. Barton, 18 Ohio, 418 ; Hatch V. Straight, 3 Conn. 31. Under the law of New Jersey, it is held that an advancement in money, made by a father in hia life-time, to one of his sons, cannot have any effect upon the share of the real estate of the father, which, at his death, de- scends to the son. Only advancements or settlements in land can have such effect, Haviens v. Thompson, 23 N. J. Eq. 321. § 4. To whom made. Generally, an advancement is confined to the child of the parenj:. See 4 Kent's Com. 419; Shiver v. Brock, 2 Jones (N. C), 137 ; Skinner v. Wynne, id. 41. But, by statute in some of the States, as Maine, Vermont, Massachu- setts and Kentucky, provision, as to advancements is made to apply equally to grandchildren. See Barber v. Taylof s Heirs, 9 Dana (Ky.), 85 ; Porter v. Porter, 51 Me. 376. See, also, Sayle& V. Baker, 5 R. I. 457; Laio v. Smith, 2 id. 244; McLure v. Steele, 14 Rich. Eq. (S. C.) 105. See post, § 7. § 5. From whom. That an advancement, properly speaking, can be made only by a parent, see Cawthon v. Coppedge, 1 Swan. (Tenn.) 487 ; Osgood v. Breed, 17 Mass. 358 ; Chase v. Ewing 51 Barb. 597. See post, § 7. 208 ADVANCEMENT. § 6. Talue of. It is the general rule, in settling the rights of parties interested in an estate, that advancements are to be esti- mated at their value loTieii they wer-e given, or when the grantees came into possession of them ; and not at the time of the testa- tor's death, or at that of the settlement. Jackson v. Jackson, 28 Miss. 674 ; Grattan v. Gratian, 18 111. 167 ; Burton v. Dickinson^ 3 Yerg. (Tenn.) 112; Hook v. Hook, 13 B. Monr. (Ky.) 526; Clark V. Wilson, 27 Md. 693. Though in some cases it is held that advancements may be estimated according to their value at the death of the testator. Thomas v. Gage, 1 Harp. Ch. (S. C.) 197 ; Millefs Appeal, 31 Penn. St. 337. § 7. Presumptions. Where a man purchases land in the name of another, and pays the consideration money, it is stated to be a presumption of law that the purchase is intended for the bene- fit of the purchaser, and that the conveyance is taken in trust for him. See Jackson v. Moore, 6 Cow. 706 ; Steere v. Steere, 5 Johns. Ch. 1 ; 4 Kent's Com. 30.5, 306. If, however, the convey- ance is taken in the name of a person for whom the purchaser is under an obligation to provide, the purchase will be deemed, prima facie, 2i provision ov advancement, so as to rebut the pro- vision of a resulting trust. Thus, the general rule of equity is, that if a father makes a purchase in the name of a son, even though illegitimate, it will not be deemed a resulting trust, but an advancement. Page v. Page, 8 N. H. 187. And see Stanley V. Brannon, 6 Blackf. (Ind.) 193 ; Welton v. Divine, 20 Barb. 9 ; Partridge v. Havens, 10 Paige, 618 ; Brown v. Burk, 22 Ga. 674; Butler v. Merchants'' Ins. Co., 14 Ala. 777; Dudley v. Bos- worth, 10 Humph. (Tenn.) 9 ; Jackson v. Matsdorf, 11 Johns. 91 ; Dutches Appeal, 57 Penn. St. 461. So it seems that when a parent conveys land to his child, without asking or receiving any consideration therefor, the presumption is that it is an advance- ment to the child, though the deed recites a money consideration, and contains an acknowledgment of the payment of it. Sanford V. Sanford, 61 Barb. 293 ; S. C, 5 Lans. 486. And where a hus- band voluntarily conveys real estate to his wife, the presumption is, that no trust arises in his favor, but that the conveyance is intended as a provision or advancement. McCaw v. Burk, 31 Ind. 56 ; Spring v. Hight, 22 Me. 408 ; Astreen v. Flanagan, 3 Edw. Ch. 279 ; Whitten v. Whitten, 3 Cush. 194. See Renaker v. Lafferty, 5 Bush (Ky.), 88. The doctrine under consideration has been held applicable to purchases made by a mother. Mur- phy V. Nathans, 46 Penn. St. 508. And see Smith v. Smith, 21 ADVANCEMENT. 209 Ala. 76 ; Dennison v. Goehring, 7 Penn. St. 182, n ; Partridge v. Haviens^ 10 Paige, 618 ; Creed v. Lancaster Bank, 1 Ohio St. 1. But see, contra, Re Be Yisme, 2 De G., J. & Sm. 17. Where securities are taken in the name of a child, the pre- sumption is, that it is intended as an advancement {Riker v. Kidder, 10 Yes. 366; S. C, 2 Mad. 101) ; and so of securities taken by a husband in the name of his wife. Whitten v. Whitten, 3 Cush. 194. And, in general, where a gift of money or propeily is made to a child or heir, by a person who afterward dies intes- tate, the presumption is, that an advancement was intended. Hollister v. Attmore, 5 Jones' Eq. (N. C.) 373 ; Grattan v. Gr at- tain, 18 111. 167 ; Dillman v. Qox, 23 Ind. 440 ; Autrey v. Autrey, 1 Ala. Sel. Cas. 542 ; Mitphell v. Mitchell, 8 id. 414. And see ^Yeaxlef s Appeal, 63 Penn. St. 309. So, where the debt of a child is paid by the father, in the absence of proof to the contrary, such payment will be presumed by the law to be an advance- ment. Johnson v Hoyle, 3 Head (Tenn.), 5Q. And where it is shown that it was at one time the intention of a decedent to charge his children with certain advancements, the intent is pre- sumed to continue to exist, until the contrary be shown. Oiler V. BonebraJce, 65 Penn. St. 338. The presumption of advancement has been held to extend to a grandchild, the father being dead {Ehrand v. Dancei , Ch. Ca. 26) ; and to a wife's nephew {Currant v. Jago, 1 Coll. Ch. Ca. 261) ; but not an illegitimate grandchild {Tucker v. Burrow, 2 H. & M. 515), or to a kept woman. Rider v. Kidder, 10 Ves. 360. § 8. Parol evidence. Parol evidence as to the relations and the acts of the parties is admissible to show an advancement. Paries V. Parks, 19 Md. 823. See Parker v. McGluer, 3 Abb. Ct. App. (N. y.) 454 ; 1 Trans. App. 240 ; 3 Keyes, 318 ; 36 How. 301 ; 5 Abb. (N. S.) 97 ; and an advancement is sufficiently established by a mere preponderance of testimony. Middleton v. Middleton, 31 Iowa, 151. So the presumption of advancement is one that may be rebutted in every case by parol evidence. Tremper v. Barton, 18 Ohio, 418 ; Jackson v. Matsdorff, 11 Johns. 91; Bill- man V. Cox, 23 Ind. 440 ; Smith v. Smith, 21 Ala. 761 ; Woolery v. Woolery, 29 Ind. 249. Thus, where a parent purchases land with his own means, in the name of his infant child, it has gen- erally been considered an advancement. But the question is one of intention, each case to be determined by the reasonable pre- sumption arising from all the facts and circumstances ccainected Vol. I. — 27 210 ADVANCEMENT. with it. ^To meet and repel the presumption by proof of circum- stances showing that an advancement was not intended, is always competent. And when fraud is established, that presumption is effectually repelled. Bay v. CooJce, 31 111. 336. And see Brown Y. BurTce, 22 Ga. 574 ; Hodgson v. Macy, 8 Ind. 121 ; Tremper v Barton, 18 Ohio, 418 ; Newell v. Neioell, 13 Vt. 24. The same is 'true in the case of a husband purchasing land in the name »f his wife. Wilson v. Beaucliamp, 44 Miss. 55Q\ McCaw v. BurTc, 31 Ind. 56. So in the case of a gift of money or personal property, the presumption of an advancement can be rebutted by parol evidence of the donor's declarations at the time of the gift, or by the donee's admissions afterward, or by proof of facts and circumstances from which the intention may be inferred. Cecil V. Cecil, 20 Md. 153 ; Dillman v. Cox, 23 Ind. 440 ; Smith v. Smith, 21 Ala. 761 ; Christy'' s Appeal, 1 Grant's Cas. (Penn.) 369 ; Merrill v. Rhodes, 37 Ala. 449 ; Johnson v. Balden, 20 Conn. 322 ; Autrey v. Autrey, 37 Ala. 614. But parol evidence of declarations by a father, made after the delivery of a deed to a child, explanatory of his intention in executing it, is not admis- sible to repel a presumption of advancement. Hatch v. Straight, 3 Conn. 31; Bulkeley v. Noble, 2 Pick. 337. And declarations of Intention to treat an indebtedness as an advancement has been held insufficient to destroy the debt. Arnold v, Barrow, 2 Patt. & H. (Ya.) 1 ; YundVs Appeal, 13 Penn. St. 575. No particular form of words is required to constitute an ad- vancement. If they show that an advancement was intended, it is sufficient. Bulkeley v. Noble, 2 Pick. 337. But courts of equity, it is said, will not aid a defectively executed advance- ment. Williams v. Mears, 2 Disney (Ohio), 604. § 9. Hotchpot. By the term hotchpot, as applied in modern law, is to be understood, the throwing of the amount of an ad- vancement made to a particular child in real or personal estate, into the common stock, for the purpose of a more equal division, or of equalizing the shares of all the children. See 4 Kent's Com. 419 ; 2 Bl. Com. 616, 517 ; 2 Burr. Diet. 32. In Louisiana, where the civil law prevails, this return of property to the mass of the succession is termed collation, and it takes place unless the ad- vancement was declared not to be subject to the collation. See Destrehan v. Destrehan, 16 Mart. 557. As a general thing, the subject now under consideration will be found regulated by statute tc a great extent, and a few well-recognized principles only will be here stated. Advancements made by an intestate to any ADVAINrCEME>JT. 211 of his children are never brought into hotchpot for the benefit cf his widow. Millef s Estate, 2 Brewst. (Penn.) 355 ; Logan v. Logan, 13 Ala. 653 ; Beavors v. Winn, 9 Ga. 189 ; KircudbrigJit V. KircudbrigJit, 8 Ves. 64 ; Jackson v. Jackson, 28 Miss. 674. The sole view is equality as amongst the children. lb. But, by statute in North Carolina, advancements are to be brought into a distribution for the beneht of the widow. Davis v. Duke, 1 Taylor, 213. It is believed to be the general rule on the subject, that if a child refuses to bring his advancement into hotclipot, he thereby relinquishes all interest in the estate as a distributee. Taylor v. Reese, 4 Ala. 121 ; Grattan v Grattan, 18 111. 167. See Phillips V. McLaughlin, 26 Miss. 592 ; Andrews^. Hall, 15 Ala. 85. But the party advanced does not relinqnish his title to the advancement by bringing it into hotchpot. It is brought in merely to see whether it exceeds or falls short of an equal share. Jackson v. Jackson, 28 Miss. 674. A legacy will not be brought into hotchpot in any case. Snelgrove v. Snelgrove, 4 Desau. (S. C.) 274, 291. So neither rents nor profits of land, given as an advancement, ought to be brought into hotchpot. But it has been held, that if a father permits a cliild to rent out his land, and receive the rents to his own use, such rents shall be brought into hotchpot as an advancement of personalty. Williams v. Stonestreet, 3 Rand. (Ya.) 559. The doctrine of bringing advancements into hotchpot applies only in cases of entire intestacy. Snelgrove v. Snelgrove, 4 De- sau. (S. C.) 274; Richmond v. Vanhook, 3 Ired. Eq.' (N. C.) 581; NewilVs Oase,l Browne (Penn.), 311 ; Newman v. Wilbourne, 1 Hill's Ch. (S. C.) 10; Brewton v. Brewton, 30 Ga. 416. And where a will directs that the whole property of the testator be "disposed of as the law directs," it is deemed a disposition of the estate, and advancements will not be required to be brought into hotchpot as in case of intestacy. Brown v. Brown, 2 Ired. Eq. (N. C.) 309. See Black v. Whitall, 9 N. J. Eq. 572; Thompson v. Carmichael, 3 Sandf Ch. (N. Y.) 120. If a person gives all his property to his children by will, and afterward ac- quires real estate, and has a posthumous child, the devisees must bring the devised land into hotchpot, in order to entitle themselves to a share of such estate. Yance v. Hiding, 2 Yerg. (Tenn.) 135. Under the law of New York it is held, that in no case can a child, born after the making of a will by his father, recover of any brother or sister, born before the will was made, any portion of any advancement his father made in his life-time to 212 ADVANCEMENT. such brother or sister. Sanford v. Sanford 61 Barb. 293, 298 , S. C, 5 Lans. 486. See, also, Gordon v. BarTct lew, 6 N. J. Law (2 Halst.) 94, in which it is held, that a child who has received an advancement cannot be required to pay any thing on account of it to the other children. § 10. Failure of. There will be no failure of an advancement on account of the parent's indebtedness at the time of making it, provided he has property remaining clearly and abundantly sufficient to satisfy all subsisting debts. Miller v. Wilson, 15 Ohio, 108. So, the insolvency of the personal estate of ancestor constitutes, in equity, no objection to bringing an advancement of personalty into liotchpot with real estate, or the proceeds of real estate. Young'' s Estate, ^ Mdi. Cli. 461. An advancement is not affected by lapse of time or limitation. It operates by a legal abstraction of that much from the child's share in the par- ent's life- time; hence, it is not controlled by the same defenses, such as infancy, limitation, etc., as prevent the recovery of debts. Hughes' Apjpeal, 57 Penn. St. 179. § 11. Interest on. It is the general rule of law, in the distri- bution of estates, that advancements shall not bear interest, nor is increase to be charged to the party to whom the advancement was made. Miller'' s Appeal, 31 Penn. St. 337; Nelson v. Wyan, 21 Mo. 347; Hudson v. Hudson, 3 Rand. (Va.) 117; Osgood v. Breed, 17 Mass. 355; TowlesY. Bountree, 19 Fla. 299; Harris v. Allen, 18 Ga. 177; Krehs v. Krehs, 35 Ala. 293. ChUdren last paid are, however, entitled to interest from the time when the other children received their shares. Yundfs Appeal, 13 Penn. St. 575. And see MoDougald v. King, 1 Bailey's CI (S. C.) 164 AGENCY. 213 CHAPTER VIII. AGENCY. TITLE I. OF THE GENERAL PKINCIPLES RELATING TO PRINCIPAL AND AGENT. ARTICLE I. OF THE NATURE OF Aif AGEXCY. Section 1. In generaL So extensive and so varied are the wants of business, in a civilized and commercial society, that individuals are not able to transact all their atfairs in person, and, therefore, they are compelled to employ others to assist them. The employer is the principal, and the employed the agent. Every person of full age, who is not under some legal disability, is invested by the law with a general authority to dispose of his own property, to enter into contracts, and to perform acts which relate to or concern his personal rights, interests, duties and obli- gations. The law does not, as a general rule, require a party to act in proper person ; he may do most acts by the aid of other persons, to whom he may choose to delegate his authority, either generally or specially, for that purpose. But, as exceptional instances, a man cannot make a valid will, or a binding contract of marriage, by or through a discretionary agent. In th^ exten- sive intercourse of the present day, the exigencies of Irade and commerce, the pressure of professional, official, and other pur- suits, the temporary existence of personal illness or infirmity, the necessity of transacting business at the same time in various and remote places, and the importance of securing accuracy, skill, ability and speed in the accomplishment of the great concerns of human life, must require the assistance and labors of other persons, in addition to the immediate superintendence of the party whose rights and interests are to be affected by the results. The general maxims of the law, upon this subject, are "what- ever a man sul juris may do of himself, he may do by another ; " and, as a correlative, whatever is done by another is deemed to be done by the party himself. 214 AGENCY. § 2. Who may be a principal. The general rule is, that every person of full age, of sound mind, and not under a legal disa- bility, is capable of becoming either a principal or an agent. This general rule will prevent several classes of persons from becoming principals, and, therefore, infants, married vs^omen, idiots, lunatics, and other persons not sui juris, are either wholly or partially incapable of appointing an agent. It has been said that an infant may authorize another person to do any* act which is for his benefit ; but he cannot authorize him to do an act which is to his prejudice. Story on Agency, § 6 ; Hurdy v. Waters, 38 Me. 450; WMtney v. DutcJi, 14 Mass. 463; Hastings v. DollarMde, 24 Cal. 195. But the authorities gener- ally hold, that an infant is legally incapable of appointing an agent. Trueblood v. Trueblood, 8 Ind. 196 ; Lawrence v. McArter, 10 Ohio, 37, 42 ; Bennet v. Bams, 6 Cow. 393 ; Wa'ples v. Bast- ings, 3 Harr. 403. See 1 Am. Lead. Cas. 304-306, 5th ed. There are cases which hold that married women are not capable in some cases of appointing an agent or attorney. But, at the present day, the tendency is to extend the powers and rights, as well as the duties and liabilities of married women. In some of the States a married woman is regarded in the same light as an unmarried female, so far as the rights of property are concerned; and she may become the owner of property by descent, devise, gift, or purchase, and may deal generally with it as her own. And, in such cases, she may employ another to act for her in relation to her property, even by appointing her husband as her agent. Knapp v. 8mii?i, 27 N. Y. (13 Smith) 277 ; Woodworth v. Sweet, 51 N. Y. (6 Sick.) 8; Howell v. Klein, U Ind. 291; McLaren v. Hall, 26 Iowa, 297. Before the abolition of slavery, a master might have employed his slave as an agent. The Oooer- nor V. Daily, 14 Ala. 469 ; Cfiastain v. Bowman, 1 Hill (S. C), 270. § 3. Who may be an agent. Inasmuch as the law regards the acts of an agent as the acts of his principal, there are few per- sons who may not act as agents for a competent principal, even though they may not be competent to act for themselves. And, therefore, infants, married women, persons attainted, outlawed or excommunicated, villeins, slaves, and aliens, may act as agents for others. A wife may act as the agent for her husband. Hopkins V. MolUneux, 4 Wend. 465 ; Edgerton v. Tliomas, 9 N. Y. (5 Seld.) 40 ; Marselis v. Seaman, 21 Barb. 319 ; Pickering v. Pick- ering^ 6 N. H. 124 ; Felker v Emerson, 16 Vt. 653 ; MacKinley AGENCY. 215 r. McGregor^ 3 Whart. 369 ; Singleton v. Mann, 3 Mo. 465; Can- trell V. Cohoell, 3 Head (Tenn.), 471 ; Lang v. Waters, 47 Ala. 624. So a husband maj^ act as the agent of Ms wife. Ready v. Bragg, 1 Head (Tenn.), 511 ; Knapp v. Smith, 27N.Y. (13 Smith) 277 ; Buckley v. Wells, 33 N. Y. (6 Tiff.) 518. During the existence of a war between governments or States, no agent can be appointed by a citizen of one government or State to act in the territory of the other; and the appointment by a citizen of Georgia, during the rebellion, of an agent in New York, was held unlawful and void. United States v. Grossmayer, 9 Wall. 72. See Hubhard v. Matthews, 54 N. Y. (9 Sick.) 43'; S. C..13 xlra. Rep. 562. An agent who was appointed before the war is not within the rule, so as to prevent him from collecting money for his principal. lb. Robinson v. International Life Ass. Co., 42 N. Y. (3 Hand) 54 ; S. C, 1 Am. Rep. 490 ; Manhattan Life Lis. Co. V. Warwiclc, 20 Gratt. 614 ; S. C, 3 Am. Rep. 218 ; Ward V. Smith, 7 Wall. 447. Though it has been held that war revokes an agent's authority. Howell v. Gordon, 40 Gn. 302 ; Conley v. Burson, 1 Heisk. (Tenn.) 145. Although a principal may, in general, delegate to another the power to do what he himself may do, there are exceptions to this general rule. The appointment of an agent to do an illegal act is entirely void. State v. Matthis, 1 Hill (S. C), 37. So, although the act to be done may be legal, it may be of such a confidential nature that the power to exercise it cannot be dele- gated. Ante, 213, § 1. A member of a partnership cannot ap- point an agent to do all the acts which such partner might do, unless with the consent of the other partners. An artist or a professional man cannot substitute an agent to act in his place, without the consent of the employer. § 4. An agent cannot delegate his authority. It is a maxim of law that a delegated authority cannot be re-delegated ; or, in other words, one agent cannot lawfully nominate or appoint another to perform the subject-matter of his agency. Broom's Leg. Max. 839. In many cases an agent is selected on account of his skill, experience, or integrity, or for some personal quality, and where this is the case, there is a confidence or trust on the part of the employer, which cannot be betrayed or disappointed by the agent in the selection by him of some third party to supply hia place. Schmaling v. Thomlinson, 6 Taunt. 147 ; McCormich v. Bush, 38 Tex. 314 ; Lewis v. Ligersoll, 3 Abb. Ct. App. 55 ; S, 216 AGENCT. C, 1 Keyes, 347 ; Barret v. Rliem, 6 Bush (Ky.), 466 ; Lyon v. Burgoyne, IR B. Monr. 400 ; Loomis v. 8impso7i, 13 Iowa, 532 ; Bissell V. Roden, 34 Miss. 63. There are exceptions to tliis general rule, and there may be cases where an authority to substitute may be implied ; as where it is indispensable by the laws, in order to accomplish the end ; or it is the usual custom of trade ; or it is understood by the parties to be the mode in which the particular business would or might be done ; or where from the nature of the agency a sub- agent is necessary. Laussatt v. Lippinott, 6 Serg. & R. 386 ; Johnson v. Cunningliam, 1 Ala. (N. S.) 249 ; Dorchester Bank V. New England BanTc, 1 Cush. (Mass.) 177. § 5. Of a general or a special agency. Although a party who is capable of doing an act himself may do it by another as at- torney or agent, yet there are cases in which the act must be done by an agent or attorney ; as where the principal is a corpo- ration, or mere artificial being, which cannot act except through an agent or attorney. An agency may be general or special. The distinction between a general and a special agent is that the former, having a wide scope both of duty and authority, represents his principal in all matters within the ordinary limits of the principal's business, and this may be in one or more places ; the latter is one whose authority is definitely limited, and whose duty is specified. Cruzany. 8mith, 41 Ind. 288. A person who is authorized by his principal to execute all deeds, sign all contracts, or purchase all goods required in a particular trade, business, or employ- ment, is a general agent in that trade, business, or employment. But a person who is authorized by his principal to execute a particular deed, or to sign a particular contract, or to purchase a particular parcel of goods, is a special agent. A person who is not a general agent in the proper sense of that term may still have a general authority in regard to a particular object or tiling ; as, to buy or sell a particular parcel of goods, or to negotiate a particular note or bill ; since his agency is not limited in the purchase or sale of such goods, or the negotiating of such note or bill, or to any particular mode of doing it. Whitehead v. Tuckett, 16 East, 408 ; Anderson v. Coonley, 21 Wend. 279 ; Nelson v. Hudson River R. R. Co., 48 N. Y. (3 Sick.) 498, 509 ; Shelton v. Merchants' Dispatch Trans. Co., 59 N. Y. (14 Sick.) 258. AGENCY. 217 ARTICLE II OF THE DIFFEREXT KINDS OF AGEXTS. Section 1. In general. It is not practicable to specify all the kinds of business or transactions in which agents may be em- ployed, or to enumerate the kinds or classes of agents in detail. And, since this work will contain titles which will explain the rights, duties and liabilities resulting from the existence of agen- cies, it will only be necessary in this place to name some of the more general classes of agents. Among these are attorneys at law, attorneys in fact, auctioneers, brokers, factors, consignees, supercargoes, ships' husbands, masters of ships, and partners. In many cases there is but a single principal, and a single agent ; but there may be two or more :;rincipals, as well as two or more agents. And in relation to piiacipals, the general rule is, that if each has a several and a distinct interest, no one of them can ordinarily appoint an agent for all of the others, with- out the assent and concurrence of all of them. Thus, where two persons, by a joint instrument, consign two parcels of goods to a consignee for sale, where one of the parties owns one parcel of the goods, and the other party owns the other parcel ; in such a case, no joint interest or joint agency would be created ; but the consignee would become the :5everal factor of each owner ; and the owner of one parcel could not give instructions to the consignee which would be binding upon both, unless by the express or implied consent of the other. But, unless the consignee knows the facts, he will be at liberty to treat it as a joint consignment for the benefit of both, in which case the in- structions of either, like the instructions of a partner, will be binding upon the other, and both will become jointly liable to him for his commissions and disbursements. So where different per- sons have separate and distinct, although undivided, interests in the same personal property, one of them cannot sell the interest of the other. Wliite v. Oshorn, 21 Wend. 72 ; Byckman v. Yali- ente, 42 N. Y. (3 Hand) 549 ; Tyler v. Taylor, 8 Barb. 585 ; Ward v. Gaunt, 6 Duer, 257. And what he coulo, not lawfully do himself, he could not authorize an agent to do A different rule prevails in the cases of partnerships, for there each partner acts for himself, as well as agent for the others. See Partnership. Vol. I. — 28 218 AGENCY. Sometimes two or more agents are appointed ; and the general common-law rule is, that when an authority is conferred, by the principal, upon two or more persons to do a mere private act, such act will not bind the principal unless all the persons join in doing it. Sinclair v. Jackson, 8 Cow, 543 ; Heard v. March, 12 Cush. (Mass.) 580 ; Low v. Perkins, 10 Vt. 532 ; Rollins v. Phelps, 5 Minn. 463 ; Union Bank v. Beirne, 1 Gratt. 226. But the authority may be given in such terms as to authorize a several execution ; or an execution by a majority or other num- ber less than the whole. Hawley v. Keeler, 53 IS. Y. (8 Sick.) 114 ; 62 Barb. 231 ; Cedar Rapids, etc., R. R. Co. v. Stewart, 25 Iowa, 115 ; French v. Price, 24 Pick. 13 ; Guthrie v. Armstrong^ 5B. &. iUd. 628. Where two persons are appointed agents jointly to take charge of the business of their principal for a specified term, if one of them becomes incapacitated, the business cannot be performed by the other alone, without the consent of the principal, who has a right to discontinue the agency. Salisbury v. Brisbane, 61 N. Y. (16 Sick.) 617. ARTICLE III. OF THE APPOINTMENT OF AGENTS. Section 1. How appointed. An agent may be appointed by a written sealed instrument, an unsealed written instrument, or by a verbal authority without writing. This authority may be con; ferred before any act is done by the agent, or it may be estab- lished by a ratification of acts previously done by one who assumed to be an agent, although he had no authority as agent at the time the act was done. It will be sufiicient tliat there ia satisfactory evidence of the fact that the principal employed the agent, and that the agent undertook the trust. § 2. By deed or sealed instrument. There are a few exceptions to the general rule just mentioned. One of them is, that when- ever any act of agency is required to be done in the name of the principal, under seal, the authority to the agent or attorney to do th(? act must generally be conferred by an instrument under seal. Worrall v. Munri, 5 N.Y. (I Seld.j 229 ; Cooper v. Rankin, 5 Binn. 613 ; McNaughton v. Partridge, 11 Ohio, 223; Cummins v. CaS' silly, 5 B. Monr. (Ky.) 75; Ilihblewhite v. McMorine, 6 Mees. e State, Riley, 81; S. C, 3 Hill (S. C), 78. In such cases, if the agent acts in accordance with legal usa- ges he will not be liable for negligence. Carter v. Cunningham, 7 Mete. 491 ; Parke v. Lowrie, 6 Watts & Serg. 607; Wallace v. Bradshaw, 6 Dana, 382; McMasters v. Pennsylvania R. R. Co., 69 Penn. St. 374; S. C, 8 Am. Rep. 264. The instances, in which an agent will be liable for neglecting to act according to the usages of the profession, trade or busi- ness in which he is employed, are numerous and varied. He must possess ordinary skill, and use reasonable diligence {ante, 240) : and a knowledge of the established and well-known usa- ges of the place or business in which he is engaged is but a resonable requirement for the protection of the principal's rights. There is no class of agents, and no kind of service which an agent can render, to which this rule does not apply. § 10. Of sub-agents or substitutes. It is an established general rule, that an agent cannot delegate his authority, ante, 215. But there are cases in which he may employ another to aid him, or to perform an act which is merely mechanical or instrumental, and in subordination to the direction of the agent. Commercial Bank of Lake Erie v. Norton, 1 Hill, 501 ; Tt illiams v. Woods, 16 Md. 220. 344 AGENCY. In addition to this, it is not unusual for etters of avtorney, or other instruments, to provide for the employment of sub-agents or substitutes. In such cases, the original agent or attorney is not liable for the acts or the omissions of such sub-agent or sub- stitute, as he may appoint or employ, unless in making such appointment he is guilty of fraud, or of gross negligence, or improperly co-operates in such acts or omissions by the sub- agent. Besides this express authority, there are many other cases in which a similar authority may arise by implication, from the conduct of the parties, or from the usages .of trade. It has been held, that where a draft which is payable at a dis- tant place, is left with a bank for collection, it must be presumed that it was intended to be transmitted to a sub-agent, at the place where it is payable, and not that the bank is to employ its own ojQBcers to proceed there, for the purpose of obtaining payment. Dor cliester and Milton Bank Y. New England Bank, 1 Cush. (Mass.) 177. But it has also been held, that a bank which receives a note for collection, whether payable at its counter, or elsewhere, is liable for any neglect of duty by which any of the parties are discharged ; and, that a notary employed by the bank to present the note, and to give the proper notices to charge the parties, is the agent of the bank, and not of the depositor or owner of the paper ; although such liability may be varied by express con- tract, or by implication from general usage. Ayrault v. PaciJiG Bank, 47 N. Y. (2 Sick.) 570; S. C, 7 Am. Rep. 489; see, also, Palmer v. Holland, 51 N. Y. (6 Sick.) 416 ; S. C, 10 Am. Rep. 616. If a principal directs his agent to sell goods at public auction, and the sale cannot be made except by a licensed auctioneer, the authority to employ such an auctioneer will be implied. Laus- satt V. Lippincott, 6 Serg. & R. 386-394 ; 1 Am. Lead. Cas. 805, 6th ed. See ante^ 243, § 9, Usage, etc. § 11. Losses ; by whom borne. Inasmuch as the lawful and proper acts of the agent are the acts of the principal, and since the principal is entitled to all the advantages which may be derived or result from the agent' s acts ; so, on the other hand, he must submit to those losses which occur in the course of the agency. De Arcy v. Lyle, 5 Binn. 441-455 ; 1 Am. Lead. Cas. 856, 5th ed. Where the agent has sold goods according to instructions, or in accordance with the usual course of trade, and AGENCY. 245 with proper diligence, he will not be liable for any loss which results from the subsequent insolvency of the purchaser. Ante, 223, § 2. An agent who deposited in his own name, Confederate money, ivhich he had collected for his principal, was held not liable for the loss of the money arising from the insolvency of the bank on the failure of the Confederacy, especially as the duty of transmittal to his principal was suspended by the war. Hale v. Wall, 22 Gratt. (Va.) 424. A collecting officer or agent, who is not instructed to the con- trary, is authorized to receive, in payment of such debts as he may have to collect, whatever kind of currency is received by prudent business men, for similar purposes, as where a clerk and master, in one of the seceded States, in the year 1863, received Confederate currency in payment of the purchase-money, due for land, sold in 1858. ^aird v. Hall, 67 N. C. 230 ; Russell v. Hankey, 6 Term Rep. 12. A principal who intrusts an agent with money for investment, but who subsequently instructs him not to invest it, renders the agent a mere depositary, who is liable for gross neglect only ; and. therefore, if the funds begin to depreciate while in the agent's hands, it is not his duty to return or offer to return the money to his principal, when the latter has equal facilities with the agent for knowing of the depreciation of the funds. Rich- ardson V. Futrell, 42 Miss. 525. A letter sent by mail to an agent at a distant place, directing him to "forward" the pro- ceeds of a note when collected, authorizes the agent to send ihe money in a letter, by mail, and if the money is never received by the principal, it will be his loss, not that of the agent. Buell V. Chapin, 99 Mass. 594. But if an agent remits the money of his principal in a manner unauthorized between them, it will be done at the risk of the agent. Kerr v. Cotton, 23 Tex. 411 ; Burr V. Sickles, 17 Ark. 428 ; Ferris v. Paris, 10 Johns. 285. An agent who places his principal's funds in the hands of a third person, subject to the principal's di^fts for the amount, ia not liable for a loss of the funds by the insolvency of the deposi- tary, if he has exercised reasonable prudence in the choice of the depositary. Hammond v. Cottle, 6 Serg. & R. 290 ; Knight v PUmouth, 3 Atk. 480. § 12. Adverse interest by agent. In the employment of aii agent, the principal bargains for the disinterested skill, diligence, and zeal of the agent for his own exclusive benefit. And when- 246 AGENCY. ever an agent is employed, the principal is entitled to the intelli gence, experience, care, skill and diligence of the agent without any conflicting interests on his part to prejudice the rights of such principal. Bain v. Brown, 56 N. Y. (11 Sick.) 285. An agent cannot act for his principal and for himself in the same transaction, by being both buyer and seller of property. And an agent to sell cannot himself become the purchaser. Bain v. Brown, 56 N. Y. (11 Sick.) 285 ; Bartholomew v. Leach, 7 Watts, 472 ; Grumley v. Wehh, 44 Mo. 444 ; Walker v. Palmer, 24 Ala. 358 ; Blount v. Bobeson, 2 Jones' Eq. (N. C.) 73 ; Arm- strong V. Elliott, 29 Mich. 485 ; Mason v. Bauman, 62 111. 76 ; Collins V. Case, 23 Wis. 230 ; Oaines y. Allen, 58 Mo. 541. So an agent employed to purchase cannot sell his own prop- erty to the principal. Conlcey v. Bond, 34 Barb. 276 ; 36 N. Y. (9 Tiff.) 427 ; 3 Abb. (N. S.) 415 ; 2 Trans. App. 200 ; Gould v. Gould, 36 Barb. 270. Although an agent employed to sell, cannot buy for himself, he may, where he is employed to sell property at auction, bid on the property on behalf of a third person. Scott v. Mann, 36 Tex. 157. But one who acts as an agent for the owner of prop- erty has no right to act as the agent of others for the purchase of the property, nor to take any advantage of the confidence which his position inspires, to obtain the title himself. Moore v. Mandlehaum, 8 Mich 433. The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase, is not confined to trustees or others who hold the legal title to the property to be sold ; nor is it confined to a particular class of persons, such as guardians, trustees, at- torneys or solicitors. It is a rule which applies universally to all who come within its principle ; which principle is, that no party can be permitted to purchase an interest in property and hold it for his own benefit, where he has a duty to perform in relation to such property which is inconsistent with the charac- ter of a purchaser on his own account and for his individual use. Van Epps v. Van Epps, 9 Paige, 237, 241 ; Blake v. Buffalo Greek R. R. Co., 56 N. Y. (11 Sick.) 485, 491 ; Michoud\. Girod, 4 How. (U. S.) 503 ; Bingo v. Binns, 10 Pet. 269; Krutz v. Fisher, 8 Kans. 90; 9 id. 501 ; Grumley v. Wehl), 44 Mo. 444 ; Parker v. Vose, 45 Me. 54 ; Kerfoot v. TTyman, 52 111. 512; Moore v. Moore, 5 N. Y. (1 Seld.) 256 ; Lytle v. Beteridge, 58 N. Y. (13 Sick.) 592, 606. AGEINCY. 247 An agent may lawfully purchase from his principal, if there is no fraud in the transaction. Flshef s Appeal^ 34 Penn. St. 29. In making a contract which requires the exercise of judgment or discretion, a person cannot act as the agent of both parties ; and where he undertakes to do so, a court of equity will avoid the contract upon the application of either of the parties. Neio York Central Ins. Co. v. National Protection Ins. Co.^ 14 N. Y. (4 Kern.) 85; Copeland v. Mercantile Lis. Co., 6 Pick. 197, 204. An agent cannot act for both parties in making a contract, where he is invested with a discretion by each, and when each of them is entitled to the benefit of his skill and judgment. Utica Ins. Co. v. Toledo Ins. Co., 17 Barb. 132. It is irregular for the same person to appear as attorney for both parties on the return of a summons issued by a justice of the peace. Sherwood v. Saratoga, etc., R. R. Co., 15 Barb. 650; Herrick v. Catley, 1 Daly, 512 ; S. C, 30 How. 208. But there may be cases in which counsel may act as such, for both parties at the same time ; and, the fact that a contract is drawn by and under the advice of one, who, at the time, is counsel for one of the parties, when such fact is known to the other party, does not, in the absence of evidence of fraud or unfairness, invalidate or affect the contract. Joslin v. Cowce, 56 N. Y. (11 Sick.) 626. A person cannot act as agent for both purchaser and seller, and earn a compensation from each, unless by a distinct arrange- ment between all who are concerned. Dunlop v. Richards, 2 E. D. Smith, 181 ; WatMns v. Cousall, 1 id. 65; Lloyd v. Calston^ 5 Bush (Ky.), 587. The law does not forbid a broker or real estate agent from acting as the agent of both parties, where it is done without con- cealment or other fraud; and, if both vendor and purchaser em- ploy the same agent, with a knowledge that he is employed by, and is acting for, both, his acts will be upheld, and he may recover a compensation from both parties. Rowe v. Stevens, 3 Jones & Sp. 189; Spyer v. Fisher, 5 id. 93. But, a broker who has acted for both parties in negotiating an exchange of real estate between them, without informing either that he was employed by the other is not legally entitled to commissions for his services. Farnsworth v. Hemmer, 1 Allen, 494; Pugsley v. Murray, 4 E. D. Smith, 245. So, a broker who is employed to sell or exchange property, with a written promise of pay if he finds a customer to whom a 248 AGENCY. sale or exchange is effected, is in effect the agent of the owner^ and cannot act for the customer ; and, if he exacts from the latter a conditional promise of compensation before sending him to the owner, he cannot recover pay from the owner for his services, even if a sale or exchange is effected. Maker v. Osgood, 98 Mass. 348. So a person who is employed by a steamship company to ex- amine a vessel which it proposes to purchase, cannot make a valid conditional contract with the owner of the vessel for a specified compensation in case a sale is made to the company ; such a contract is in conflict with the agent' s duty to the com- pany, and therefore void. Place v. Qreenman, 6 N. Y. S. C. (T. & C.) 681 ; S. C, 4 Hun, 660 ; Everheart v. Searle, 71 Penn. St. 256. A person who brings together a buyer and a seller, each of whom has agreed, without the knowledge of the other, to pay him a commission on any contract made, and a contract is made, in the making of which such person takes no part as agent for either, but acts as a mere middleman, his concealment from each of the agreement with the other is not fraudulent, and he may recover from each the commissions agreed upon. Hupp v. Samp- son, 16 Gray, 398. So an agent who is employed by difterent owners to sell two parcels of real estate, if he brings about an interview between the owners, who make an exchange, and the agent has no agency in the exchange, except in bringing about the interview and writing the deeds, he may recover the custom- ary compensation from each party. Mullen v. Keetzleb, 7 Bush (Ky.), 253 ; see Stewart v. MatJier, 32 Wis. 344. A contract made by an individual as the agent of both parties, is not void, but merely voidable, at the election of the principal, if he comes into court within a reasonable time, but, unless repudiated within a reasonable time, the objection will be waived. Greenwood v. Spring, 54 Barb. 375 ; see Bruce v. Davenport, 1 Abb. Ct. App. 233 ; 3 Keyes, 472 ; 3 Trans. App.82 ; 5 Abb. (N. S.) 185. A person who voluntarily employs the agent of another, know- ing the fact of such existing agency, is estopj)ed from setting ap the rule that the same person cannot be the agent of two princi- pals who have conflicting interests. Fltzsimmons v. Southern Express Co., 40 Ga. 330 ; S. C, 2 Am. Rep. 577. It is a rule of extensive application that where a person is Rctually or constructively an agent for another, all profits and V. Oould, 7 Lans. 177. AGENCY. 249 advantages made b}^ him in the business, beyond his ordinary compensation, are to be for the benefit of his employer. Dutton V. Willner, 52 N. Y. (7 Sick. ) 312 ; Minnesota Central R. R. Co. V. Morgan, 52 Barb. 217, affd. ; 6 Alb. Law Jour. 173 ; Eshle- man v. Lewis, 49 Penn. St. 410 ; Leake v. Sutherland, 25 Ark. 219 ; White v. Ward, 26 id. 445 ; Fisher v. Krutz, 9 Kans. 501 ; Sid. 90-98; Bunker v. Miles, 30 Me. 431. But one who consti- tutes another his agent to purchase a piece of land, may agree to pay him a specified sum if he obtains the land, and that the agent may make the best bargain he can in the purchase, with- out any liability to account to the principal for the profit of the transaction, provided there is no taint of fraud. Anderson v. Weiser, 24 Iowa, 428. And a principal cannot recover from his agent, as profits belonging to the former, such mere gratuities as have been received by the agent for incidental benefits derived from services rendered by the agent for his principal, where neither the principal nor the agent had any legal claim for the amount so received, ^tna Ins. Co. v. Church, 21 Ohio St 492. Although a person cannot properly be the agent of both par- ties, yet if he accepts the position of agent for the buyer with- out disclosing the fact that he is also agent for the seller, he can- not afterward repudiate such position for the purpose of shielding himself from liability to the buyer, on the ground that he was the agent of the seller. Cottom v. Holliday. 59 111. 176. So where one undertakes, without consideration, to sell the property of another with his consent, and he then procures a sale of it at a less price than the purchaser was willing to give, and is rewarded by the latter for so doing, he will be liable to the owner for the loss thus sustained. Hunsager v. Sturgis, 29 Cal. 142. ARTICLE VI. OF THE LIABILITIES OF AGENTS TO THEIR PRINCIPALS. Section 1. In generaL The duties of agents have been noticed in a preceding article, ante, 235, art. 5, and in this place the sub- ject of an agent's liabilities to his principal will be considered. As has been seen, ante, 235, the law requires an agent to act in entire good faith toward his principal ; and it also requires him to possess competent knowledge and proper skill in such busi- ness as he undertakes to perform. For the want of good faith, skill, or diligence, or for a violation of his duties or obligationa to his principal, whether it be by exceeding his authority or by Vol. I. — 32 260 AGENCY. p-csitive misconduct, or b}^ mere negligence or omission in the discharge of the duties or offices of his agency, or in any other manner, he will be liable to his principal for any loss or damage that may result to him in consequence. To maintain an action against an agent, it is not necessary to show fraud upon his part, for an agent is liable for neglecting to perform a duty which he has undertaken ; and he is bound, not only to good faith, but to exercise reasonable diligence, and to possess such skill as is ordinarily possessed by persons of common capacity engaged in the same business. Heineman v. Heard, 50 N. Y. (5 Sick.) 27 ; 2 Hun, 324 ; 4 N. Y. S. C. (T. & C.) 666. To sustain a contract of sale between principal and agent, upon ai purchase made by the agent, of property which formed the subject of his agency, it must appear that the transaction was fair and honest, on his part, and that before the sale he disclosed to his principal such knowledge as he possessed concerning its value, unless the principal dispensed with that duty. Brown v. Post, 1 Hun, 303 ; Ringo v. Binns, 10 Peters, 269 ; Michoud v. Girod, 4 How. (U. S.) 508 ; Condit v. BlacTcwell, 22 N. J. Eq. 481 ; Comstock V. GomstocTc, 57 Barb. 453 ; Norris v. Taylor, 49 HI. 18. An agent who is guilty of a fraud, or of a neglect of duty, in consequence of which his principal' s property, wMch is the sub- ject of his agency, is sold, cannot become a purchaser upon such sale. lb. McMalion v. McGraw, 26 Wis. 614; Eldridge v. Walker, 60 111. 230 ; White v. Ward, 26 Ash. 445 ; Gruvdey v. Wehh, 44 Mo. 444. To render an agent liable to his principal, it is not necessary that the loss or damage should be caused by the direct or immediate act or omission of the agent. If he knowingly deposits goods in an improper place, and they are destroyed by an accidental fire, or are injured by water, he will be liable to his principal for the loss. Poioers v. Mitchell, 3 Hill, 545 ; Stevens v. Boston & Maine JR. B., 1 Gray, 277. But warehousemen are not liable for the neglect of their ser- vants, in not rescuing goods in the warehouse, which are de- stroyed by an accidental fire in the night, when the servants are present, but not in the course of their employment. Aldrich v. Boston & Worcester R. R. Co., 100 Mass. 31 ; S. C, 1 Am. Kep. 76 ; Norway Plains Co. v. Boston & Maine R. R.,1 Gray, 263. A paid agent, who, by mistake, satisfies for his principal a mortgage for an amount less than is actuall}^ due upon it, ia AGENCY. 251 liable to pay the deficiency to liis principal. Kemplcer v. Roh- Iyer, 29 Iowa, 274. An agent, though, having the fullest author- ity and discretion, consistent with good faith, is liable, if he acts unfaithfully, or grossly mismanages the business intrusted to him. Myles v. Myles, 6 Bush (Ky.), 237. So he is liable for disregarding express and positive instructions as to investing money, if the securities he takes are not good. Williams v. Higgins, 30 Md. 404. An agent who collects money, and receives illegal or depreciated currency in discharge of legacies or debts, is liable, in good money, for the full amount of the debts or legacies. Turner v. Turner, 36 Tex. 41. A cashier of a bank who neglects to make demand of pay- ment of a note, and thus discharges the indorser, who is the only responsible party, is liable to the bank for the resulting damages. Bidwell v. Madison, 10 Minn. 13. So a bank which receives a promissory note for collection, whether paj^able at its counter, or elsewhere, is liable for any neglect of duty by which any of the parties to the note are discharged. AyraultY. Pacific Baiik, 47 N. Y. (2 Sick.) 570 ; S. C, 7 Am. Rep. 489 ; Montgomery County Bank v. Albany City Bank, 7 iS^. Y. (3 Seld.) 459 ; Com- mercial Bank of Pennsylt)ania v. Union Bank of New York, 11 N. Y. (1 Kern.) 203 ; Beeves v. State Bank of 0?do, 8 Ohio St. 465 ; see, also, Nunnemaker v. Lanier, 48 Barb. 234. The rule is the same where a note is delivered to an express company, for collection. Palmer v. Holland, 51 N. Y. (6 Sick.) 416 ; S. C, 10 Am. Eep. 616. A bill of exchange transmitted by the holder to a bank as agent, for presentment to the drawee, must be presented to the drawee, and an explicit acceptance obtained, or notice given to the holder, as in case of non-acceptance, or such agent will be liable for any loss sustained by the holder. Walker v. Bank of State of Neio York, 9 N. Y. (5 Seld.) 582. An agent who is employed to obtain orders for the construc- tion of machinery by his principal, and who engages in a nego- tiation for such an order, which was broken off, without reason to suppose it would be renewed, must communicate or transmit to such principal a letter, which he received after the termination of his agency, though written before that event, and it is no excuse for not sending the letter, that the agent supposed that the principal could not comply with the order. Edmonstone v. Hartshorn, 19 N. Y. (5 Smith) 9. There are cases, however, in which the loss or damage, caused 252 AGENCY. by the acts or omissions of tlie agent, are so remote as not to subject him to an action. Short v. Skipwitli, 1 Brock. Cir. 103, 104 ; Bell V. Cunningliam, 3 Peters, 69, 84, 85 ; 5 Mason, 161 ; Smith V. Condry, 1 How. (U. S.) 28. And, to be actionable, there must be a real loss, or an actual damage, and not merely a probable or possible one. Webster v. De Tastet, 7 Term R. 157 ; Hale v. Wall, 22 Gratt. (Va.) 424. § 2. Accounting by agents. Where the business in which an agent is engaged, requires an account to be kept, it is his duty to keep full, regular and accurate accounts of all transactions on behalf of his princiijal, not only of his payments and disburse- ments, but also of his receipts ; and to render such accounts to his principal, at all reasonable times, without any suppression, concealment or overcharge. A neglect or refusal to render a proper account, after a reason- able notice or request by the principal, will raise a presumption against the agent, who will be presumed to have received the money upon sales made by him, if he does not render an account of them upon a reasonable demand. Tuttle v. Mayo, 7 Johns. 132 ; Pope v. Barret, 1 Mason, 119, 127 ; Eaton v. Welton, 32 N. H. 352 ; Haas v. Damon, 9 Iowa, 589 ; Moore v. Beaiochamp^ 5 Dana (Ky.), 70, 78; Lyles v. Hatton, 6 Gill. & J. 122, 135; Sche3 V. Hassinger, 2 Binn. 325, 331 ; see Riley v. State, 32 Tex. 763. It is the duty of an agent, in all cases where he has collected money for his principal, to give him immediate notice of the fact. McMahan v. FranTdin, 38 Mo. 548 ; Lyle v. Murray, 4 Sandf. 590. An agent who has received money belonging to his principal, and unreasonably neglects to inform him of it, is liable for interest from the time when he ought to have given the informa- tion. Dodge v. Perkins, 9 Mete. 368 ; Bedell v. Janney, 4 Gilm. 194, 202 ; Nishet v. Lawson, 1 Kelly, 275, 287 ; Anderson v. State of Georgia, 2 Kelly, 370, 375 ; Leake v. Sutherland, 25 Ark. 219; Clemens v. Caldwell, 7 B. Monr. 171. Where an agent has his principal's money in liis hands, it is not enough that he merely renders an account ; he ought also to promptly pay over the money to his principal. And an agent who has received money for the use of his principal is bound to pay it over to him, and he has no right to return it to the person from whom he received it, for he will not be permitted to dispute the title of his principal by setting up an adverse title to it in a AGENCY. 25b stranger. Hancock v. Oomez, 58 Barb. 490; S. C, 50 N. Y, (6 Sick.) 668 ; Moss v. Curtis, 31 N. Y. (4 Tiff.) 606 ; People ex rel. Martin v. Brown, 55 IS". Y. (10 Sick.) 180 ; Bain v. CflarJc, 39 Mo. 252 ; Bap v. Southwell, 3 Wis. 657. So where money, which could not by law have been recovered by the principal, is voluntarily paid over to the agent by the party who could not have been compelled to pay it, the money becomes the property of the principal, in the agent's hands, for which he must account, and he cannot defend an action for it upon the ground that the money was paid on an illegal contract between the principal and the party paying the money. Murray V. YanderMlt, 39 Barb. 140 ; Baldwin v. Potter, 46 \^t. 402 ; CMnn V. Ghinn, 22 La. Ann. 599 ; Mayor of Auburn v. Draper, 23 Barb. 425 ; Daniels v. Barney, 22 Ind. 207. A factor who has received the money upon sales made by him is not bound to remit it until a demand of it is made, or the prin- cipal has given him instructions as to the time and mode of remitting, for he is not bound to take upon himself the hazard of a remittance, which, should he act without authorit}^, the law would cast upon him. Brink v. Dolsen, 8 Barb. 337; Oooley v. Betts, 24 Wend. 203 ; Ferris v. Paris, 10 Johns. 285 ; Hall v. Peck, 10 yt. 474 ; Burr v. Sickles, 17 Ark. 428. But a demand is not required where an agent denies his liability as agent. Tillotson v. McCrilUs, 11 Vt. 477, 480. Nor where he has neglected to render an account at reasonable times, and to keep his principal properly advised as to the con- dition of the agency, or he is otherwise chargeable with some default, neglect or breach of duty ; or where he has received general instructions to remit at specified times, which he has neg- lected to do. Hemenway v. Hemeiiway, 5 Pick. 389 ; Brown v. Arrott, 6 Watts «& Serg. 402, 418. A local railroad agent who is instructed to remit daily, such sums as he might receive above a specified amount, is allowed a reasonable time, in view of his other duties, to make the remit- tance, and he will not be liable for money stolen from him which he did not receive in time to remit as he was instructed. Robin- son v. Illinois, etc., B. B. Co., 30 Iowa, 401. In general, an action to recover money received by one in the character of trustee cannot be maintained until after a demand, or proof in some other way, that there has been an abuse of the trust. Walrath v. Tliompson, 6 Hill, 540. Money held as a mere deposit, whether by a bank or by an 254 AGENCY. individual, must be demanded by the depositor by a check, or otherwise, before he can maintain an action for its recovery. Payne v. Oardiner^ 29 IN". Y. (2 Tiff".) 146 ; Bownes v. Phcenix BanJc, 6 Hill, 297 : Johnson v. Farmers' Bank, 1 Harr. (Del.) 117. If a bank suspends payment, and closes its doors against its creditors, a person who has deposited money in it may maintain an action for the recovery of his deposit without first demanding payment. Watson v. Phoenix Bank, 8 Mete. 217, 221. A mere collecting agent, whose duty it is to receive money and pay it over in a reasonable time, or to give notice of its collec- tion, is liable to an action without a demand, if he neglects to pay the money over, or to give notice of its Collection. Lillie v. Hoyt, 5 Hill, 395 ; Nelson v. Kerr, 2 N. Y. S. 0. (T. & C.) 299 ; Drexel & Co. v. Ralmond, 23 Penn. St. 21 ; Estes v. Stokes, 2 Rich. (S. C.j 133 ; Hawkins v. Walker, 4 Yerg. (Tenn.) 188 ; Steele v. Mcintosh, 9 Ired. (N. C.) 307, 311. Money collected by an attorney for his client must be demanded, or a direction to remit given and neglected, before an action can be maintained against him for the money. Wal- radt V. Maynard, 3 Barb. 584 ; Jett v. Hempstead, 25 Ark. 462; Smith V. Whiteside, 4 Yerg. (Tenn.) 192 ; Nishet v. Lnwson, 1 Kelly, 275, 281 ; Rathhun v. Ingals, 7 Wend. 320 ; Taylor v. Bates, 5 Cow. 376 ; Beardslee v. Boyd, 37 Mo. 180. An attorney who collects money for his client holds it more in the character of a trustee than that of a debtor, and, therefore, a demand is but reasonable before he is liable to an action. lb. McDonough v. Delassus, 10 Rob. (La.) 481, 487, 488 ; Bedell v. Janney, 4 Gilm. 194, 201 ; Eaton v. Weldon, 32 N. H. 353 ; McBroom v. The Governor, 6 Port. (Ala.) 33, 47 ; Armstrong v. Smith, 3 Blackf. 251 ; Taylor v. Spears, 1 Eng. (Ark.) 382 ; Cockrill V. Kirkpatrick, 9 Mo. 697, 704 ; Haas v. Damon, 9 Iowa, 589. But no demand need be made of an attorney who denies hia liability to pay the money to his client, and claims from him a sum greater than the amount collected. Walradt v. Maynard, 3 Barb. 584. But such a claim does not dispense with a deman^J unless the declaration is made to the client, or to his agent, nor unless it is shown to have come to the knowledge of the client before the action is brought. Rathhun v. Ingals, 7 Wend 320. AGENCY. • 255 ARTICLE VII. DEFEASES OF AGEXTS AGAIXST PRIN"CIPALS. SectioD 1. Ill general. The duties which agents owe to their principals, and their liabilities to them having been discussed in the last two articles, it will be proper now to notice some of the defenses which an agent may interpose to claims or actions by his principal. An attempt to enumerate all the instances in which a successful defense may be set up by the agent, would be difficult, if not impracticable. There are some general principles, Jhowever, which apply to large classes of cases, and some of these principles will be stated and illustrated by the adjudged cases. § 2. Illegality as a defense. There is scarcely any contract which may not be set aside or held invalid, if it can be sLr>\vu that it is illegal in its nature. See Illegality. And whert il^j subject-matter of the agency is an immoral or illegal transaction, or is founded in fraud or against public policy, the agent is not bound to aid in carrying into effect such an agency, and he may successfully defend any action brought against him by his prin cipal, where the action is founded upon a neglect or refusal to assist in such illegal acts. Webster v. DeTastet, 7 Term R. 157 ; Bexwell v. CJiristie, Cowp. 395 ; Catlin v. Bell^ 4 Camp. 183 ; Armstrong v. Toler, 11 Wheat. 258, 268. But if an agent consents to act in the matter, amd receives money in that capacity for his principal, he will not be permitted to retain the money on the ground of the illegality of the trans- action between the principal and the party paying the money to the agent. Ante, 253. Murray v. Vanderbilt, 39 Barb. 140 ; Baldwin v. Potter, 46 Yt. 402 ; Tenant v. Elliott, 1 Bos. & Pul. 3 ; Johnson v. Lansley, 12 C. B. 468 ; Bousfield v. Wilson, 16 M. & W. 185 ; S. C, 16 L. J. Exch. 44 ; Pointer v. Smith, 7 Heisk. (Tenn.) 137. Ante, 253, § 2. §3. iVo damage to principal. Although an agent should neg- lect or disobey the instructions of his principal, it does not fol- low that an action for substantial damages will alwaj's lie againsi him for such neglect or disobedience. The agent may show that no loss or damage has resulted to the principal frotu the neglect. A?ite, 251 ; Folsom v. Mussey, 10 Me. 297; Fomin v. Oswell, 3 Camp. 357. See Paley on Agency, 74 ; Story K)\\ Agency, § 236 ; Suydam v. Allen, 20 Wend. 324 ; Frothing' ham V. Eoerton, 12 K. H. 239. 256 ' AGENCY. § 4, Necessity. An agent who has neglected or violated his instructions may show that his acts or omissions were the result of an overwhelming necessity. Dusar v. Perit, 4 Binn. 361 ; Day V. Nohle, 2 Pick. 615 ; ForresUer v. Boardman, 1 Story, 44, 51 ; Greenleaf v. Moody, 13 Allen, 363. The law does not seek to compel a man to do that which he cannot possibly perform Broom's Leg. Max. 242. With respect to private rights, neces sity privileges a person acting under its influence. lb. 11. § 5. Ratification. It has been seen that a voluntary ratifica tion of the acts of one who has assumed to act as agent, with a full knowledge of all the material facts in the case, will bind the principal as much as he would be bound by a previous authority^ to the same effect. Ante, 218, art. 3. This principle may also be invoked by the agent ; for, where the principal, with a full knowledge of all the material facts and circumstances of the case, deliberately ratifies the acts or omissions of his agent, he will be as conclusiv^ely bound thereby as though he had originally gi^en express authority to the agent. Ante, 232, art. 4, § 13 ; Qairnes V. Bleecker^ 12 Johns. 300 ; Via/ma v. Barclay, 3 Cow. 281 ; Corning v. Southland, 3 Hill, 552 ; Towle v. Stevenson, 1 Johns, Cas. 110; McKinley v. Tucker, 6 Lans. 214. ARTICLE VIIL LIABILITY OF AGENTS TO THIRD PERSONS, ON CONTRACTS. Section I. A known agent is not responsible. An agent who makes a contract in behalf of his principal, whose name he discloses at the time, to the person with whom lie contracts, is not personally liable upon it. Rathhone v. Budlong, 15 Johns. 1 ; Ferris v. Kilmer, 48 N. Y. (3 Sick.) 300 ; McOlernan v. Hall, 33 Md. 293; Tiller v. Spradley, 39 Ga. 35. It is in relation to written con- tracts or instruments that the question of an agent's liability most frequently arises ; and, several of the cases showing when an agent will be liable, and when not, have been already cited. Ante, 236, art. 5, § 3. See, also, 1 Am. Lead. Cas. 757-764, 6th ed. § 2. Agent assuming liability. Although the law ordinarily exempts an agent from personal liability, if he acts within the scope of his authority, and properly discloses his principal's name, yet an agent is at liberty to incur a personal responsibility if he chooses to do so by his own act or contract, or where, from his own conduct, or the form of the act or contract, it is neces- AGENCY. 257 sarily implied, or created, by operation of law. And, if an express warranty that a note is genuine, is made by tlie agent of tlie seller, this will bind the agent personally, where it appears that such was the intention. Wilder v. Cowles, 100 Mass. 487. An agent who gives a note in his own name, with nothing upon it to indicate that he does not assume a personal liability, will be held as a principal in the note. SnelUng v. Howard, 51 N. Y. (6 Sick.) 373. A promissory note, or a bill of exchange, in which no principal is named, but is signed " A B, agent," binds A B, onl}^, and will not support an action against any other person. Williams v. Rohhins, 16 Gray, 77; Peiitz v. Stanton, 10 Wend. 271 ; Bickford v. First, etc., BanTc, 42 III. 238 ; Collins v. Buck eye Ins. Co., 17 Ohio St. 215 ; Woodhury v. Blair, 18 Iowa, 572. Where one professes to act as an agent and makes a contract under seal to do work for another, and he alone signs the con- tract, and receives the pay for the work, he will be held liable for the non-peirformance of the work. Einstein v. Holt, 52 Mo. 340. Where one, who appears to have full control of the other busi- ness of a steamboat, hires a man to act as chief engineer, and does not disclose the fact that he is an agent, the person hired may recover his wages of him personally. Farrell v. Camplell, 3 Ben. 8. The cases in which an agent will be held to have assumed a personal liability, on account of the mode in which ho assumed to contract, are numerous and varied. For some of these, see ante, 236, art. 5, § 3. § 3. Agent exceeding liis authority. It has been shown that it is the duty of an agent to act within the scope of his authority. Ante, 236, 240, art. 5, §§ 5, 3. If one person assumes to act as the agent of another when he possesses no authority from the principal to do so ; or, if he is employed as'an agent, but exceeds the authority conferred upon him, he will be personally liable to such persons as he may deal with on account of such principal. And, if an agent enters into a contract which is Dot binding upon his principal because he did not authorize it, the agent will be liable in damages to the person who dealt with him on the faith that he possessed the authority which he assumed; and such liability is founded upon an implied warranty b}^ the agent that he had authority, for which the remedy is b}^ an action for its breach. Baltzen v. Nicolay, 53 N. Y. (8 Sick.) 467; Wliite v. Madison, 26 N. Y. (12 Smith) 117; ColleuY. Wright, 8 Ell. & Bla. 647; S. C, tO Eng. Law & Eq. 182. Vol. I. — 83 868 AGENCY. But, to render the agent liable, the unauthorized contract must be one that could have been enforced against the principal if the agent had been authorized to make it. lb. Dung v. ParTcer, 52 N. Y. (7 Sick.) 494. If such contract is void by the statute A frauds, it cannot be enforced directly or indirectly. lb. And even though the action is in fraud, there can be no recovery if the proof of such contract is essential to maintain the action. lb. If one falsely and fraudulently asserts that he is authorized to act as the agent of another, he will clearly be liable to such per- sons as may deal with him upon the faith of his assertions, if they suffer injury or damage in consequence. Lander v. Castro^ 43 Cal. 497 ; McCurdy v. Rogers, 21 Wis. 197 ; Duncan v. Mies, 32 111. 532 ; Taylor v. 8helton, 30 Conn. 122 ; Jefts v. York, 4 Cush. (Mass.) 371 ; 10 id. 392, 395 ; Hopkins v. Mehaffy, 11 Serg. 6 R. 129; Spedding v. Newell, L. K, 4 C. P. 212 ; Qoldwin v. Francis, L. R., 5 C. P. 295. If a person falsely represents himself to be the agent of another, and to have authority to contract for him, and he does so con- tract without authority, the only remedy is by an action against him for the fraud or deceit. JVoyes v. Loring, 58 Me. 208 ; Bartlett v Tucker, 104 Mass. 336; S. C, 6 Am. R. 240 ; McCurdy v, Rogers, 21 Wis. 197. See Deceit ; Fraud. But where one undertakes to act as the agent of another, in the sincere belief that he has authority, although, in fact, he has none, he will be liable to a third party who deals with him in ignorance of his want of authority, if he suffers loss in conse- quence, upon the ground of an implied warranty of authority. White V. Madison, 26 N. Y. (12 Smith) 117 ; Collen v. Wright, 7 Ell. & Bla. 301 ; 8 id. 647 ; S. C, 40 Eng. Law & Eq. 646; Richardson v. Williamson, L. R., 6 Q. B. 276- One who induces an agent to exceed his authority, and to enter into a contract which is unauthorized by his principal, can- not hold the agent personally liable upon the contract. Aspirir wall V. Torrance, 1 Lans. 381 . § 4. Not disclosing agency. It is the duty of every person who acts as an agent for another, to disclose that fact to the party with •whom he deals, if he desires to avoid a personal liability upon the contracts he enters into. If, at the time of making a contract, he does not disclose the fact of his agency, but deals with the other party as though he were the principal, he may be held personally liable upon his cx)ntract, at the election of the party dealing with him. Cottom AGENCY. 269 V. HoUiday^ 59 111. 176 ; Farrell v. Canvpbell^ i Ben 8 ; Bald' win V. Leonard, 39 Yt. 260; Kelner v. Baxter, L. R,, 2 C. P. 174; Mauri v. Heffernan, 13 Johns. 58; Winsor v. Griggs, f Cush. (Mass.) 210. A factor, broker, or other agent, who buys goods in his own name for his principal, will be liable to the vendor for the price, if such agency was not disclosed. lb. But the real principal, when discovered, may be sued upon the contract, precisely as though his name had been disclosed Cole V. First National Bank of Elmira, 53 N. Y. (8 Sick.) 388 Oreen v. Blceel, 2 Hun, 485 : s. C , 5 N. Y. S. C. (T. & C.) 25 Beebe v. Robert, 12 Wend. 413 ; Carney v. Dennison, 15 Vt. 400 : Tabor v. Cannon, 8 Mete. 4o6 ; Clealand v. Walker, 11 Ala. 1059 § 5. Agent's liability for a foreign principal. An agent may become responsible for the debts or contracts made for a foreign principal, if such agent assumes an express personal liability, or by omitting to disclose his agency, and the fact that he is act- ing for such a principal. In many cases it is a mere question of intention whether the agent assumes a personal liability ; and it is therefore a question of fact which is to be ascertained and determined by the terms of the particular contract, and the surrounding circumstances. Oreen v. KopJce, 18 C. B. 549 ; S. C, 3, 6 Eng. Law & Eq. 396 : Oelrichs v. Ford, 23 How. (U. S.) 49, 65. The mere fact that an agent acts in behalf of a foreign princi- cipal is not, of itself, a ground for imposing upon him a per- sonal responsibility. " If, by the language of the contract, the agent and not the principal is bound, such must be its construc- tion ; and, on the other hand, if it clearly binds the principal, and is in form a contract with him only, the agent must be exonerated, without regard to the fact that the principal is resi- dent in a foreign country." Bray v. Kettell, 1 Allen, 80, 83, 84; KlrJcpatrick v. Stainer, 22 Wend. 244 ; MaJiony v. Kekul'e, 14 C. B. 390; Oelrichs v. Ford, 23 How. (U. S.) 49, 65. Where the contract stipulates that the agent shaU not be bound by it, he will not be liable, although acting for a foreign princi- pal, whose name is not disclosed. Oglesby v. Tglesias, 1 Ell Bla. & El. 930. But where he signs a written contract, he must be careful to see that he binds his principal and not himself. Paice v. Walker^ L. R., 5 Exch. 173, 177 ; and see a7ite, 238. § 6. Liability of agent who contracts in his own name. A per- son who enters into a contract as an agent will be personally zoo AGENCY. liable, whether he is known to be an agent oi Qot, in all cases in which he makes the contract in his own name, or where he volun- tarily incurs a personal responsibility, either express or implied. And if a firm of agents give their firm notes, with nothing upon them to show that they did not assume a personal liability, they will be treated as principals in the notes. Snellmg v. Howard^ 61 N. Y. (6 Sick.) 373 ; Collins v. Buckeye Ins. Co., 17 Ohio St. 215 ; Woodbury v. Blair, 18 Iowa, 672. Where a check is signed " A B, agent," this does not disclose the fact that the drawer is the agent of any one, and if that is the only indication of his agency, he will be personally bound as the drawer. Bickford v. First Nat Bank, Gliicago, 49 111. 288. A person who signs notes as president of a bank which has no legal existence is personally liable on them. Allen v. Pegram, 16 Iowa, 163 ; see Woodbury v. Blair, 18 id. 572. In those cases in which parol evidence is admissible to show whether the principal or the agent is the responsible party, ante, 229, the question is one of fact to be settled upon the evidence by a jury, or a court sitting in the place of a jury. Cunningham v. Soules, 7 Wend. 106 ; Coleman v. Mrst Nat. Bank of Elmira, 53 N. Y. (8 Sick.) 388, 392, 393. But to charge the agent, it must be shown affirnxatively that the credit was given to him exclusively. Butler v. Evening Mail Association, 61 N. Y. (16 Sick.) 634. ARTICLE IX. OF THE LIABILITY OF PUBLIC AGENTS UPON CONTBACTS MADE BY THEM. Section 1. The general rule. One who acts in the capacity of an agent for the government, or for the public, is not usually liable personally upon contracts made by him, even though he would be bound by such a contract, if he were acting as an agent of a private person. McClellan v. Reynolds, 49 Mo. 312. A public agent is protected from a personal responsibility, upon the supposition that his office excludes the presumption that any credit was given to him personally, although there may not be any other person against whom a legal remedy lies to enforce the contract. It will not be presumed that a public agent intends to bind himself personally, nor that a party who deals with him in his public character means to rely upon his individual responsibil- AGENCY. 261 Ity Crowell v. Crispin, 4 Daly, 100; Nichols v. Moody ^ 22 Barb. 611 ; McClellan v. Reynolds, 49 Mo. 312 ; Murray v CarotJiers, 1 Mete. (Ky.) 71. § 2. When a public agent is not liable. A public agent, who is known to be acting merely in that capacity, and who does not malie himself liable by any thing amounting to a personal con- tract, is not liable for articles or thing? furnished upon his order. A recruiting agent, duly appointed foi' the purpose of enlisting soldiers, is not liable for the payment of the bounty offered, nor for the payment of the value of the soldier' s services. Hall v. Lauderdale, 46 N. Y. (1 Sick.) 70. One who makes a contract as a public officer, and acts honestly in that capacity, is not ordinarily liable personally ; and, if hia authority is defined by a public statute, all who contract with him will be presumed to know the extent of his authority, and they cannot allege their ignorance as a ground of charging him with acting in excess of his authority, unless he knowingly mis- leads the other party. Newman v. Sylvester, 42 Ind. 106 ; Mur- ray V. Car others, 1 Mete. (Ky.) 71. And where a statute limits the amount of an expenditure, this is notice in law and in fact to the contractor that the officers of the government cannot exceed the prescribed bounds. Curtis v. United States, 2 Nott. & Hun, Ct. Claims, 144 ; Baltimore v. Reynolds, 20 Md. 1 ; State V. Hastings, 10 Wis. 618 ; Hull v. County of Marshall, 12 Iowa, 142. A public agent who contracts by a writing which shows on its face that he is acting officially, is not bound personally {Fox v. Drake, 8 Cow. 191 ; McClellan v. Reynolds, 49 Mo. 312), and the rule is the same, although he does not add his official designa- tion to his signature. Lyon v. Adamson, 7 Clarke (Iowa), 509. A public agent who, in his known official capacity, employs a man to work on account of the government, is not personally liable for the wages of the person emploj'ed. Walker v. Swart- wont, 12 Johns. 444 ; Nichols v. Moody, 22 Barb. 611 ; Randall V. Van Yechten, 19 Johns. 60 ; Perrin v. Lyman, 32 Ind. 16. A canal superintendent, who is known to be acting as such, ia not personally liable for work done or materials found at hia request, and on his promise to pay for them, for the repair of the canals or works therewith connected, unless it is manifest that it was the intention of the parties that he should be personally re- sponsible. Osborne v. Kerr, 12 Wend. 179 ; West v. Jones, 9 Watts, 27. So of a contract by an overseer of the poor of a town, 262 AGENCY. for the support of a pauper. Olney v. Wlckes, 18 Johns. 122. A justice of the peace who renders official services in relation to the support of the poor of the county, at the request of the county superintendents of the poor, cannot maintain an action against them for such services. Vedder v. Superintendents^ ctc.y of Schenectady^ 5 Denio, 564 ; see Hayes v. Symonds^ 9 Barb. 260. No action will lie against an army officer, on his promise to pay a reward for apprehending a deserter, where the person perform- ing the service knew that such promisor was a captain in the army, and acted as such in offering the reward. Belknap v. Meinhart, 2 Wend. 375 ; Hodgson v. Dexter, 1 Cranch, 345. The rule which exempts such agents from a personal liability is the same whether the contract be oral, in writing, or under seal, where the contract or instrument does not show an inten- tion to assume a personal responsibility. Fox v. Drake, 8 Cow, 191 ; Hodgson v. Dexter, 1 Cranch, 345, 363, 364 ; Hodges v. Runyan, 30 Mo. 491 ; and see the various cases that have been cited in this section. No action can be maintained against a public agent who refuses to pay over money in his hands, although it is demanded by one to whom it ought to be paid by the principal. The agent is re- sponsible to no one but his principal, and he owes no legal duty to a creditor of such principal. Hall v. Lauderdale, 46 N. Y. (1 Sick.) 70 ; and see Denny v. Manhattan Co., 2 Denio, 115 ; 5 id. 639 ; Colmn v. Holbrook, 2 N. Y. (2 Comst.) 126 ; Gridley v. hord Palmerston, 3 Brod. & Bing. 275. But, where money is received by a public officer as a trustee, who is directed by statute to ^'\ry it over to specified bondholders, for whose benefit tht. money was raised, an action will lie by such bondholders against "'.he officer. Ross v. Curtis, 30 Barb. 238 ; 31 N.Y. (4 Tiff.) 606 ; Peo2)le v. Broion, 55 N.Y. (10 Sick.) 180 ; 3fur- doch V. Aiken, 29 Barb. 59 ; 25 How. 594, n; 31 N.Y. (4 Tiff.) 609. § 8. When a public agent is liable upon contracts. While there is a presumption that a public officer or agent does not intend to assume a personal liability upon contracts entered into by him in the capacity of agent, he may, if he chooses, make a contract which will bind him personally. And where a public gove-rnment officer makes an express personal promise to -p^y for services rendered to the government, he will be personally liable. Gill V. Broi07i, 12 Johns. 385; Ki?ig v. Butler, 15 id. 281 ; Copes V. Matthews, 10 Sm. & Marsh. 398. Where it does not appear that an agent, in making a contract, AGENCY. 263 acted expressly or ostensibly, as a public agent, it will be deemed a private contract, upon which the agent will be liable. Swift v. Eopliins, 13 Wend. 313 ; Yan Hoemribergli v. Hasbrouck, 45 Barb. 197. Bnt, where it is sought to charge a public officer or agent with a personal responsibility, the facts and circumstances ought to be such as to show clearly that both parties acted upon the assumption that a personal liability was undertaken. lb. Gill V. Broion, 12 Johns. 385 ; King v. Butler, 15 id. 281 ; Murray V. Kennedy, 15 La. Ann. 385. The question to whom the credit was given is one of fact to be settled by a jury, in all cases where the terms of the contract do not clearly determine or declare whether a personal liability is assumed. Cunningliam v. Soules, 7 Wend. 106 ; Haw.marsJcold V. Bull, 9 Rich. 484 ; Brown v. Eundlett, 15 N. H. 360. If a person assumes to act as a public olficer or agent, when he has no such authority, and he enters into a contract which does not bind his professed or pretended principal, he will, as in other cases of an unwarranted or assumed agency, be personally liable. Ante, 257; Res v. Hulet, 12 Yt. 314. § 4. Liability of government or principal. The diflference betwe<^n the liability of an individual as a principal, and that of the government as princijDal, is, that the former is liable to the extent of the authority he has apparently given to his agent, while the latter is liable only to the extent of the power actually conferred upon its officer or agent. Pierce v. United States^ 1 Nott & Hun, Ct. Claims, 270 ; Lee v. Munroe, 7 Cranch, 366. ARTICLE X. LIABILITY OF AGEN^TS FOR TORTS. Section 1. Of tlieir liability in general. In discussing the liabilities of an agent to third persons, for the torts or wrongs of the agent, it is important to distinguish between acts of misfeas- ance or positive wrongs, and nonfeasances or mere omissions of duty by the agent. The general rule of the common law is. that a servant who, by negligence in the discharge of his duties, injures a third person, he will not be personally liable to such third person for the injuries done. Colmn v. Holbrook, 2 N. Y, (2 Comst.) 126, 129 ; Hall v. Lauderdale, 46 N. Y. (1 Sick.) 70; Denny v. Manhattan Co., 5 Denio, 639 ; 2 id. 115. 264 AGENCY. The injured party is not without remedy in such a case, for the principal is liable to third persons for the misfeasances, negli- gences, and omissions of duty of the agent, in all cases and matters within the scope of his employment. Burns v. Poulsom, L. R., 8 C. P. 563 ; Whatman v. Pearson, 3 id. 422 ; Keeney v. Orand Trunk Railway Co., 59 Barb. 104; 47 N. Y. (2 Sick) 525; AltliorfY. Wolfe, 22 N. Y. (8 Smith) 355. A principal is liable to an action for the fraudulent n^isrepre- sentation of his agent, while acting in the course of his business. Barwick v. Englisli Joint-Stock Bank, L, R., 2 Exch. 259. The master and owner of a ship are responsible for the goods which they have undertaken to carry, if they are stolen or embezzled by the crew, or by any other person ; and although no fault or negligence is imputable to tliem. ScTiieffelin v. Har- xiey, 6 Johns. 170. A telegraph company is liable for the negligence of its agents or operatives, in the transmission of messages. New York & Washington Printing Tel. Co. v. Dryhurg, 35 Penn. St. 298 ; Dunning v. Roberts, 35 Barb. 463 ; Birney v. Washington Printing Tel. Co., 18 Md. 341. The authorities enforce the maxim respondeat superior, in those cases in which an agent is acting within the scope of his authority, and in pursuance of his principal's directions, but where, by his ignorance, unskillfulness, or negligence, he causes an injmy to a third person ; for such acts of the agent, the principal is liable, but no action lies against the agent by such third person. The agent may, however, be responsible to his principal for the loss sustained by him in responding to third persons for his negligent acts. § 2. When agent is liable to third persons. An agent who knowingly exceeds his authority, or who intentionally deviates from it, and willfully injures the person or property of another, will be personally liable for the consequences. Elmore v. Brooks, 6 Heisk. (Tenn.) 45 ; Wright v. Eaton, 7 Wis. 695 ; Richardson V. Kimball, 28 Me. 463. If the principal neither authorized, nor has ratified, a willful trespass which has been committed by one employed as his agent, he will not be liable for the agent's wrongful acts. Vanderbillv. Richmond Turnpike Co., 2 N. Y. (2 Comst.) 479 ; Isaacs \. Third Avenue R. R. Co., 47 N. Y. (2 Sick.) 122; 7 Am. Rep. 418. While an agent is protected as to lawful acts done within the AGENCY. 265 scope of his authority, ante, 240, 263, 265, this is not the rule when he does an illegal act, even by the direction of his principal ; for, the principal himself is liable for an unlawful act, and he can- not confer upon another an authority which he himself does not possess. In such a case, the agent is under no obligation to his princi- pal which will require him to do an unlawful thing ; and, there- fore, if he does an unlawful thing, even by the command of his principal, he will be liable for the injuries done to third persons, in the same manner that he would have been responsible if no command or direction had been given by the principal. Wright V. Eaton, 7 Wis. 595 ; Richardson v. Kimhall, 28 Me. 463 ; Elmore v. Brooks, 6 Heisk. (Tenn.) 45 ; Ford v. Williams, 24 N. Y. (10 Smith) 359 ; Burnap v. Marsh, 13 111. 535 ; Perminter V. Kelly, 18 Ala. 716 ; Oaines v. Briggs, 4 Eng. (9 Ark.) 46 ; Josselyn v. McAllister, 22 ]\[ich. 300; Thorp v. Burling, 11 Johnsr 285 ; Spraights v. Hawley, 39 N. Y. (12 Tiff.) 441 ; 7 Trans. App. 14 ; 40 Barb. 397. An agent is liable, under some circumstances, for the acts of other persons emploj-ed by him as assistants, in the performance of his own contracts or duties toward his principal. And, where an agent enters into a contract to do some particular act or thing, he will be liable for the trespass, frauds, and misfeas- ances of those whom he may employ as assistants, in the per- formance of such act or thing. A common carrier of passengers, for instance, is held to have contracted for the proper treatment of passengers, as well as for their transportation ; and he is therefore liable for the acts of such persons as he may emploj^ in the business ; and, if such persons willfully insult or injure passengers, the carrier is responsible in damages. Seymour v. Greemcood, 7 H. & N. 355 ; Bayley v. Manchester, etc., Railioay Co., L. R., 7 C. P. 415 ; Goddard v. Grand Trunk Railway, 57 Me. 202 ; 2 Am. Rep. 39 ; Bryant v. Pdch, 106 Mass. 180 ; 8 Am. Rep. 311 ; Pittsburg, etc., P. U. Co. v. Slusser, 19 Ohio St. 157, 162 ; Weed v. Panama R. R Co., 17 N. Y^ (3 Smith) 362 ; Day V. Owen, 5 Mich. 520; Craker v. R. R., 36 Wis. 657; 17 Am. Rep. 504. And, in this respect, the law especially pro- tects female passengers. Craker v. R. P., 36 Wis. 659 : 1*7 Am. Rep. 504 ; Mcto v. Clark. 1 Clif. 145 ; Chamberlain v. Chandler. 3 Mas. 242. A bank which receives notes for collection is liable for the acts or omissions of its agents, or of other banks to whom the Vol. L— 34 266 AGENCY. notes may be transmitted by it for collection. Montgomery County Bank v. Albany City Bank, 7 IS". Y. (3 Seld.) 459 ; Ay fault V. Pacific Bank, 47 N. Y. (2 Sick.) 570 ; 7 Am. Rep. 489 ; see Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq. Cas. 22G. A bailee who undertakes to keep money safely, is liable for the acts or neglects of liis servants, in respect to sucli deposits. Clark V. Bank of Wheeling, 17 Penn. St. 322 ; Taber v. Parrott^ 2 Gall. 565 ; Bay v. Bank, 10 Bush (Ky.), 344. A mercantile agency, or an attorney, who receives accounts, bills, notes, or demands for collection, will be responsible to the depositor, for any acts, frauds, omissions, or negligences of any person or agent to whom such bills, notes, etc., may be sent, or with whom they may be left for collection, by the party employed by such depositor. Bradstreet v. Eoerson, T2 Penn. St. 124 ; Lewis V. Peck, 10 Ala. 142 ; Pollard v. Rowland, 2 Blackf. 22; Cummins v. WLain, 2 Pike (Ark.), 402 ; Wilkinson v. Griswold, 12 Sm. & Marsh. 669 ; ante, 249, art. 6, § 1. § 3. Agent when not liable for torts. An agent who is engaged in the performance of lawful acts, and who does not exceed the authority conferred upon him, will not, as a general rule, be personally liable to third persons for his acts, or neglects. Ante, 263, § 1, So it has been seen, ante, 256, that he is not liable upon his contracts, unless he assumes a personal liability. § 4. Principal not liable for agent's willful torts. Although a principal is liable for the negligence of his agent, when acting within the scope of his authority, ante, 263, and in some cases for his willful or malicious acts, ante, 265, § 2 ; yet the general rule is, that a principal is not responsible for the acts of an agent who exceeds his authority, and willfully does an injury to the person or property of another. Vanderbilt v. Richmond Turnpike Co., 2 N. Y. (2 Comst.) 497 ; Isaacs v. TJiird Amnue R. R. Co., 47 N. Y. (2 Sick.) 122 ; 7 Am. Rep. 418. But, if a principal ratifies, or takes advantage of his agent's tortious acts, he will be liable, whether such torts be willful or fraudulent. Durst v. Burton, 47 N. Y. (2 Sick.) 167 ; 7 Am. Rep. 428 ; Woodward v. Webb, 65 Penn. St. 254 ; Pri ester v. Augley, 5 Rich. 14 ; Exum v. Bristor, 35 Miss. 391 ; Wallace v. Morgan^ 23 Ind. 399. A principal cannot enforce a contract which his agent has fraudulently obtained, even though he neither authorized nor had notice of the fraud prior to the execution and delivery of the contract. Cassard v. ninman, 8 Bosw. 8 ; Concord Bank v. AGENCY. 267 Oregg, 14 X. H. 331 ; Robinson v. Bealle, 20 Ga. 275 ; WrigTtt V. Cailioun, 19 Tex. 412. § 5. Liability of public agents for torts. It is a general rule, that the government is not responsible for the misfeasances^ wrongs, negligences, or omissions of duty of the subordinate officers or agents employed in the public service. And this rule of exemption from liability extends so far that public officers and agents are not liable for the misfeasances or positive wrongs, or the nonfeasances or negligences, of the sub-agents, or ser- vants, or other persons properly employed by and under them, in the discharge of their official duties. The postmaster general is not liable for anj^ default, negligence, or misfeasance of any of the deputies or clerks employed under him in his office. Lane v. Cotton, 1 Ld. Raym. 646 ; 12 Mod. 482. A contractor for the transportation of the public mail is not liable for money inclosed in a way-letter, and lost by the neglect of the mail carrier employed b}^ him on the route. HutcMns v. BracJcett, 22 N. H. 252 ; Conwell v. Voorhees, 13 Ohio, 523. The mail carrier is not an officer of the government, but the private agent of the contractor, who is liable to third persons for injuries sustained by them through the negligence or default of such agent in the performance of his duties. Sawyer v. Corse, 17 Gratt. 230. An action will not lie against a postmaster for the purloining of a letter by his sworn assistants, who was appointed and retained in good faith. Bcliroyer v. Lynch, 8 Watts, 453 ; Wig- gins V. Hathaway, 6 Barb. 632. But see Coleman v. Frazier, 4 Rich. 146. But he will be liable for the acts of one whom he permits tc have the care and custody of the mail, in his office, where such person has not been sworn according to law. Bishop v. Wil- liamson, 11 Me. 495 ; Christy v. Smith, 23 Vt. 663. And it has been held that an assistant postmaster is not an officer of the government, but a mere servant or agent of the postmaster, who is liable in a civil action for the negligence of the assistant, by means of which a letter containing money is stolen from the office. Coleman v. Frazier, 4 Rich. 146 ; and see Bolan v. Wil- liamson, 1 Brev. 181 ; 2 Bay, 551 ; Christy v. Smith, 23 Vt. 663 908 AGENOY. ARTICLE XI. OF THE RIGHTS OF AGENTS IN REGARD TO THEIR PRINCIPALS. Section 1. In general. The general duties of an agent, and his obligations to his principal, as well as his liabilities to third persons, having been sufficiently noticed, it remains to consider some of the rights of an agent in regard to his principal. These subjects will be separately considered in the several following sections. § 2. Compensation of agent. A duly authorized agent, who renders services for his principal in accordance witli the employ- ment he undertakes, is, as a general rule, entitled to a reasonable compensation, if there is no express agreement upon that sub- ject. Mangum v. Ball, 43 Miss. 288. An agreement to pay an agent for his services a certain amount " in equal quarterly payments" is a contract for a year, and an action lies for the stipulated salary if the agent is dismissed without cause before the expiration of the year. KirJc v. Hart- man, 63 Penn. St. 97. Where an agent is employed under a contract for a specified time, at an agreed salary, and he continues in such employment after the expiration of the agreed time, he will be entitled to the same rate of compensation for the additional time. Vail v. Jer- sey Little Falls Manvf. 6(9., 82 Barb. .564. A continuance in the employment of the hirer, with his consent, after the comple- tion of the first contract, is equivalent to a new hiring upon the same terms. lb. If a hirer does not carry on his business for a part of the time, and thus has nothing for the agent to do dur- ing that period, this will not affect the construction of the con- tract, or the liabilities of the parties. lb. The compensation of an agent may be by salary, or by com- missions. Where the compensation is to be by salary, the con- tract is one for a specified period of time for a definite sum; where compensation is by commissions, the payment depends upon the performance of specified conditions or transactions. An agent employed at a specific salary is entitled to payment at the agreed sum, even though the employer does not furnish full employment. Vail v. Jersey Little Falls Manuf. Co., 82 Bai-b. 564. So where an employer agrees to furnish employment to another for a certain time, at a specified compensation, and he discharges AGENCY. 266 him witliout cause, before tlie expiration of the time, he is in general bound to pay the full amount of wages for the whole time. Costigan v. MoliawTc & Hudson R. R. Co., 2 Penio, ^09; Colburn v. Woodworth, 31 Barb. 381; Decker v. Hassel, 26 How, 528. If a princij)al, w^ho has an agent in his employ, at a fixed sal- ary, confers upon him additional powers which involve greater duties, with no stipulation for additional compensation, the agent cannot recover extra wages for such additional service. Moreau v. Dumagene, 20 La. Ann. 230; Marshall v. Parsons, 9 C. & P. 656; Gratiot v. United States, 4 How\ (U. S.) 80; United States V. Buclianan, 8 id. 83; United States v. Brown, 9 id. 487, .500. How far custom will change the rule may not be entirely set- tled. See United States v. McDonald, 7 Peters, 1 ; United, States V. Fillehroicn, id. 28. Where there is an express agreement as to the amount of com- pensation or salary to be paid by the principal to the agent, that will control, and the contract cannot be varied by custom or usage of trade, or by any implied agreement, ante, 127 ; Bower V Jones, 8 Bing. 65. In the absence of an express agreement, the agent may recover the usual or fair and just compensation which the law gives in such cases. Mangum v. Ball, 43 Miss. 288. If services are rendered gratuitously, as by a friend, neighbor, or relative, without any stipulation as to compensation, and without intending to make any charge for them, a claim cannot afterward be enforced by action for such services. Hill v. Wil- liams, 6 Jones' Eq. (N, C.) 242; Bartliolomew v. JacTcson, 20 Johns. 28; Ehle v. Judson, 24 Wend. 98. Services are sometimes rendered upon a mutual r.nderstand- ing that they are to be compensated by a provision in the will of the part}' for whom they are performed ; and. in such a case, if no provision is made by will, an action will lie to recover the value of such services. Rohinson v. Raynor, 28 N. Y. (1 Tiff.) 494; Quackenhusli v. Ehle, 5 Barb. 469; Martin v. Wrighfs Admrs., 13 Wend. 460; Bayliss v. Pricture. 24 Wis. 651; Jil- son V. Gilbert, 26 id. 337; 7 Am. Rep. 100. A very common mode of making compensation for an agent's services is by commissions. There may be an express agreement as to their amount, which is usually a percentage upon the value or amount of business done, such, for instance, as the value of 270 AGENCY. the goods bought or sold within a specified time, or during the course of the agency. Marshall v. Parsons, 9 C. & P. 656; Boioer v. Jones, 8 Bing. 65; Stewart v. Mather, 32 Wis. 344; Barnstein v. Lans, 104 Mass. 214. In the absence of an express agreement as to the rate or amount of the commissions, it may be established by the cus- tom or usage of the trade, at the place, or in the business, where the agent is employed. EicJce v. Meyer, 3 Camp. 412; Cohen v. Payet, 4 Camp. 96; Roberts v. Jackson, 2 Stark. (N. P.) 225; Peed V. Pa/m, 10 B. & C. 438. If there be no express agreement, and no controlling custom, then the value of the services will be assessed upon the princi pie of paying what they are fairly worth under the circumstan- ces of the particular case. Mangum v. Ball, 43 Miss. 288; Briggs v. Boyd, 56 N. Y. (11 Sick.) 289, 295. § 3. Service before payment. Where the compensation is to be paid by way of commissions, the general rule is, that the whole service or duty must be performed, before any right to commissions arises. McGa-docJc v. Woodlief, 20 How. (U. S.) 221; Walker v. Tirrell, ioi Mass. 257; 3 Am. Rep. 352; Earp v. Cummins, 54 Penn. St. 394; Sattertliwaite v. Vreeland, 3 Hun, 152; 5 K Y. S. C. (T. & C.) 363; 48 How. 508. An agent may, under some circumstances, recover pay for what he has done, even though the service undertaken has not been completed, if the act of the principal has prevented the performance of it. Briggs v. Boyd, 56 N. Y. (11 Sick.) 289, 294; Durkee v. Vermont Central Railway Co., 27 Vt. 127; Gil- lespie V. Wilder, 99 Mass. 170. .Vn agent or broker who undertakes to sell property for an- other for a certain commission has earned, and ma}^ recover, his commission, when he finds a purchaser willing to purchase at the price fixed, even though the sale was never completed, where ihe failure to complete it was in consequence of a defect of title, or other cause produced by the act, omission or fault of the ven- dor, without any fault on the part of the agent or broker. Doty V. Miller, 43 Barb. 529; Keys v. Johnson, 68 Penn. St. 42; Olentworth v. Luther, 21 Barb. 145; Simonson v. Kissick, 4 Daly, 143; Tyler v. Parr, 52 Mo. 249; Jones v. Adler, 34 Md. 440 ; Phelan v. Gardner, 43 Cal. 306; Lincoln v. McClatcJde, 38 Conn. 136. And if the principal makes a sale of the property to a person who was induced to make the purchase by the acts of the agent, AGENCY. 271 he will be entitled to his commission, as tlie principal will not be permitted to evade the payment of what is justly due for services fully and fairly performed by the agent so far as he was permitted by the principal. lb. § 4. Faithful discharge of duty before payment. An agent is not only bound to perform his contract according to its terms, but he must also conduct himself with entire good faith toward his principal. And, if he is employed in the performance of a particular business transaction, in which he is guilty of bad faith toward his principal, he will forfeit his commissions. Sumner v. Heicke- niJcer, 9 Kansas, 320; Porter v. Selvers, 35 Ind. 295; Yennuni v. Gregory^ 21 Iowa, 326; Segar v. Parrish, 20 Gratt. 672; Ever- heart v. Searle, 71 Penn. St. 256. And, where the conduct of the agent is not such as to deprive him entirely of compensation, his conduct will be carefully scru- tinized by the courts, which will fully protect the principal's inter- ests and rights. Gallup v. Merrill, 40 Yt. 183; Sampson v. Somer- set Iron WorTcs. 6 Gray, 120; Jones v. Hoyt, 25 Conn. ^74; Wood- ward V. Suydam, 11 Ohio, 362. § 5. Adverse interests, or acting for two parties. It ha& beeL seen, ante, 245,, that an agent is not permitted to act in a man uer which is adverse to the interests of his principal. And, if he agrees separately with each of the parties for a compensation from each, without the knowledge of his principal, he will not be permitted to recover any compensation from either of them. E^erTteart v. Searle, 71 Penn. St. 256; Place v. Green- man, 6 N. Y. S. C. (T. & C.) 681; 4 Hun, 660; but see Eupp v. Sampson, 16 Gray, 398 ; cited, ante, 248, § 12, with other cases, in which it is held that one who acts as a mere middleman, and not as an agent, may recover snch compensation as is promised to him. If an agent acts for both parties in making a contract, the contract is not void, but voidable, and if the principal would repudiate it, he must do so within a reasonable time. Green- wood V. Sjpring, 54 Barb. 375. § 6, Reimbursement and indemnity of agents. An agent is entitled to claim from his principal a reimbursement for all ad- vances, expenses, and disbursements made by him in the course ' of his agency, for the benefit, or on account of his principal, if such advances or expenses are reasonable and just. Ramsay V. Gardner, 11 Johns. 439; Colley y. Merrill, 6 Greenl. 50; Gid- dings v. Sears, 103 Mass. 311; Wynkoop v. Seal, 64 Penn. St 272 AGENCY. 361; Mears v. Adreon, 31 Md. 229; McCroslcey v. ATabey, 45 Ga. 327. So where an agent who is acting in good faith, and without fault, in the proper service of his principal, is subjected to expense, or is sued on a contract made by him, or for an act done pursu- ant to his authority, the princiijal is bound by law to indemnify and reimburse him for the expense. Powell v. Trustees of New hurg, 19 Johns. 284; Howe v. Buffalo, N. Y. & Erie R. R. Co., 37 N. Y. (10 Tiff.) 297; 4 Trans. App. 249; Turner v. Jones, 1 Lans. 147; Storking v. Sage, 1 Conn. 519; Delaware Ins. Co. v. Delaunie, 3 Binn. 295. But, if an agent needlessly, officiously, and without authority, makes advances, or incurs expenses, he will not be entitled to reimbursement. Rickering v. Demerritt, 100 Mass. 416; Day V. Holmes, 103 id. 306; Howards. Tucker, 1 B. & Ad. 772. § 7. Loss or damage sustained for principal. Where dama- ges are incurred, or losses are sustained by an agent, without his fault, in the management or transaction of his principal's busi- ness, or in following his instructions, the principal must sustain the loss or damage, and indemnify the agent if he has been com- pelled to pay them. D'' Arcy v. Lyle, 5 Binn. 441-455; 1 Am. Lead. Cas. 856, (711) ; ante, 241, 244, § 6. If an agent, in consequence of a deception practiced on him by his principal, innocently incurs a risk or responsibility, and is compelled to pay damages to a pur- chaser in consequence, he will be entitled to reimbursement from his principal. Teatman v. Gorder, 38 Mo. 337. So an agent may recover from his principal damages sustained in defending a suit on the principal's behalf, if the agent was acting within the scope of his authority, and the loss arose from the fact of the agency, and without any fault or laches on his part. Frix- ione V. Tagliaferro, 34 Eng. Law & Eq. 27; 10 E. F. Moore (P. C), 175. And it is not material that the agent exceeded his instruc- tions, if the excess was expressly waived by the principal. lb. If an agent commits a trespass or does any other wrong to the property of a third person, by the direction of his principal, without any knowledge or suspicion at the time, that the act is a trespass or wrong, but he acts in good faith in the matter, he will be entitled to a reimbursement from his principal of all the dam- ages he has sustained in consequence of such acts. Adamson v. .Jarms, 4 Bing. ^*6; Powell v. Trustees of Newhurg, 19 Johns. 284 ; Cooeiitry v. Barton, i 7 id. 142 ; Axery v. Halsey, 14 Pick. 174 ; Oower v. Emery, 18 Me. 79. AGENCY. 273 Any loss growing out of the use of the principal's fund, in pursuance of his directions, will fall on the principal and not upon the agent. Hamilton v. Cook County^ 4 Scam. (111.) 519. To entitle an agent to claim a remuneration from his principal, for a loss sustained by the agent, he must have been acting strictly in the place of the principal, in accordance with his will, and the business must be that of the principal, and not that of the agent. Corhin v. American Mills^ 27 Conn. 274; Saxeland V. Green, 36 Wis. 612. § 8. Illegal acts. Where the instructions or orders of a prin- cipal are illegal, and are known by the agent to be such, he can- not maintain an action against the principal for indemnity as to such acts as are done under such orders or instructions. Trus- tees of Newhurg v. Oalatian, 4 Cow. 340 ; >S'^. Joftn v. >S^^. JohnJs (Jhurch, 15 Barb. 346; see, also, Illegality ; Indemnity. § 9. Power of agent to pledge goods. At common law, and independently of a statutory authority to the contrary, an agent has no authority to pledge or to sell his principal' s property for the debts of such agent. Bonito v. Mosquera, 2 Bosw. 401; Van Amringe v. Peabody, 1 Mason, 440; Warner v. Martin^ 11 How. (l/. S.) 209, 224 ; Parsons v. Wehh, 8 Greenl. 38; Morris V. Watson, 15 Minn. 212; Foss v. Bohertson, 46 Ala. 483; see further, Lausatt v. Lippincott, 6 Serg. & R. 386; 1 Am. Lead. Cas. 805-821. The powers of factors in relation to the sale or pledg- ing of goods belonging to their principals is regulated by statute in many of the States. See Factor; Pledge. ARTICLE XII. OF THE LIEN OF AGENTS. Section 1. Of an agent's lien in generaL An agent's lien is the right to detain in his possession the property of another until his claims upon it are satisfied. Liens may be created by express contract. Mc Caffrey v. Wooden, 62 Barb. 316; Milli- man v. Neher, 20 id. 37, 40, but they generally arise by opera- tion of law. Chambers v. Davidson, L. R., 1 P. C. 296 ; 4 Moore's P. C. (N. S.) 158 ; Kirchner v. Yenus, 12 Moore's P. C. 158. In this particular the rules of equity are the same as those of the common law. OxenTiam v. Esdaile, 2 Younge & Jarv. 493 : 3 id. ^(^■i : 3 B. & C. 225. :^ 2. Particular liens. Liens may be general or particular. A lien is particular when it is confined to work done on a particu- VoL. L — 35 274 AGENCY. lar article, by the workman, or for some expense incurred or be Btowed upon it. The general rule is, that any person who is employed to put Ms labor or money into a thing on his employer's account, has a right to detain such thing until he is paid for the outlay or services. Wilson v. Martin, 40 N. H. 88, 91 ; Morgan v. Cong- don, 4 Comst. 552; United States Exp. Co. v. Haines, 67 111. 139; Nei^an v. Roiojy, 8 Iowa, 207; Farrington v. Meek, 30 Miss. 578. § 3. General liens. A general lien is one which covers the indebtedness of the principal to the agent on a balance due upon the accounts of the parties. It is a right to retain a thing not merely for the charges or claims arising out of, or connected with, that particular thing, but also for a general balance of accounts between the parties, in respect to other dealings of a like nature. Myer v. Jacobs, 1 Daly, 32. A general lien is not allowed for any items of account or debts except such as are incurred upon the general account, and does not include items wholly disconnected with the business of the agency. McKenzie v. Nemns, 22 Me. 138 ; Jarms v. Rogers, 15 Mass. 389. The law does not favor general liens ; and, it is said, that a general lien cannot be claimed according to any general law of principal and agent, but only as arising from dealings in some particular trade, as to which a custom to that effect has been established. Bock v. jflarrissen, 2 De Gex, Fish. & Jones, 434, 443 ; Story on Agency, §§ 354, 355. See Winter v. Colt, 7 N. Y. (3 Seld.) 288. The instances in which general liens are allowed usually relate to transactions with factors, insurance brokers, bankers, common carriers, attorneys, and some others. The right of lien in such cases will be considered when treating of those titles, and under the general title Lien. § 4. Lien, how acquired. As a general rule no valid lien can be created except by the act or consent of the owner of the prop- erty, or by some one who has a right or authority to do so. And, therefore, one who is not the owner of property, or who has no righful power to dispose of, or to create a lien upon it, or, if he exceeds his authority, or is a mere wrong-doer, or his j^os- session is tortious, he cannot, ordinarily, create a lien, or confer it upon others. A different rule would enable a party to give to others a right or title which he himself did not possess, in violation of the maxim, that no one can transfer to another any greater right AGENCY. 275 than lie himself has. Broom's Leg. Max. 467, 46b , Hoffman V. Car 010, 22 Wend. 285, 294 ; Barnard v. Camphell, 55 N. Y. (10 Sick.) 456, 462. An agent or factor cannot pledge his prin- cipal's goods to secure his own debt. And, where goods come into an agent's hands, without the owner's consent, the agent cannot detain them until his charges and expenses are paid. Travis v. Tliompson, 37 Barb. 236 ; Robinson y. BaJcer^ 5 Cush. (Mass.) 137 ; dark v. Lowell and Laiorence R. R. Co., 9 Gray, 231. To constitute a valid lien there must be an actual or a con- structive possession of the property or thing by the party who claims it, with the express or implied assent of the party against whom it is claimed. Winter v. Coit, 7 N. Y. (3 Seld.) 288 ; Hall V. Jackson. 20 Pick. 194, 197 ; HoTbrook v. Wight, 24 Wend. 169 ; Kollock V. Jackson, 5 Ga. 153, 155 ; Elliot v. Cox, 48 id. 39. A constructive possession may be as valid as an actual possession, as where the property or thing is in the possession of his ser- vant or agent, or where the lien is created by a bill of lading, or by a bill of sale, or by some other similar act or instrument. lb. Where property is lost or stolen, and the owner offers a specified snm as a reward to any person finding or restoring it, the per- son who finds or restores it, has a lien upon it until the reward is paid. Cummings v. Gann, 52 Penn. St. 484; WeniiDorth v. Day, 3 Mete. (Mass.) 352. But where the offer is merely to pay " a liberal reward," there is no lien. Wilson v. Guyton. 8 Gill. 213. § 5. Upon what demands a lien may be had. It may be said gen erally that liens do not attach to any but certain and liquidated demands ; and that where thej^ sound only in damages and can only be ascertained through the intervention of a ^uvy, no lien attaches. Story on Agency, § 364 ; Wilson v. Guyton, 8 Gill. 213. But a lien may be given in such a case by virtue of a spe- cial agreement to that effect. Drinkwater v. Good-win, Cowp. 251. An agent who is not employed for a continuous service, but merely to do something to a particular thing, will not have a lien upon such thing for any services except such as are bestowed upon or connected with it. Cecil Bank v. Farmers'' Bank, 22 Md. 148 ; Thacher v. Hannahs, 4 Rob. 407 ; Castellain v. Tltomp- son, 13 C. B. (N. S.) 105 ; Adams v. Clark, 9 Cush. 2U ; Scott V. Jester, 8 Eng. (Ark.) 437 ; Somes v. British Bmj'- 3 Snipping Co., 8 H. L. Cas. 338; S. C, E. B. *& E. 3.53. 276 AGENCY. No lien can be eniorced for the security or paymeni of an ille- gal demand. See Illegality. § 6. Waiver of lieu^ or of right to it. The nature of the contract ma^y be such that no right of lien attaches, as where services are rendered or money advanced upon property on an express agree- ment that the services and advances are made upon the personal credit of the owner of the property, or where a credit is given for a specified time- Stoddard Woolen Manuf. v. Huntley^ 8 N. H. 441 ; Chandler v. Belden, 18 Johns. 157 ; Trust v. Plrsson, 1 Hilt. 293 ; Gnmmings v. Harris^ 3 Vt. 244. An existing lien may be waived by an express agreement to accept other securities in the place of such lien, whether such securities be upon other property or upon the personal respon- sibility of another person. Bailey v. Adams. 14 Wend. 201 ; Murphy v. Lippe^ 3 Jones & Sp. 542 ; Foltz v. Peters, 16 Ind. 244 ; Hutchinson v. Olcutt, 4 Vt. 549. A person who has a lien upon goods will waive it by volun- tarily surrendering them to the owner ; for, since the right is founded upon possession, a surrender of that possession . to the owner will terminate the right. Brackett v. Hay den, 15 Me. 347 ; Sears v. Wills, 4 Allen, 212 ; Bigelow v. Heaton, 4 Denio, 496 ; Sawyer v. Lorillard, 48 Ala. 332 ; Bailey v. Quint, 22 Vt. 474. The goods may, however, be transferred upon an express agreement that the lien shall be retained, as where he delivers them to a third person as a security, with a notice of his lien, and who is to hold and j)Ossess them as his agent for the pur- pose of preserving the lien. Urquhart v. Mclr^er, 4 Johns. 103; Clemson v. Davidson, 5 Binn. 392; Donald v. Suckling, L. K,., 1 Q. B. 585 ; Nash v. Mosher, 19 Wend. 431. The possession of the factor's or the agent's carrier or agent is the possession of such factor or agent. HolbrooTi v. Wight, 24' Wend. 169, 175. And for the purposes of a lien, a constructive is as effectual and valid as an actual possession. Kallock v. Jackson, 5 Ga. 153, 155. The indorsement and delivery of a bill of lading is a sufficient possession of the property mentioned or described in it. First National Bank of Cincinnati v. Kelly, 67 N. Y. (12 Sick.) 34; Rice V. Austin, 17 Mass. 197. Although a return of the possession of goods to the owner by one who has a lien upon them is a waiver of the lien, yet. if the AGENCY. 277 owner restores them to the party so having the previous lien, the lien will be revived or restored. Moody v. Webster^ 3 Pick. 424, 426 ; Spring v. South Carolina Ins. Co., 8 Wheat. 268. But see Grinnell v. Cool^, 3 Hill, 485, 492. In such case the goods w^ould be subject to any other lien or incumbrance which may have attached while they were in the owner's possession and before their return to the party having the prior lien. lb. Perkins v. Boardman, 14 Gray, 481. Where a lien is lost or destroyed, it is the same as though it had never existed. lb. Pilaris v. LeacJiman, 20 Ala. 662. § 7. Enforcing Lien. Generally, a lien is nothing more than a right of retaining the possession of the property subject to the lien ; and the party entitled to such lien cannot sell or dispose of the property for the purpose of satisfying his lien, without the express or implied consent of the owner. Briggs v. Boston & Lowell R. R. Co., 6 Allen, 247; Fox v. McGregor, 11 Barb. 41 The remedy in such cases is by a foreclosure of the lien in a court having proper authority for that purpose. lb. See Laws of N. Y., 1869, ch. 738, providing for the enforcement of liens. Property pledged may be sold by the pledgee, after personal notice to the pledgor ; and if such notice cannot be given, the remedy is in equity. Stearns v. Marsli, 4 Denio, 227 ; Bryan V. Baldwin, 52 N. Y. (7 Sick.) 232 ; Porter v. Parks, 49 N. Y. (4 Sick.) 564 j Sitgreaves y. Farmers & Mechanics^ Bank, 49 Penn. St. 359. Factors generally have a right to sell the property in their hands for the purpose of reimbursing themselves for advances, expenses, and the like proper charges. See Factors ; Lien. The lien of a mechanic is a mere right of retainer, personal to the party in whom it exists, and it is not assignable nor attach- able as personal property, or as a chose in action, of the person entitled to it. Lovett v. Brown, 40 N. H. 511 ; Holly v. Hugge- ford, 8 Pick. 73, 76; Daubigliny v. Bursal, 5 T. R. 606. § 8. Lien of sub-agent. A sub-agent, who is a mere servant of the primary agent, bears no personal relation to the principal, and has no lien against him. Story on Agency, § 388 ; Wh-irt. on Agency, § 827. 278 AGENCY. ARTICLE XIII. EIGHTS OF AGENTS AS TO THIRD PERSONS. Section 1. Rights iu general. The rights of agents in relation to third persons are generally such as arise out of contracts made by the agent with them, or out of torts committed by such per- sons against the rights or property of the agent while acting in that capacity. The right of action may sometimes be vested in the agent, sometimes in the principal, and in some cases, either of them may sue. As the agent, as a general rule, merely rep- resents his principal, so the rights accruing from the business of the agency are generally enforced by the principal. Where an agent, in the sale of his principal's property, binds himself per- sonally, he does not acquire any greater rights against the pur- chaser than he would if contracting for the sale of his own prop- erty. Ewit V. Bancroft, 22 Ohio St. 172. § 2. Right of agent to sue in his own name. Agents who openly act as such, and who name their principals, do not usually incur any personal liability, ante, 256, and, therefore, cannot be sued upon such contracts. So, on the other hand, in such cases the right of action upon the contracts is vested in the principal, and not in the agent. Familiar instances are numerous enough, as in the case of a clerk who sells goods in a store or shop, or any other similar case, in which the right of action for the price of the goods is in the principal and not in the clerk. And, on the other hand, any right of action by the purchaser in relation to the title or quality of the goods sold, or any other right of action growing out of such contract of sale, must be enforced against the principal, and cannot be enforced against the clerk or agent. These, however, are general rules, and they do not govern every case of contracts made by agents. It has been seen, ante, 2.56, that agents may be liable to be sued upon contracts made by them ; and we shall see that there are also instances in which the agent may sue in his own name upon contracts made by him as agent. The cases in which agents may sue upon contracts made by them are usually classified in the following manner : First, where the contract is a written one, and is made expressly with the agent, and purports to be a contract personally with him, although it may be known by the other party that he is acting as a mere agent ; Secondly, where the agent is the only known AGENCY. 279 or ostensible principal, and, therefore, is, in legal effect the real contracting party ; Thirdly, where by the usage of trade, or the general course of business, the agent is authorized to act as the owner, or as a principal contracting party, although his char- acter as agent is known ; Fourthly, where the agent has made a ('ontract, in the subject-matter of which he has a special interest or property, whether he professed at the time to be acting as agent for himself, or not. Story on Agency, § S93. In such cases the agent acquires personal rights which he may enforce by an action in his own name, without regard to the question v/hether his principal has not similar rights upon the same contracts. In the first class of cases an illustration is found in those instances in which a promissory note, or other commer- cial paper, is made payable to an agent in his own name. Upon such a note the agent may maintain an action in his own name, although at the time it was given, he was known, by the party giving it, to be acting as the agent of another person. Flshv. Jacobsohn, 2 Abb. Ct. App. 132; 1 Keyes, 539; Consid- er ant V. Brisbane, 22 N. Y. (8 Smith) 389, 393; Bvfficm v. Chad- wiclc, 8 Mass. 103; Johnson v. Catlin, 27 Yt. 89; McConnell v. TJiomas, 2 Scam. (111.) 309, 313; Moore v. Penn, 5 Ala. 135; Jack- son V. Heath, 1 Bailey, 355. The agent's right to sue in his own name, where the instrument is in terms payable to him, is the same whether it be a promis • sory note, bill of exchange, check, bill of lading, policy of in- surance, bond, and the like instances. lb. Van Staphorst v. Pearce, 4 Mass. 258 ; Sargent v. Morris, 3 B. & Aid. 279, 280 ; Blancliard v. Page, 8 Gray, 281 ; Griffith v. Ingledew, 6 Serg. k R. 429 ; Offley v. Warde, 1 Lev. 235. If negotiable paper is indorsed in blank, and then placed in the hands of an agent for collection, he may sue upon it in his own name. Brigham v. Marean, 7 Pick. 40 ; Gurnsey v. Burns, 25 Wend. 411; PJielan v. Moss, 67 Penn. St. 59; S. C, 5 Am. Rep. 402; Hamilton v. Vought, 34 N. J. 187; United States V. Dugan, 3 Wheat. 172, 180. Where it is doubtful, upon the face of the instrument, whether the parties to it intended that the right of action upon it should be in the principal or in the agent, it is quite generally lield that either of them may sue upon it. Dupont v. Mount Pleasant Ferry Co., 9 Rich. 255, 259; Rutland & Burlington B. P. Co. v. Cole, 24 Yt. 33; Griffith v. Ingledew, 6 Serg. & R. 429; Herndon 280 AGENCY. V. Taylor^ 6 Ala. 461 ; Story on Agency, § 395 ; Whart. on Agency, § 439. The true rule is, for the court to examine the whole instru- ment, and from that to determine what was the actual intention of the parties, as to the party who was to have the right to en- force it. When the instrument is in writing the construction is for the court, and upon the entire instrument, ante^ 122 ; see 1 Am. Lead. Cas. 773-778 (641-646). In the second class of cases, in which the agent acts in his own name without disclosing any other principal, it is clear that the opposite contracting party is personally bound to the agent, and that the latter may enforce the contract, Bickerton v. Burrell^ 5 Maule & Selw. 383; BaynorY. Grote, 15 M. & W. 359; Dicey on Parties, 144, 184. One who contracts in reality for himself, but apparently as agent for another person, whose name he gives, cannot sue on the contract as principal. lb. Boulton v. Jones, 2 H. & N. 564; Sclimaltz v. Avery, 16 Q. B. 655. In the third class of cases, where by the usage of trade, or the general course of business, the agent, though known to be acting as such, is dealt with, as if he were the principal, so that the con- tract is a personal contract with him, it is not material whether the contract is considered as one exclusively made with the agent, or whether the real principal, as an implied party, has a right to enforce, or to avail himself of the contract. In the fourth class of cases, in which the agent has an interest or property, he may sue in his own name for the enforcement of the contract. Sargent v. Morris, 3 B. & Aid. 276, 280, 281; Leeds v. Marine Ins, Co., 6 Wheat. 565; Kent v. Bornstein, 13 Allen, 342; Evrit y. Bano'oft, 22 Ohio St. 172; Whitehead v. PoUer, 4 Ired. 257. Factors may enforce their liens by a sale of the property iu their possession. See Factors; Liens. § 3. Principal may control actions. Although agents may, in many instances, bring actions in their own names upon contracts made by them, this does not give them an unlimited right as to the management or control of the action. The right of the agent to bring actions is always a subordinate one which may be directed and controlled hy the principal. And whenever a principal intervenes by bringing an action in his own name, the powers of the agent are sup8 ; Villers v. Ball, 1 Show. 7 ; Lewis v. Price, cited 2 Saund. 175. But in order that lights may be entitled to this special protection, they must be ancient; and it would seem from some of the early English cases just cited, that lights of thirty or forty years' standing were not to be deemed ancient within the requirements of the old rule on the subject. However this may have been formerly, the period of prescription or limitation became shortened in modern times, and it was stated, as settled law, that twenty years' quiet and uninterrupted possession of window lights was sufficient ground for a jury to presume a grant or covenant, pro- vided there was evidence that the owner or landlord (and not the tenant, merely) of the opposite premises had knowledge during the twenty years of the fact. Daniel v. North, 11 East, 371 ; BacTc V. Stacy, 2 Russ. 121 ; Lanf rancid v. MacKenzie, L. R., 4 Eq. 421; Livett v. Wilson, 3 Biug. 115; Bar7cer\. Richardson, 4 B. & A. 579 ; Cross v. Lewis, 2 B. & C. 686 ; S. C, 4 D. & R. 234 ; 4 Kent's Com. 448. The doctrine has been stated at length that, if a man build a house upon his own land, near that of his neighbor, and place windows in his house, through which the light from over his neighbor's land passes in, though in thus ap- propriating this light he commits no ouster or disseizin, and is ANCIENT LIGHTS. 29B guilty of no wrong remediable by action, and though bis neigh- bor has no means of defeating this enjoyment but by building a wall on his own land, which shall obstruct its passage, yet if he abstains from doing so and permit the use and enjoyment of the light passing through the windows for a great length of time (fixed by many cases at twenty years in analogy to the statute of limitations, as to the possessory title to land), the presumption of right will be indulged in favor of this long possession, and in the absence of countervailing circumstances, will be held conclu- sive ; and he will be subject to an action if he subsequently ob- struct these ancient lights by building a wall even upon his own land. Manier v. Myers, 4 B. Mon. (Ky.) 514, 520 ; see, also, McCready v. Thomson, Dudley (S. C), 131 ; Oerher v. Grabel^ 16 111. 217 ; Mahan v. Brown, 13 Wend. 251. Such is the doc- trine of the English common law, as it has been recognized and applied by the English courts prior to any statutory provisions on the subject. § 2. By statute in England. An English statute now provides that, " when the access and use of light to and from any dwell- ing-house, workshop, or other building shall have been actually enjoyed for the full period of twenty years, without interrup- tion, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary, notwithstanding, unless it shall appear that the same was enjoyed by some con- sent or agreement, expressly made or given for that purpose, by deed or writing." 2 and 3 Will. 4, c. 71, s. 3. The right to "ancient lights" now depends upon this statute, and not upon any presumption of grant or fiction of license ; and being an absolute, indefeasible, and unqualified statutory right, cannot be lost by a subsequent intermission of enjoyment, not amount- ing to intentional abandonment, nor can it be prejudiced by an attempt to extend the access of light beyond that access which has so become indefeasible. Tapling v. Jones, 11 H. L. Cas. 290 ; S. C, 20 C. B. (N. S.) 166 ; 34 L. J., C. P., 344 ; and see Bar- bridge v. Warwick, 3 Exch. 556; S. C, 18 Law J., Exch., 245; Might V. Thomas, 8 CI. «fe Fin. 231. § 3. Implied grant. It is a well-settled rule of the common law, that wherever the owner of land has, by any artificial arrangement, created an advantage or incident for the benefit of one portion to the burdening of the other, upon a severance of the ownership, the holders of the two portions take them respect- ively charged with the servitude and entitled to the benefit 294 ANCIENT LIGHTS. openly and visibly attached at the time of the conveyance of the portion first granted. United States v. Appleton, 1 Sumner, 492; Lampman v. Milks, 21 N. Y. (7 Smith) 505 ; Butterworth v. Crawford, 46 N.Y. (1 Sick.) 349; S. C, 7 Am. Rep. 352 ; Story v. Odin, 12 Mass. 157; Evart v. Cochrane,! Jur. (N. S.) 925; Hall V. Lund, 1 H. & Colt. 676 ; Pyer v. Carter, 1 H. & N. 916. As it regards easements for light and air over the premises of another, this rule has been frequently applied in England. Gen- erally, if the owner of a building has windows overlooking an adjoining lot, the owner of the latter may build directly in front of the windows so as entirely to obstruct their light, unless they are shown to be ancient. If, however, both proprietors obtained their title from a common source, the same grantor having con- veyed the tenement with the windows to one, and the ground overlooked to another, the windows cannot be obstructed. And the reason assigned is, that the relative qualities of the two tenements must be considered as fixed at the time of their sever- ance ; each retains, as between it and the other, the properties then visibly attached to it, and neither party has a right after- ward to change them. Cox v. Matthews, Yentris, 237 ; Palmer V. Fletcher, 1 Lev. 122 ; Compton v. Richards, 1 Price, 27 ; Car- ham V. Fislc, 2 Cr. & J. 128 ; Swanshorough v. Coventry, 9 Bing. 306; Boswell v Pryer, 6 Mod. 116 ; S. C, 12 id. 215. Hubbard V. Town, 33 Yt. 295 ; Lampman v. Milks, 21 N. Y. (7 Smith) 505. The time during which the lights have been enjoyed has nothing to do with the rule in these cases. Whether they have existed for twenty years or for a single day, they are equally protected. Id. Rohhins v. Barnes, Hob. 131 ; Coutts v. Graham, 1 Mo. & Mai. 396. A free passage over the vendor's adjoining unsold land for so much light and air as may be reasonably nec- essary for the beneficial occupation and enjoyment of the house is impliedly granted by the vendor, unless the privilege is ex- cluded by the express terms of the conveyance. See cases cited above ; Add. on Torts, 94. ARTICLE II. OP AMEBICAN OASES SIMILAR TO THE ENGLISH EtJLB. Section 1. As to ancient lights. It is clear that no easement or servitude of a right of prospect can be acquired at common law by any mere length of enjoyment. Hence, an action doea not lie for obstructing a view, unless upon express covenant ANCIENT LIGHTS. 296 Harwoodv. TompMns, 24 N. J. L. (4 Zabr.) 425; Parker -7. Foote^ 19 Wend. 309. But the English doctrine of a right to lights over- looking another's ground, acquired by long user, upon a pre- sumption of a grant, or otherwise, has been maintained in a num- ber of early American cases, and is recognized as existing law in the States of Illinois, New Jersey and Louisiana. See Oerher v. Grabel, 16 111. 217 ; Robeson v. Maxwell, 2 N. J. Eq. (1 Green) 67 ; Barnett v. Johnson, 15 N. J. Eq. (2 McCart.) 481; Durel v. Boishlanc, 1 La. Ann. 407. So, this doctrine was assumed to be the law in South CsiToluvd in McCready v. Thomson, Dudley, 131. But, in a subsequent and more carefully considered case {Napier V. BulwinTcle, 5 Rich. 311), the doctrine was discarded. Like- wise, in Alabama, the English doctrine was sustained in Bay v. Lynes, 10 Ala. 63; since overruled, however, in Ward v. JYeal, 35 Ala. 602; S. C, 37 id. 501. With the exceptions above noted, the English doctrine of an- cient lights has not been adopted in this country. On the other hand, the doctrine has been expressly rejected in numerous well- considered cases, as being inapplicable here, because, if adopted, it would greatly interfere with and impede the rapid changes and improvements constantly going on in our cities and villages. See post, 290, art. 3. § 2. As to implied grant. The English doctrine as to the acqui- sition of easements to light, by implied grant {ante, § 3), has been fully accepted in some of the American cases, while in others it has been wholly rejected or its existence denied. In Story V. Odin, 12 Mass. 157, which is believed to be the earliest American case in w^hich the doctrine is discussed, the law was stated in accordance with the English authorities. But, in a very recent Massachusetts case, all the authorities, including that of Story v. Odin, supra, are carefully reviewed, and, as a result, the law is stated to be, that no grant of any right of light or air over adjoining lands is to be implied from the conveyance of a house, having windows overlooking land retained by the grantor. Keats v. Hugo, 115 Mass. 204; S. C, 15 Am. Rep. 80. In a late case in Ohio, the same conclusion was arrived at, and the weight of American decisions was stated to be in accordance therewith. Mullen v. Strieker, 19 Ohio St. 135; S. C, 2 Am. Rep. 379. In confirmation of this statement, see Morrison v. Mar- quardt, 24 Iowa, 35; Haver stick v. Sipe, 33Penn. St. 368; Doyle V. Lord, 39 Sup. Ct. (N. Y.) 421; affirming S. C, 48 How. 142; Johnson v. Oppenheim, 55 N. Y. (10 Sick.) 280, 293; Myers v. 296 ANCIENT LIGHTS. Oemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. (N. Y.) 316. In Maryland the English doctrine is, however, sustained, and the easement and servitude of light may be implied from grant. Thus, it is held that, by the grant of a lot and all the rights, "privileges, appurtenances and advantages to the same belong- ing or in any wise appertaining," is passed the easement of light and air as to windows previously opened toward another lot of the grantor; and the existence of the easement and the enjoyment thereof by the grantee is no breach of a special warranty con- tained in a subsequent deed of the other lot to another grantee. Janes v. Jenkins^ 34 Md. 1; S. C, 6 Am. Rep. 300. And see, in support of this doctrine. United States v. Appleton^ 1 Sumner, 492; Thurston v. Mink, 32 Md. 487; Lampman v. Milks, 21 N. Y. (7 Smith) 505 ; Oregon Iron Company v. TrulUnger, 3 Ore- gon, 1; Biddies. Ash, 2 Ashm. (Penn.) 211. ARTICLE III. OF THE AMERICAN" RULE. Section 1. In general. The English doctrine of" ancient lights," or prescriptive right to light and air by long user, is but partially recognized as existing in a few of the American States. See ante, 295, art. 2, § 1. By the course of decision in most of the States, it is declared to form no part of the law of this country. It is wholly unsuited to the condition of our growing cities and villages, and cannot be applied to them without working the most mischievous consequences. See Parker v. Foote, 19 Wend. 309; Pierre v. Fernald, 26 Me. 436; Mullen v. Strieker, ^ 19 Ohio St. 135; S. C, 2 Am. Rep. 379; Cherry v. Stein, 11 Md. 1; Ward V. Neal, 37 Ala. 600; Hubhard v. Toton, 33 Yt. 295; Haver stick v. Sipe, 33 Penn. St. 368; Mahan v. Brown, 13 Wend. 261; Myers v. Gemmel, 10 Barb. 537; Powell v. Sims, 5 W. VTIMALS. 299 son V. MocJc, 4 Dev. & Bat. 146; Wheatley v. Harris^ 4 Sneed, 468 ; Wolf V. CJialJcer, 31 Conn. 121 ; Harrington v. Miles^ 11 Kans. 480. The rule is the same as to cats. WTiittingliam v, Ideson, 8 Upper Canada Law Journal, 14. Doves are of a wild nature, and though not the subject of lar ceny in a wild state, they may become property, and subjects of larceny, if they are in the care and custody of a person who has them in his dove cot or pigeon-house, or if they are in a nest and unable to fly. CommonweaWi v. CJiace, 9 Pick. 15. Pigeons may become property, and where they are so tame that they re- turn home every night to roost in wooden boxes hung on the outside of the house of their owner, they are subjects of larceny. Bex V. Brooks, 4 Carr. & Pa^me, 131. Partridges may become property, and when they have been hatched and reared by a common hen, and while they remain with her, they are practi- cally under the power and dominion of the owner of the hen. Heg. V. SpicUe, L. R., 1 C. C. 158 ; 11 Cox' s C. C. 189. A turkey is a domestic animal, and a species of property. Stale v. Tur- ner^ 66 N. C. 618. And the rule is the same as to a peacock. Comrrionwealth v. Beaman, 8 Allen, 497. Oysters planted by an individual in a bed clearly designated and marked out in navigable waters, which are free to all the in- habitants of the State, are the property of the person who planted them. Fleet v. Hegeman, 14 Wend. 42 ; Decker v. Fisher^ 4 Barb. 592 ; Lowndes v. Dickerson, 34 id. 586. Inasmuch as every kind of domestic animal is a species of property, it is not necessary to search for all the cases which have been decided in relation to the various kinds of animala held to be property. And, in relation to wild animals, although not generally prop- erty, when wild, and free, yet when tamed, or when in actual confinement, as in cages, or other mode of actual possession and control, they are as such property as tame animals. The owner of the animals in a menagerie is as much protected in his prop- erty as the owner of the animals or stock upon a farm. § 3. What animals are not subjects of property. There is no absolute property in wild animals, free, and in a state of nature. And whUe they remain at large, and untamed, they are not the subjects of ownership. If they are caught and confined, they are property so long as they are in the possession and under the control of the captor or possessor. But, if they escape, and 300 ANIMALS. regain their natural liberty, the owner's qualified propertj^ ceases, and the animals cease to be property. If, however, wild animals have been tamed, and they stray away from their owner, but without regaining their natural lib- erty, the owner does not lose his property in them. Amory v. Flyn, 10 Johns. 102. § 4. Title to animals, liow acquired. The title to animals may be acquired in any of the modes b}^ which other personal prop- erty is acquired, as by sale, gift, inheritance, and the like. The property in wild animals is in the owner of the land ou which they are started and captured, and not in the captor. Blades v. Higgs, 12 C. B. (N. S.) 501; 8 Jur. (N. S.) 1012; 10 W. R. 318; o L. T. (N. S.) 752; affirmed, 13 B. C. (K S.) 844; 32 L. J. (C. P.) 182; 7 L. T. (N. S.) 834; and in H. L. 11, H. L. Cas. 621;^ 13 W. R. 927; 34 L. J. (C. P.) 286 ; Gofv. Kilts, 15 Wend. 550. Wild bees, in a bee-tree, belong to the owner of the soil where the tree stands. Ferguson v. Miller, 1 Cow. 243; Adams V. Burton, 43 Yt. 30 ; Idol v. Jones, 2 Dev. L. (IS". C.) 162 ; Cock V. Weatlierhy, 5 Sm. & Marsh. 333. The meie finding of a swarm of bees in a tree upon the lands of another, and marking the tree with the initials of the finder's name, does not give him any property in the bees. Gillet v. Mason, 7 Johns. 1 6. So, if a person finds a swarm of bees, in a tree upon the lands of another, who gives him permission to take them, and he then marks the tree with his initials, but does nothing more, this will not entitle him to recover the value of the bees from a third per- son who afterward took them by the permission of the owner of the tree. Ferguson v. Miller, 1 Cow. 243. But, if the finder of the bees is engaged in the act of cutting down the tree, by the permission of the owne**, and while thus engaged, he is driven away from such work and prevented from cutting down the tree, by a third person, who, subsequently to the first license, obtained a license from the ow^ner of the tree to take the bees, but without revoking the first license, the person first beginning to cut the tree will have a superior right to the bees, and may maintain an action against such third person for cutting down the tree and taking away the bees and honey. Adams v. Bur- ion, 43 Vt. 30, 36. If bees have been reclaimed and hived, but leave the hive and go into a tree upon the lands of another person, the owner of the bees may maintain an action against a third person who de- ANIMALS. JjOl etroys the bees and takes the honey. Goff \. Kilts, 15 Wend. 5o0. The owner of the bees retains his title in them so long as he can identify them, and is abl« to regain his possession of tliem. lb. The title to oysters may be acquired by planting, as hasbeec seen, ante, 299, §2, But, a person who plants oysters in navigable waters, opposite to the lands of another person, does not thereby acquire such a possession of them as will enable him to maintain an action against such adjacent owner for taking them away. Brinclierlioff v. StarMns, 11 Barb. 248; see, also, Arnold v. Mundy, 1 Halst. (N. J.) 1 ; State v. Taylor, 3 Dutch. (N. J.) 117; 1 Broom & Had. Com. 799, 800, 436, 437 Wait's ed. The natural increase of domestic animals belongs to the owner of the mother of the animals thus produced. Hanson v. Millett, 65 Me. 184 ; Stewart v. Ball, 33 Mo. 154 ; Concklin v. Havens, 12 Johns. 314. If, however, the dam or mother is hired out for a limited timn. the increase during that period belongs to the hirer of the animal. lb. If the owner of a mare offers the use of her to be put to horse, and promises another person that if he will have her put to horse, and pay the charges for it, he shall own the foal or colt, if any, and such person has the mare put to horse, and pays the charges, and afterward has complete charge and possession of the foal, the title to it will be in him. Linnendoll v. Terhune, 14 Johns. 222. But, if the agreement is such, that, by its terms, it cannot be performed within a year, the agreement will be void by the statute of frauds, and the title to the colt will be in the owner of the mare. Lockwood v. Barnes, 3 Hill, 128 ; Harman v. Reei)e^ 18 C. B. 587. Mere pursuit of a wild animal does not give the pursuer any property in it, and, therefore, no action lies against a person for killing and taking a fox. which was pursued by, and in view of the hunter who found, started and pursued it, and was on the point of seizing it when killed by such other person. Plerson V. Post, 3 Caines. 175. So, a hunter who pursues a deer and wounds it, and follows its track by its blood, until night, when lie abandons the pursuit for the night, but resumes it in the morning, has no title to it as against one who killed it the night before Bnster v. NewMrk, 20 Johns. 75. So where a person is engaged in fishing, and has nearly encompassed a quantity of fish with his net. and a third person, by rowing his boat, and splashing the water about, frightens the fish so that 302 ANIMALS. they escape, no title is acquired to the fish, and no action lies against the wrong-doer for the value of the fish, on the ground that they belong to the owner of the net, or that they were in his possession. Young v. Hichens, 6 Ad. & E. (N. S.) 606. As to the right to take fish, see 1 Broom & Had. Com. 436, 437, Wait's ed. § 5. Title, how transferred or lost. It may be said, generally, that the title to animals may be transferred by any mode which is sufficient to transfer the title to other personal property. It may be transferred by sale, gift, inheritance; or, if the prop- erty be wild animals, then it may be by their escape and return to a state of nature, a7ite, 299, § 3. Whether deer in a park go to the heir with the land, or to the executor, see Morgan v. Abergav- enny, 8 Man. Gr. «& Scott, 768 ; Ford v. Tynte, 2 Johns. & H. 160. When reclaimed they become personal property. lb. ARTICLE IL EIGHTS OF OWNEES OE POSSESSOES OF ANIMALS. Section 1 . Rights of the owner of animals. The rights of the owner of an animal are the same as those of the owner of any other personal property. He may use, sell, or give it away. If it is wrongfully taken, detained, destroyed or injured, he may maintain an action for the recovery of its possession, or for dam- ages for its destruction or injury. See post, 302-306, §§ 3, 4, 5. § 2. Bights of the possessor of animals. It may be said, gen- erally, that the rights of the possessor of animals are the same that they would be in relation to other personal property. A wi^ongful injury to his rights as possessor of the property will give him a right of action against the wrong-doer, according to the nature of the interest of the possessor and the character of the wrong-doer. For wrongfully taking the property from his posses- sion, or for wrongfully detaining it, the law gives the injured party a remedy by action for the recovery of its possession. See Replevin, If the injury to the property is such as to injure the possessor' s rights in it, an action lies for the resulting dama- ges. See Case; Trespass; Trover. § 3. Wrongfully taking animals. The injury arising from a wrongful taking of animals or other personal property is gener- ally an injury to the possession, or the rights of possession. In some cases, it may be desirable to regain the possession of the animal taken, wliile in others a recovery of damages for the wrong would be a satisfactory remedy. Where it is desired to ANIMALS. 303 regain the possession of the property, an action of replevin is usually a prompt and eflBcient remedy. See Replevin. If dam- ages will afford a satisfactory compensation for the injury, an action on the case, or of trespass, or trover, may be resorted to as a remedy. In some cases, the injured party may treat the wrong-doer as though he were a purchaser of the property wrongfully taken by him. The law permits a waiver of the tort, and allows a recovery of the value of the property, in the same manner it would had there been a sale instead of a wrongful taking of such property. See Waiver of Tort; Assumpsit. An officer has no right to detain horses, on the ground that they are running at large, in violation of a town ordinance, where the horses escaped from their owner's inclosure against his will, and when he immediately went in pursuit of them. Kinder v. Oillespie, 63 111. 88 ; see Walters v. Olats, 29 Iowa, 437. An owner of land has no right to detain a domestic animal belonging to a neighbor, which has straj^ed upon his land, on several occasions, and done injury, until he is paid all the dam- ages for such injuries. LaducY. Branchy 42 Yt. 574. His right is limited to removing the animal from his land, or to impounding it according to law. lb. ; Pratt v. Petrie, 2 Johns. 191 ; Sackrider V. McDonald, 10 id. 258 ; Merritt v. O Neil, 13 id. 477 ; Hale v. ClarTc, 19 Wend. 498. A person who finds a horse at large, and takes it into his pos- session and uses it in such a manner that it is injured, will be liable to the owner for such injury. Murgoo v. Cogswell, 1 E. D. Smith, 359. § 4. Wrongful destruction of animals. In many cases the right to maintain an action depends upon the plaintiff's right of possession of the property destroyed. But the real owner of an animal may maintain an action for the injury to his reversionary fights in it, although at the time of its destruction the right of possession for a temporary period was in another person. The owner of a dog may maintain an action against one who wrongfully kills or injures him. Brent v. Kimball, 60 111. 211 ; UTilein v. Cromack, 109 Mass. 273 ; WTieatley v. Harris, 4 Sneed, 468 ; Dodson v. Moclc, 4 Dev. & Bat. L. (N. C.) 146 ; Perry v. Pliipps, 10 Ired. (N. C) 259 ; ParTcer v. Mise, 27 Ala. 480, 483. But no action lies against a railroad company for running ovei and killing a dog which goes upon its track without any author 304 ANIMALS. ity from the company. Wilson v. Railroad Company, 10 Ricli. (S. C.) 52. An action lies for unlawfully killing a cat. WhittingJiam V. Ides on, 8 Upper Canada L. J. 14. So an action lies for killing domestic fowls, such as hens, even though they were trespassing at the time upon the lands of the person who killed them. Matthews v. Fiestel, 2 E. D. Smith, 90 ; Clarlc V. Keliher, 107 Mass. 406 ; Johnson v. Patterson, 14 Conn. 1,11. It is actionable to kill a hog which has killed one chicken, and attempted to kill another, even though found about seventy- five yards from the place where the defendant' s chickens usually ran, and where the hog was killed. Morse v. Nixon, 6 Jones' Law (N. C), 293 ; 1 Broom & Had. 800, note Wait's ed. The right to maintain an action for the wrongful killing of do- mestic animals is so well settled, and so well known, that the citation of authorities seems unnecessary. Actions have been maintained in numerous cases for unlaw- fully killing sheep. Bessant v. Great Western R. Co., 8 C. B. (N. S.) 368. Or horses. Chapman v. New YorJc Central R. R. Co., 31 Barb. 399 ; 33 N. Y. (6 Tiff.) 369 ; Bishop v. My, 9 Johns. 294. See Negligence; Railroads. Or mules. Louisville & Nashmlle R. R. Co. v. Wainsoott, 3 Bush, 149. Or cows or other cattle. McDowell v. New YorTc Central R. R. Co., 37 Barb. 195; Indianapolis, etc., R. R. Co. v. Truitt, 24 Ind. 162; Van Leuven v. LyTte, 1 N. Y. (1 Comst.) 515 ; 4 Denio, 127 ; Angus v. Radin, 2 South. 815. Or swine. Morse v. Nixon, 6 Jones' L. (N. C.) 293. One who sells hay upon which a poisonous substance has been spilt, is liable in damages to the purchaser of the hay, if his cow eats it and is thereby poisoned and killed. French v. Vining, 102 Mass. 132 ; 3 Am. Rep. 440. The general right to maintain an action for wrongfully kill- ing domestic animals is not usually disputed ; but it is claimed that some facts or circumstances in the particular case excused or justified the killing. Actions are frequently brought against railroad corporations for killing animals, and the usual defense is interposed that the animals were wrongfully upon the track, and that the owner's negligence contributed to the result, and bars his right of action. ANIMALS. 305 McDonnell v. Pittsjleld & North Adams R. R.^ 115 Mass. 564; Eames v. Salem & Lowell R. R., 98 id. 560 ; Maynard v. Boston & Maine R. R., 115 id. 458 ; Tonawanda R. R. Co. v. Munger, 5 Denio, 255; 4 N. Y. (4 Comst.) 349 ; New YorJc & Brie R. R. Co. v. Skinner, 19 Penn. St. 298; Cincinnati, etc., R. R. Co. v. Water son, 4 Ohio St. 424; Toioner v. Providence & Worcester R. R., 2 R. I. 404 ; Louisville & Franlifort R. R. v. Ballard, 2 Mete. (Ky.) 177 ; Vandegrift v. Rediker, 2 Zab. 185. It is not to be understood from these cases that an action could not have been maintained if the killing had been intentional ; but merely that an owner who permits his animals to trespass upon a railroad track, must take the chances of their being killed by the trains which are running in a proper manner. lb. ; Shearm. & Redf. on Xeg., § 454. An action will not lie against the owner of land, for carelessly leaving maple syrup in open buckets on his uninclosed wood- land, where the cow of a third person wrongfully enters upon the land, and drinks the syrup, which causes her death. Busti V. Brainard, 1 Cow. 78. Nor for leaving open a hole in the ground of his uninclosed woodlands into which trespassing cat- tle fall. Kniglit v. Ahert, 6 Penn. St. 472. § 5. Wrongful injury of animals. The same principles of law which give a remedy for destroying animals, also give a similar remedy for a wrongful injury done to them. See ante, 303, § 4. A person who chases a horse out of his field with a large fierce dog does an unlawful act, and is liable to the owner of the horse for any injury caused by such act. AmicTc v. CHara, 6 Blackf. 268. A railroad corporation which neglects to provide barriers, or to fence its track according to law, is liable for injuries done to cattle which enter upon its track in such unfenced or unpro- tected place. Keliher v. Conn. River R. R. Co., 107 Mass. 311; see, also, Negligence; Railroads. One who wrongfully drives his horse and wagon against the horse of another who is lawfully in the highway, is liable for the injury done to such horse. Bishop v. Ely, 9 Johns. 294. An action lies against one who hires a horse to go to a particu- lar place, but wrongfully goes farther, or to a different place, and injures the horse in so doing. Dishroio v. Tenhroeck. A:'E, I). Smith, 397 ; Lucas v. Ti^umlull, 15 Gray, 806. The owner of Hie horse may ratify the wrongful act, and will do so by re- ceiving payment for the full distance traveled, so far as it relates to a conversion of the horse. Ritch v. ffaioes, 12 Pick. Vol. I. — 39 306 ANIMALS . 135. If tlie hirer has injured the horse by ill usage :;n the jour- ney, the action must be brought for that. lb. One who hires a horse for a particular journey is only respcn- sible for negligence, unskillfulness, or willful misconduct; and, if the horse becomes lame, or is injured, while properly treated, the hirer will not be liable. Harrington v. 8nyder, 3 Barb. 880; Millon V. Salisbury, 13 Johns. 211. So, one who is employed to drive horses, which are injured while using them, will not be liable for the damages resulting, unless the injury was caused by his negligence, unskillfulness, or willful misconduct, and the burden of proving this lies on the owner of the horses. Newton V. Pope, 1 Cow. 109. § 6. Wrongful conyersion of animals. An action will lie for the conversion of animals whenever an action may be sustained for a wrongful taking of them, or for an unlawful conversion of them, even where the original taking was lawful. See Tres- pass ; Trover. And, as an illustration of a conversion of a horse whose pos- session was lawfully obtained, the hiring of a horse to go to a particular place, and then driving the horse to a more distant, or to different place, will be a conversion of the horse, for which an action will lie. Disbroio v. Tenbroeck^ 4 E. D. Smith, 397; Lucas V. Trumbull, 15 Gray, 306; Fish v. Ferris, 5 Duer, 49. The owner may waive the right of action for a conversion by ac- cepting payment for the full distance traveled. Bitch v Hawes, 12 Pick. 135. § 7. Rights as to mode or place of keeping. It is a general maxim of the law that every person shall enjoy his own prop- erty in such a manner as not to injure that of another person. Broom' s Leg. Max. 365. But, as has already been stated, ante, 143, 144, there are many acts which may be done that are inju- rious to another, and yet the injured party will have no right of action. The owner of land may use it for the purpose of pasturing his sheep which have an infectious disease, and he will not be liable to an adjoining land owner though his sheep become diseased in consequence. Fisher v. Clark, 41 Barb. 329. But, while one has a right to use his own premises as a hospi- tal for his diseased horses, he has no right to permit horses which have a contagious disease to go at large in the highway, or to water them at a public tank used for watering the sound horses of other persons; and, if the horses of such other per- ANIMALS. 307 sons become infected with the disease to the injury of i eir v3wner, an action lies for the damages sustained. Mills v. Neio York & Harlem R. R, Co., 2 Rob. 326; affirmed, 41 N. Y. (2 Hand) 619, 71. And, if the owner of glandered horses takes them upon the farm of another person having sound horses, which become in- fected with the disease, and die of it, an action lies for thus communicating the disease to the sound horses. Hite v. Bland- ford, 45 111. 9; Penton v. MurdocJc, 18 W. R. 382; 22 L. T. (N. S.) 371. So where diseased sheep are permitted by their owner to trespass upon the lands of another person, whose sheep are infected, and die in consequence, an action may be maintained by the injured party against the owner of the trespassing sheep. Barnum v. Vandusen, 16 Conn. 200. And a person who is per- mitted to occupy land, under a mere license, will be liable to an action if he pastures diseased sheep upon it, which communi- cate the disease to the sheep of the licensor, who was ignorant of the nature of the disease, and who was falsely informed by the party pasturing the sheep there, that there was no danger from such diseased sheep. Eaton v. Winnie, 20 Mich. 156; 4 Am. Rep. 377; see, also, Mullett v. Mason, L. R., 1 C. P. 559. The owner of animals must keep them in such a place, and in such a manner that they will not injure other animals. And if he permits a cow, which he knows is accustomed to hook other ani- mals, and it hooks and kills the horse of another person in the highway, while the cow was on the way to her watering place, the owner of the cow will be liable for the value of the horse. Coggsioell v. Baldwin, 15 Yt. 404. So, where a sucking colt is following its dam, which is led by her owner, in a highway, where it is kicked and killed by a horse which has been turned loose in the highway without a keeper, and where the owner of the colt was exercising reasonable care, he may recover the value of the colt from the owner of the horse, although it was not vicious, Barnes v. CJiapin, 4 Allen, 444. ARTICLE III. DUTIES AND LIABILITIES OF OWNERS OE POSSESSORS OF ANIMALS. Section 1. Generally, when owner liable. The common law requires the owners of all animals to so keep or restrain them as to prevent them from trespassing upon the lands of other per- sons. And, if this duty is neglected or disregarded, and his 808 ANIMALS. animals trespass upon the lands of another, an action will de against the owner for such trespass. Stafford v. Tnge7 ^ol, 3 Hill, 38; Angus v. Hadin, 2 South. 815; DolpJi v. Fe/ris, 7 AVatts & S. 367. Mils v. Loftus Iron Co., L. R., 10 C. P. 10; S. C, 11 Eng. Eep. 214, 229, n; McBride v. Lynd, 55 111. 411 ; Pierce v. Hosmer, 66 Barb. 345. But tlie owner of cattle is not liable in trespass for the dam- age done by his cattle while in the care and keeping of an agis- tor who took them to pasture at a specified price. Ward v. Brown. 64 111. 307; 16 Am. Rep. 561; Rossell v. Cottom, 31 Penn. St. 525. Where an injury is caused by an unavoidable accident, as where a team is frightened and runs away without any fault of the owner, no action lies for the damage done by the team. Broion v. Collins, 53 N^. H. 442 ; 16 Am. Rep. 372 ; Western Union Telegraph Co. v. Quinn, 56 111. 319; Shawliam v. Clarice, 24 La. Ann. 390. See ante, 160, 161. § 2. Injuries to persons by domestic animals. As a general rule the common law does not hold the owner of ordinary domestic animals liable for injuries which they do to the person of another, iitnless it is shown that the particular animal was accustomed to injure persons, or had an inclination to do so, to the knowledge of the owner. Earl v. Van Alstine, 8 Barb. 630 ; Smith v. Cau- sey, 22 Ala. 568 ; Dearth v. Balcer, 22 Wis. 73. But where an animal is accustomed to do injuries to persons, and the owner has notice or knowledge of that fact, he is liable for any injury which such animal may do to another person. Fair child v. Bentley, 30 Barb. 147 ; Marsh v. Jones, 21 Vt. 378; Arnold v. Norton, 25 Conn. 92 ; Shirfcy v. Bartley, 4 Sneed, 58; McCasldll V. Elliott, 5 Strobh. 196 ; Barter one v. Mangianti, 41 Cal. 138; S. C, 10 Am. Rep. 269, 270, note. Where the vicious habit of an animal is directly dangerous, as by kicking or biting by a horse, or biting by a dog, or hooking by a horned animal, the owner, if the habit is known to him, ia bound to notify those using, caring for, or dealing with the ani- mal ; though the rule is otherwise where the habit is not danger- ous, as where a horse has a habit of "pulling" back upon the halter when excited or restless. And if such habit should hap- pen to cause injury to one taking care of the horse, without notice of the habit, no action lies. Keshan v. Gates, 2 N". Y. S. C. (T. & C.) 288. A person may keep a dog for the necessary defense of his ANIMALS- 309 house, garden or fields, and may cautiously use him for that purpose in the night-time, but if he permits a mischievous or ferocious dog to be at large on his premises in the day-time, he will be liable for the damage done by the dog to a perse q com- ing upon the premises, even though such person was a trespasser by hunting in the woods of the dog's owner, and without his license. Loomis v. Terry, 17 Wend. 496 ; Sarcli v. Blackburn, 4 C. & P. 297; Brock v. Copeland, 1 Esp. 203. But in such a case if the person injured is not a trespasser, an action lies, as where a stranger who, without authority from the owner of the premises, enters thereon for a lawful purpose, by invitation of one who is lawfully there by license of the owner. Kelly v. Til- ton, 2 Abb. Ct. App. 495 ; 3 Keyes, 263. If a person provokes or causes a dog to bite him by kicking or other aggressive acts, and not from any mischievous propen- sity of the dog, no action can be maintained by the party bitten. KeigTitlinger v. Egan, 65 111. 235. Where there is no negligence on the part of the owner or his driver, and a team becomes frightened and runs away and injures a person, no action lies for the damages sustained by the injured party. Holmes v. Mather, L. R., 10 Exch. 261 ; 16 Am. Eep. 384, in note ; Weldon v. Harlem R. M. Co. , 5 Bosw. 576 ; Sullivan v. Scripture, 3 Allen, 564. But where the owner or his servant is negligent, and a horse runs away and injures a third person, an action lies against the owner. McCahill v. Kipp, 2 E. D. Smith, 413; lllidge v. Oood- win, 5 Carr. & P. 190. A man has a right to keep a dog or any other animal, provided he is kept under restraint, so that persons pursuing their ordi- nary or lawful avocations are not exposed to danger. Logue v. Link, 4 E. D. Smith, 63. No action lies where a child of three years of age is suffered to go unattended into a room where a dog accustomed to bite persons is kept chained in the owner's bed- room, and when the child's parents knew that the dog was accus- tomed to bite. lb. § 3. Injuries to animals Iby domestic animals. There are many cases in which injuries done by one animal to another will give a right of action to the owner of the injured animal against the owner of the animal doing the act which causes the damage. As will be seen in a subsequent place, post, 311, § 5, notic ? or knowledge is in some cases required to be shown before the owner is liable far injuries committed by domestic animals. But 310 ANIMALS. where the animal doing the injury is trespassing upon the landa of the owner of the injured animal at the time when the act is done, it is not necessary to show any notice or knowledge on the part of the owner of the vicious animal, that it was accustomed to do such acts. In such a case the owner is liable for the tres- pass of his animal, and as a part of the act for all the damage it may do to other animals belonging to the owner of the land so trespassed upon. Van Leuven v. Lyke, 1 N. Y. (1 Comst.) 615 ; Dunckle v. Kocker^ 11 Barb. 387 ; Angus v. Radin, 2 South. 815 ; J)olp7i, V. Ferris, 7 Watts & Serg. 367. Where a wire fence separates two lots, and a mare is pastured upon one side, and a stallion upon the other, and the latter kicks and bites the former through such fence, without crossing it, the act is a trespass for which the owner of the stallion is liable, with- out reference to any question of negligence on the part of the owner of the mare. Mils v. Loftus Iron Co., L. R., 10 C. P. 10; 11 Eng. Rep. 214 ; 31 L. T. (N. S.) 483. An agistor of cattle, who takes a horse to pasture, and places it in a field with a number of heifers, with knowledge that a bull kept on adjacent land had been found in the field, and that there was no sufiicient fence to keep him out, is liable if the horse is gored and killed by the bull, although he had no knowledge that the bull was of a mischievous disposition. Smith v. CooJc, L. R., 1 Q. B. Div. 79, The agistor is liable for the breach of his implied contract to take reasonable care of the horse. lb. See, also, Phelps v. Paris, 30 Vt. 511, § 4. Injuries by wild animals. Where animals are of a tame nature, and not generally accustomed to injure persons or animals, the law does not give damages for injuries of that nature, in the absence of proof that the particular animal was accustomed to do such acts, to the knowledge of the owner. See post, 311, §5. But an entirely different rule prevails in regard to animals of a wild and ferocious nature, which are naturally inclined to acts of violence toward other animals, or to human beings ; and in such cases the law does not require any proof that the animal haa previously done any mischief or injury to animals or persons, for the owner is presumed to know the habits and disposition which are universal among animals of that species ; and, there- fore, the owner of wild or ferocious animals, such as lions, tigers, leopards, panthers, bears, wolves and others of a similar nature, is required to keep them securely at all hazards ; and if they escape and do any injury to other animals or to persons, the ANIMALS 'SIX owner will be responsible for tlie injury done, without any proof of knowledge of their ferocity, or that he was negligent as to the manner of keeping or securing them. A man who keeps a bear, which is confined by a chain, which has not evinced any fierceness, but had been comparatively tame and docile in its habits, is, nevertheless, liable for any injury which the animal may do. Besozzi v. Harris, 1 F. & F. 92. So a man who keeps a monkey, with a knowledge of its mischievous and ferocious nature, and that it is accustomed to attack and bite mankind, and that it is dangerous to allow it to go at large, is liable for the injuries it may do to persons. May v. Burdett, 9 Q. B. lei ; 16 id. 64 ; 10 Jur. 692 ; 16 L. J., Q. B. 64. To keep wild beasts is not, of itself, an unlawful act, even though they are by nature fierce, dangerous and irreclaimable ; but since the propensity of such animals to do dangerous mischief is well known, and is inherent and not to be eradicated by any effort at domestication, nor restrained except by perfect confinement oi extraordinary skill and watchfulness, the owner or keeper of such dangerous creatures is required to exercise such a degree of care in regard to them as will absolutely prevent the occur- rence of an injury to others through such vicious acts of the animal as he is naturally inclined to commit. Scribner v. Kelley, 38 Barb. 14, 16. Bat the owner of an elephant, which is being driven along a public highway for a lawful purpose, is not liable for the injury caused by the frightening of a horse which saw the elephant, and ran away in consequence of its fright, unless it is proved that such an effect is produced upon horses in general at the sight of an elephant, and that the owner of the elephant knew or had notice of that fact. lb. In New York there is a general statute relating to the conveyance of animals used in exhibitions, menageries or shows. Laws 1862, ch. 112 ; 3 R- S, 545, Edm. ed. § 5. Knowledge by owner, of vicious habits. The owner of ani- mals or creatures which, as a species, are harmless and domesti- cated, and are kept for convenience or use, is not liable for inju- ries done by them, unless it is shown that he had notice of such inclination on the part of the particular animals causing the in- jury to do such acts. Ante, 308, § 2. It is not always practicable to show an actual formal notice, or a positive knowledge by the owner of an animal that it is accus- tomed to do mischief ; and such knowledge is not universally required by the law. Where the owner of a domestic animal 312 AIS^IMALS. has seen or heard of things relating to the animal which would be sufficient to satisfy a man of ordinary prudence and caution that it is ill disposed and likely to ^o mischief, it is suflScient to require him to secure the animal in such manner as to prevent injury by it. McCasUll v. Elliott, 5 Strobh. (S. C.) 196 ; Worth V. Gilling, L. R., 2 C. P. 1 ; Laverone v. Ifangianti, 44 Cal. 138 ; S. C, 10 Am. Rep. 269 ; Partlow v. Haggarty, 35 Ind. 178. If a person will keep a mischievous animal, with knowledge of its propensities, he is bound to keep it secure at his peril. Kelly V. Tilton, 2 Abb. Ct. App. 495 ; 3 Keyes, 263. In an action against the owner of a dog, for causing a team to run away in consequence of an attack by the dog in the street, knowledge by the owner of the dog must be alleged and proved, and it ought to appear clearly that it was the attack of the dog and not any vicious habit of the horse that caused the run- away. Wormley v. Gregg ^ 65 111. 251. It has been held that in an action to recover for an injury caused to a j)erson by the bite of a dog, it must be shown that the owner of the dog knew that he was in the habit of biting mankind, not merely that he bit other animals, or that the action cannot be maintained. Keiglitlinger v. Egan, 65 111. 235. But in the same State it has been held that the owner of a mischievous and ferocious dog who permits it to go at large, with a knowledge that it has killed one kind of animals, will be liable if it destroys other animals of a different species. Pickering v. Orange^ 2 111. (1 Scam.) 338. And in an action for an injury done to a horse by a bull, it is competent to show that the owner of the bull knew that the bull had previously attacked a man. CockerTiam v. Nixon, 11 Ired. (N. C.) 260. So, where the owner of a bull knows that it is viciously disposed toward other animals, he will be liable for injuries inflicted by it upon a person. EarTiart v. ToungUood, 27 Penn. St. 337. A person who keeps an animal after he has notice that this particular animal is of a vicious disposition, is required to keep it securely, although it is not of a savage or ferocious species, and he will be liable for such injury as it may do, without refer- ence to any specific negligence as to its custody. Fopplewell v. Pierce, 10 Cush. 509 ; Stumps v. Kelly, 22 111. 140 ; Kittredge v. MlioU, 16 N. H. 77 ; Wool/ v. Clialker, 3 Connecticut, 121 ; Komy V. Ward, 2 Daly, 295 ; 36 How. 256. Where a dog has a vicious habit of attacking and biting other dogs, without being incited to do so, to the knowledge of its ANIMALS. 313 owner, and the dog is permitted to run at large, and lie attacks and kills the dog of another person which is lawfully in the place where he is killed, the owner of such vicious dog is liable for the damages. Wheeler v. Brant, 23 Barb. 324. Vicious dogs are a nuisance, and their owners must either kill them or confine them, as soon as they have notice of their dan- gerous habits, or answer in damages for the injuries inflicted by them. lb. Where a dog has bitten persons, to the knowledge of its owner, who afterward suffers him to be at large, he will be liable for the injuries caused by the dog in biting another person afterward. BucMey v. Leonard^ 4 Denio, 500. It is not necessary, in order to sustain an action against a per- son for negligently keeping a ferocious dog, to show that the animal had actually bitten another person before it bit the plain- tiff ; it is enough to show that it has, to the knowledge of its owner, evinced a savage disposition by attempting to bite. Worth V. Gilling, L. R., 2 C. P. 1 ; McCasUll v. Elliot, 5 Strobh. L. 196. Where the owner of a bull drives it along a public highway, where it injures a person who wears a red handkerchief around his neck, and it is shown tliat the owner said that he knew that a bull or tlie bull would run at any thing red, it will be sufiicient evidence to give the case to the jury on the question of knowl- edge. Hudson V. Roberts, 6 Exch. 697. An action lies against the owner of a dog, who, knowing the animal to have a propensity for chasing and destroying game, permits it to be at large, and the dog in consequence " breaks and enters " the plaintiff's wood, and chases and destroys young pheasants which are being reared there under domestic hens. Read v. Edwards, 17 C. B. (N. S.) 245. A man who owns a horse which is accustomed to bite persons, to the knowledge of the owner, who usually keeps him muzzled, is liable for injuries committed by the animal by biting a person who was passing by it upon a sidewalk in a public street, even though he knew the horse would bite, and was usually muzzled, but did not notice that it was not then muzzled. Koney v. Ward, 2 Daly, 295 ; 36 How. 255. So one who negligently permits his horse to run loose and unattended upon the sidewalks of a pop- ulous street in a city, will be liable for any injury it may do by kicking a person who is lawfully passing along a sidewalk of such street ; and it is not necessary to show viciousness in the horse in committing the injury, except in cases where, but for Vol. I. — 40 314 ANIMALS. the vice of the animal, the owner would be free from fault Dickson V. McCoy, 39 N. Y. (12 Tiff.) 400 ; 7 Trans. App. Ill ; Goodman v. Oay, 15 Penn. St. 188. And see Barnes v. Charpin, 4 Allen, 444. The general rule, that the owner of a domestic animal is not liable for injuries done by it to other animals, or to persons, seems to be generally recognized and acted upon. In some cases it is held that a single act of injury done by the animal to the knowledge of the owner is sufficient to render him liable for subsequent similar injuries done by the animal. Smith V. Pelah, 2 Strange, 1264 ; Arnold v. Norton, 25 Conn. 92 ; Kit- tredge v. Elliott, 16 N. H. 77. In other cases two or more instances were shown. BucMey v. Leonard, 4 Denio, 500 ; Wheeler v. Brant, 23 Barb. 324. But there are cases in which the law ought not to require proof that a particular animal has done a previous similar injury be- fore its owner is liable for its acts. It has been seen, ante, 310, that the owner of wild and feroci- ous animals is liable for the injuries done by them to other ani- mals or to persons, without proof of knowledge that they had committed previous injuries. And the same principle ought to govern where a man keeps an animal which he knows to be of a savage and ferocious nature, and liable at any time to do some injury to other animals or to persons. In such cases, the owner ought to be regarded as having sufficient knowledge or notice to require him to prevent the animal from doing mis- chief. And it has been held that a man who keeps a large and fierce-looking dog, which is in the habit of running out to the highway and furiously barking at persons passing along, and of sometimes attacking persons or horses passing in the high- way, will be liable if the dog bites a j)erson, although it is not shown that it had previously bitten any person ; and the court said: " That a dog has once bitten a man, is a circumstance from which the probability of its biting another may be inferred; but the same inference may be drawn with equal confidence from other indications of the dog's disposition. Indeed, attempts be- fore made by a dog tliat had never succeeded in actually biting, may give more full assurance of danger to be apprehended from it. than could exist as to another dog, that under some peculiar circumstances had used its teeth upon man. To require that a plaintiff, before he can have redress for being bitten, should show that some other sufferer had previously endured harm from ANIMALS. 315 the same dog, would be always to leave the first wrong unre- dressed, and to lose sight of the thing to be proved, in attention to one of the means of proof. If nothing short of a dog's once having bitten can show its dangerous nature, even the owner of a dog known to have been bit by a rabid animal may not be an- swerable, unless on some previous occasion the dog has inflicted the dreadful injury, which he was bound to have apprehended and prevented." McCaskill v. Elliott, 5 Strobh. (S. C.) 197, 198. In Worthy. aUllng, L. R., 2 C. P. 4, the court said: "Al- though there was no evidence that the dog had ever before bit- ten any one, it was proved that he uniformly made every effort in his power to get at any stranger who passed by, and was only restrained by the chain. There was abundant evidence to show that the defendants were aware of the animal' s ferocity, and, if so, they are clearly responsible for the damage the plaintiff has sustained. * * * There was evidence that the dog was in the habit of jumping at every one who passed his ken- nel, endeavoring to bite, and that the defendants knew it. It is true that he did not appear to have succeeded in biting any per- son until he unfortunately caught the plaintiff. The defendants admitted that the dog was purchased for the protection of their premises. Unless of a fierce nature, he would hardly have been useful for that purpose." See, also, Laverone v. Mangianti, 41 Cal. 138 ; S. C, 10 Am. Eep. 269 ; Jackson v. Smithson, 15 M. & W: 561 ; Oakes v. Spaulding, 40 Yt. 347 ; Brown v. Carpenter, 26 id. 638. xilthough, in an action for injuries resulting from the bite of a dog, notice to the wife of the savage nature of the dog will be sufficient evidence of the scienter to fix the husband ; yet the converse does not hold, and a notice to the husband will not, taken alone, be sufficient proof of the scienter to render the wife liable after her husband's death. Miller v. Kimhray, 16 L. T. (N. S.) 360. But a husband will be held to have sufficient knowl- edge of the propensity of his dog to bite, where it is shown that the wife of the defendant, a milkman, occasionally attended to his business, which was carried on upon premises where he kept the dog, and that a person had gone there and made a formal complaint to the wife, for the purpose of having it communica- ted to the husband that the dog had bitten the informant's nephew. Gladman v. Johnson, 36 L. J. (C. P.) 153 ; 15 W. R, 313 ; 15 L. T. (N. S.) 476. 316 ANIMALS. § 6. Agent's knowledge of yiciousness. Knowledge by the agent is generally regarded as knowledge by tlie principal. Ante, 231, 232. And, therefore, if the owner of a dog appoints a servant to keep it, the servant's knowledge of the dog's ferocity is the knowledge of his master. Baldioin v. Casella, L. R., 7 Exch. 325 ; S. C, 3 Eng. Rep. 434. So the owner of a dog was held to have sufloicient knowledge of the ferocity of his dog, where it was shown that before it bit the plaintiff, two persons who had been attacked by it on previous pccasions, proved that they had gone to the defendant's public house and made complaint to two persons who were behind the bar serving customers, and that one of them also complained to the barmaid ; but there was no evidence that these complaints were communicated to the defendant, nor that the two men spoken to had the general management of the defendant' s business, or had the care of the dog. Applebee v. Percy, L. R., 9 C. P. 647 ; 22 W. R. 704 ; 43 L. J. (C. P.) 365 ; 30 L. T. (N. S.) 785. § 7. Liability of possessor of animal. It is not merely the own- ers of dogs or other animals who are liable for their acts ; for in an action against a person for keeping a dog accustomed to bite mankind, it is not essential that the dog should be his ; for if he harbors the dog, or allows it to be at his premises, or to resort to them, he will be as liable as though owner of the dog. McKone V. Wood, 5 Carr. & P. 1 ; Frammell v. Little, 16 Ind. 251 ; Wil- kinson V. Parrott, 32 Cal. 102 ; Marsh v. Jones, 21 Vt. 378. But a person is not liable for the acts of a dog which he strives to drive away from his premises. And where it appeared that the plaintiff was bitten by a stray dog at a railway station while she was waiting for a train ; and it was further shown that at 9 p. m. the dog flew at and tore the dress of another female on the plat- form ; that at 10:30 p. m. he attacked a cat in the signal-box near the station, when the porter then kicked him out, and saw no more of him ; and that he made his appearance again at 10:40, on the platform, where he bit the plaintiff; this was held not sufli- cient to show that the company were guilty of negligence in not keeping the station reasonably safe for passengers. Smith v. Great Eastern Railway Co., L. R., 2 C. P. 4 ; 36 L. J. (C. P.) 22 ; 15 W. R. 131 ; 15 L. T. (N. S.) 246. § 8. Injuries by trespassing animals. This subject has already been noticed, ante, 307, § 1 ; ante, 309, § 3. And while the owner is liable for the trespasses of his cattle, he is not liable for the injuries done by the cattle of another person, although such ANIMALS. 317 cattle entered throngli the breach of fence made by the cattle of the former, unless the acts occurred in a manner to be under his control. Durham v. Ooodwin, 54 111. 469. But if the beast (a mule) of the defendant escapes from his field through an insufficient fence into the field of A, thence into the field of B, and thence into the field of the plaintiff, where it injures the plaintifi^s horse, the defendant will be liable for the injuries, although, as between him and A, the latter was bound to keep the fence between their fields in repair, although the fence between the plaintiff's field and B's was insufficient, and although the defendant did not know that the mule was vicious. Lyons v. Merrick, 105 Mass. 71. See Stafford v. Ingersol, 3 Hill, 38. But, where two persons own adjoining lands, and there is a division fence erected between them, and the cattle of one of them enters upon the lands of the other, who has neglected to keep his portion of the division fence in rejoair, he cannot main- tain an action for the entry of such cattle through the defective fence. Cowles v. Balzer, 47 Barb. 562. And, where M., upon whose land there is an unguarded "slough-well," and C, an adjoining land-owner, mutually agree, for the purpose of saving the expense of fence building, that the stock of each might, in the fall of the 3^ear, pasture upon the lands of the other, but with no stipulation on the part of either to protect tlie cattle of the other while pasturing on his lands, this will not render M. liable for the loss of C.'s horse in the "slough-well." McGill v. Compton, m 111. 327. So the owner of uninclosed woodland is not liable for an injury sus- tained by trespassing cattle which fall into a hole dug by the owner in such woodland, which he leaves uninclosed. Knight V. Abert^ 6 Penn. St. 472 ; and see Bush v. Brainard, 1 Cow. 78 ; ante, 305, § 4 ; Mentges v. JSf. Y. & Harler,i R. R. Co., 1 Hilt. 425. § 9. Communicating diseases. The right of a person 1o keep diseased animals upon his own premises has been noticed, ante, 306, §7. But the law does not look with favor upon the acts of those who intentionally, or by negligence, cause the spread of contagious or infectious diseases among animals. And a person who sells an animal witli a warranty that it is free from foot oi mouth disease, when it has such a disease, which is communi- cated to other animals by putting it in the same herd with them, will be liable for the loss of such animal if it dies of the disease, 818 ANIMALS. as well as for the loss of all of the other cattle to which it coin> municated the disease. Smith v. Green, L. R., 1 C. P. Div. 92; Mullett V. Mason, L. R., 1 C. P. 559. When the owner of an animal takes it to a public market for sale, this furnishes evidence of a representation on his part that the animal is not, so far as he knows, suffering from any infec- tious disease. Bedger v. Nicolls, 28 L. T. (N. S.) 441, Q. B. One who knowingly delivers a glandered horse to another person without informing him that the horse is glandered, and the latter, not knowing of such disease, puts it with another horse of his, which takes the disease and dies of it, is liable to an action with- out any allegation of fraud or warranty. Penton v. Murdoclc, 22 L. T. (N. S.) 371 ; 18 W. R. 382. So, where a flock of sheep is sold by an agent authorized to sell them, which he does, with a knowledge that the sheep are diseased with a contagious disease, but does not communicate that fact to the purchaser, who mixes the sheep with a flock be- fore owned by him, in consequence of which some of the sheep of both flocks die, the principal will be liable for the loss of the sheep, although he had no notice of the agent' s fraud. Jeffrey v. Bigelow, 13 Wend. 518. § 10. Injuries by animals of diiferent owners. Where several animals belonging to different owners join in the commission ol mischief, the several owners cannot, at common law, be joined in a single action for the mischief done, since each person is not jointly liable for the acts of all the animals, but merely for the acts of the animal owned by him. Carroll v. Weiler, 4 Y. N. S. C. (T. & C.) 131 ; S. C, 1 Hun, 605 ; Van SteeiiburgJi v. Tobias, 17 Wend. 562 ; Auclimuty v. Ham, 1 Denio, 495 ; Partenlieimer V. Van Order, 20 Barb. 479 ; Russell v. Tomlinson, 2 Conn. 206 ; Adams v. Hall, 2 Vt. 9 ; Denny v. Correll, 9 Ind. 72. The ques- tion what portion of the damage was done by each animal is one of fact ; and where cows trespass and do damage, and in the absence of all proof as to the amount of damage done by each cow, the law will infer that each did an equal amount of the damage. Partenlieimer v. Van Order, 20 Barb. 479 ; Budding- ton V. Shearer, 20 Pick. 477. If the animals are of unequal size and strength, and have different capacities for mischief, this may be taken into the account in estimating the liabilities of the owners. Where two dogs of unequal size are owned by dififer- ent persons, and the dogs together kill a number of sheep, the jury may find that the larger dog did more mischief or damage ANIMALS. 319 than the smaller one, and apportion the damages accordingly. Wilbur V. Hubbard, 35 Barb. 303. Where growing crops are destroyed by repeated trespasses of cattle belonging to two dif- ferent owners, and it is impossible to distinguish between the trespass of one lot of cattle and that of the other, or to deter mine the actual amount of damage done by either separately, the damages may be apportioned by charging each owner accord- ing to the number of cattle owned by him and thus doing dam- age. Poioers V. Kindt, 18 Kans. 74. Joint-owners of a vicious animal are both equally bound to restrain him, and if the animal is not restrained, and one of the joint-owners is sued and compelled to pay for injuries done by such animal, no action lies by him against the other joint- owner for contribution, since both parties were wrong-doers, and in that case the law will not enforce contribution. Spaulding v. OaJces, 42 Vt. 343. § 11. Liability by statute. The liabilities of owners of domestic animals for injuries done by them in public streets or highways has been noticed, ante, 313, 314. In New York it is not lawful for cattle, horses, sheep, swine or goats to run at large in public streets, parks or highways. Laws 1869, ch. 424, §1. And if & horse is permitted to run at large in the highway the owner will be liable to any person who is injured by it in such highway, without any proof of knowledge by the owner that the animal was accustomed to do such acts. Boioyer v, Burley, 3 N. Y, S, C. (T. & C.) 362. " The owner or possessor of any dog that shall kill or wound any sheep or lamb shall be liable for the value of such sheep or lamb to the owner thereof, without proving notice to the owner or possessor of such dog, or knowledge by him that his dog was mischievous or disposed to kill sheep." 1 R. S. 656, § 9, Edm. ed.; Fish V. Sliut, 21 Barb. 333 ; Osincup v. NicJiols, 49 id. 145. Where the injury to sheep or lambs is other than that specified in the statute it must be shown that the owner of the dog knew that it was accustomed to do the kind of mischief complained of. And while the owner of a dog is liable if it kills or wounds a sheep or lamb, without proof of knowledge, the rule is otherwise where the injury alleged is that of chasing and worrying sheep ; and in such case a scienter must be shown to render the owner of the dog liable. Auchmuty v. Ham, 1 Denio, 495; There are statutes in several of the States relating to injuries done by dogs to sheep and other animals, and the statutes and 320 ANIMALS. authorities of such. States must be cpnsulted for the laws of such States. § 12. Contributory negiigence. In a subsequent portion of this work this subject will be fully considered, and, therefore, a mere reference to that title will be suflacient in this place. And see ante^ 36, 146, and ante^ 309. ARTICLE IV. RIGHTS OF THIED PERSON'S. Section 1. To kill dangerous animals. Any person may law- fully kill a ferocious dog which is accustomed to attack and bite mankind, where it is found at large on public highways or streets, without a muzzle or other means of preventing it from injuring persons. Putnam v. Payne, 13 Johns. 312 ; Maxwell V. Palmei'ton, 21 Wend. 407 ; Broion v. Carpenter, 26 Vt. 638 ; Woolfy. Clialker, 31 Conn. 121, 130. . • But, where one keeps a dog for the protection of his family, and the dog is duly licensed, and collared, according to the stat- ute, and so confined as not to endanger persons properly upon the owner' s premises, it cannot lawfully be killed by one who enters upon the premises, even though it was a dangerous animal and accustomed to bite those who came near it. Ulilein v. Cro- mack, 109 Mass. 273. Nor can a person lawfully enter a dwelling-house for the pur- pose of killing a dog not registered and collared according to the statute. Bishop v. Faliay, 15 Gray, 61 ; Kerr v. Seaver, 11 Allen, 151. § 2. Abating a nuisance. An inhabitant of a dwelling-house may lawfully kill a dog which is in the habit of haunting his house and barking and howling by day and by night, so as to disturb the peace and quiet of his family, if the dog cannot other- wise be prevented from annoying him. Brill v. Flagler, 23 Wend. 354. A wanton destruction of the animal is not justi- fiable, lb. § 3. To protect his own animals. Every owner of animals has a right to protect them from being unlawfully attacked or de- stroyed by other animals ; and if he cannot otherwise protect his own than by killing the attacking animal, he may kill it. When a dog goes upon the land of a person not its owner, and there chases fowls, and is in the act of destroying one, the owner of ANIMALS. 321 the fowl may lawfully kill the dog. Leonard v. Wilkins, 9 Johns. 233 ; Hlncldey v. Emerson^ 4 Cow. 351. A dog which is in the act of chasing and worrying sheep may be lawfully killed by the owner of the sheep. Brown v. Hohur- ger, 52 Barb. 15. If the owner of an ass knows that he is a dangerous animal, and is in the habit of pursuing and injuring stock, and he per- mits it to run at large, when he attacks a cow, throws her down, and is in the act of stamping on her, the owner of the cow will be justified in killing the ass if he believes that to be necessary to save his cow. Williams v. Dixon, 65 N. C. 416. If a statute provides that no person shall, in an}^ way, destroy any mink between specified dates, under a prescribed penalty ; and the State constitution declares that all men have certain natural, essential and inherent rights, among which is the right of "protecting property," and an action is brought against a person for killing minks contrary to the statute, it will be a good defense to show that the defendant shot the minks upon his own land while they were chasing his geese, and without showing that the geese were in imminent danger and could not otherwise have been protected. Alclrlch v. WrigJit, 53 N. H. 398 ; S. C, 16 Am. Rep. 339, where the cases are fully and ably reviewed. § 4. To protect liis property from trespass. It has been seen that domestic animals cannot lawfully be killed for a mere tres- pass upon" the lands of- another. Ante, 304, § 4. If animals are trespassing, as by going upon a railroad track, and are there killed by a passing train, no action lies. Ante, 303, § 4. So. too, there are cases in which trespassing animals may be lawfully killed. And where the case showed that a trespassing dog had taken fish from the wall of the owner' s house, where they had been hung up to dry, and a few hours afterward the dog was found trespassing on the same premises, it was held that the owner of the premises had a right to protect his property' hj killing the dog if that was necessary. King v. Kline, 6 Penn. St. 318. And see Bradford v. McKibbon, 4 Bush (Ky.), 545. A dog may lawfully drive trespassing stock ofi* of his master's premises ; and if he does so, the owner of the stock will be lia- ble to an action for killing the dog, unless it is shown that he is a nuisance in the neighborhood. Spray v. Ammerman, 66 111. 309. If domestic animals trespass upon the lands of a person other than the owner, he may lawfully turn them off of his land by Vol. I.— 41 322 ANIMALS. driving tlieiu into a public highway and leaving then, there. Humphrey v. Douglass, 10 Vt. 71. So if horses escape from their owner's inclosure, by reason of his neglect to keep up his portion of a division fence, the horses may be turned into the highway by the person upon whose lands they are trespassing. Humphrey v. Douglass, 11 Vt. 22. But if horses or cattle come upon the lands of a person in consequence of his neglect to keep up his part of a division fence, he cannot turn them into the highway if they belong to the adjoining land-owner, and went through such portion of the defective fence. Knour v. Wagoner^ 16 Ind. 414 ; Clarli v. Adams, 18 Vt. 425. In such cases he ought to drive them back upon their owner's land. lb. One may drive trespassing cattle off of his land by using a dog for that purpose, if the dog is a proper one to use for that pur- pose, and care is used to prevent excessive worrying or injury. Davis V. Campbell, 23 Vt. 236 ; Clarice v. Adams, 18 id. 425 ; Wood V. La Rue, 9 Mich. 158. If a person chases a horse out of his field with a very large and fierce dog, he will be liable for the injuries thus done. Amick y. a Ear a, 6 Blackf. 258. See ante, 306, § 6. ANNUITIES. 323 CHAPTER XI. ANNUITIES. ARTICLE I. GENEEAL EULES RELATING TO ANNUrriES. Section 1. Nature of an annuity. Lord Coke defines an an- nuity to be a yearly sum stipulated to be paid to another, in fee, or for life, or years, and chargeable only on the person of the grantor. Co. Litt. 144, b. It has also been defined as a sum of money payable by contract at fixed regularly recurring epochs, which are usually determined by reference to the civil year, although the intervals between them need not be in every case years ; they may either be greater or less than a year. It is chargeable only upon the person of the grantor. 2 Broom & Had. Com. 54 (Wait's ed., vol. 1, 459) ; and see ShufeldtY. Ab&rnethy^ 12 N. Y. Leg. Obs. 173, 182 ; S. C, 2 Duer, 533 ; v. , 5 Mart. (La.) 312. An annuity is sometimes confounded with a rent- charge, from which it difi'ers, however, in being chargeable only upon the person of the grantor, while a rent-charge is something which always issues out of specific land. Bac. Abr., Annuity, A; Hor- ton V. Coolc, 10 Watts (Penn.), 127. An annuity in fee is personal estate suh modo. It has none of the incidents and characteristics of real estate, except that of descending to the heir, and not forming assets in the hands of the executor. The husband is not entitled to his curtesy, nor the wife to her dower, in an annuity. It cannot be conveyed by way of use, and it is not within the statute of frauds, and may be bequeathed and assigned as personal estate. 3 Kent's Com. 460, n. ; Aubin v. Daly, 4 Barn. & Aid. 59 ; and see 2 Broom & Had. Com. 54, 55 (Wait's ed., vol. 1, 459). There is a distinction between an income and an annuity. The former embraces only the net profits after deducting all necessary expenses and charges ; the latter is a fixed amount directed to be paid absolutely and without contingency. Booth v. Am- merman, 4 Bradf. (N. Y.) 129, 134; Ex parte M Comb, id. 161, 152. ANNUITIES. Though not belonging to the class of things real, an mnuity may, in a limited sense, be described as a hereditament, because the law permits it to be limited to a man and his heirs, or to a man and the heirs of his body, so that it in that case descends, upon death and intestacy, to the person who would succeed tc land limited in the same manner, and it is forfeitable for treason ; and, moreover, like incorporeal hereditaments strictly so-called, it can only be granted or transferred by deed, though the con- tract to grant an annuity will be binding and enforced against the estate of the proposed grantor. See 2 Broom & Had. Com. 55 (Wait's ed., vol. 1, 469) ; Meld v. Smith, 14 Yes. 491. The term "annuity" is sometimes applied, in a very general sense, to a yearly or stated payment of money. See Horton v. CooTi, 10 Watts (Penn.), 127. § 2. How created. An annuity may be created by deed or by will ; and a devise, in the following words : " I give and bequeath to my daughter A the sum of sixty dollars as an annuity, to be paid to her out of the profits of my real estate annually," creates an annuity and not a rent-charge. Robinson v. Townsend, 3 Gill. & Johns. (Md.) 413. Money lent and paid at different times for the education and advancement of the defendant is held a good consideration for the grant of an annuity {KeJf v. Amhrose, 7 Term. R. 551) ; and a covenant by a husband to secure his wife an annuity during her life, in case she should survive him, is a sufficient considera- tion for a grant of an annuity from her father. Ex parte Dray- cott, 2 Grlyn. & J. 283. But past seduction and cohabitation are not a good consideration to support an annuity. Beaumont v. Reeve, 8 Q. B. 483 ; S. C, 15 L. J. (Q. B.) 141 ; 10 Jur. 284. A promise to pay an annuity in consideration of forbearance to sue the personal representatives of the grantor is binding, and may be enforced against the promisor. Horton v. Coolc, 10 Watts (Penn.), 124. Annuities given by will, though payable out of the personal estate or general funds of the testator, are generally governed by the principles applicable to a devise of real estate. Bradhursi V- Bradhurst, 1 Paige, 331. The limitation, in a will, of an an- nuity, to take effect upon the death of the first devisee, without issue living at his death, is good ; and the first devisee takes a perpetuity, subject to be defeated by the happening of the con- tingency, and when the limitation over becomes impossible, his right to the annuity becomes absolute. lb. ANNUITIES. 825 A daughter who owned real estate, subject to a life estate in her mother, w^ho lived with her upon the land, by her will di- rected her executors to lease "all her real estate" not before devised, and out of the profits to pay her mother an annuity for life. It was held that the acceptance, by the mother, of the annuity under the will was not inconsistent with her claim to the life estate, and that she was entitled to both. Harrington v. Cannon^ 1 Paige, 569. Where a sum of money was secured by bond to a wddow, in consideration of her relinquishing her right of dower, payable on a certain day yearly during her life, it was held that this was an annuity not subject to apportionment. Tracy v. Strong, 2 Conn. 659. § 3. Pajraent of. When the time of paj^ment is distinctly stated, the annuity must of course be paid at that time. But in the absence of any particular instructions it is payable at the end of the year. Hall v. Hall, 2 McCord's Ch. (S. C.) 281 ; Booth V. Ammerman, 4 Bradf. (N. Y.) 129. xin annuity left to the wife, payable " annually, or in any way she may wish," was ordered to be paid quarterly inadvance. Hall v. Hall, 2 McCord' s Ch. (S. C.) 281. So where an annuity was given by will to the wife of the testator, payable on the first of March, and the testator died in August, it was held that the annuitant was entitled to the full annuity on the first day of the following March. McLemore V. Goode, 1 Harp. Ch. (S. C.) 272. And where a testator died in September, having bequeathed "a five hundred dollars' annu- ity," to be paid "on the first day of March in every year," it was held that upon the first day of March following the testa- tor's death, the annuitant was entitled to a part of the annuity proportioned to the time elapsed after the testator's death. Waring v. Pur cell, 1 Hill's Ch. (S. C.) 193. An annuity given by a will for the life of the annuitant, to be paid by the executors quarterly, but not charged upon the in- come merely, is valid. Gait v. Cook, 7 Paige, 521. § 4. Enforcement of. To enforce the payment of an annuity, an action of annuity lay at common law, or the remedy was by distress, according as the person or the lands of the grantor were sought to be affected. The action of annuity has long been out of use, being superseded by the action of debt or covenant. See 1 Tidd's Pr. 3, 4; Co. Litt. 144, h. After judgment has been rendered in an action of debt on a bond to secure the payment of an annuity, a scire facias is not requisite to warrant an exe- cution for subsequent arrears. Wood v. Wood, 3 Wend. (N. Y.) 4.54; Bac. Abr., Annuity, C. An action will lie for an annuity 326 ANNUITIES. granted by the defendant to the plaintiff in consideration of faith- ful services for life. Hope v. Coleman^ 2 Wils. 221. A bill in equity will lie to enforce payment of an annuity charged upon land. Townshend v Duncan^ 2 Bland. (Md.) 45. In a suit in equity for arrears of an annuity, the decree should not only be for the sums already due and interest from the times at which they were payable, but should reserve liberty to apply to the court, from time to time, to extend its decree so as to em- brace sums afterward becoming payable. Marshall v, TJiomp- son, 2 Munf. (Ya.) 412 Webb v. Jlggs, 4 Maule & Selw. 113. § 5. How determined. When an annuity is secured by bond, the death of the annuitant before the day of payment defeats the annuity. Manning v. Randolph, 4 N. J. L. (1 South.) 144. And where a person who has an annuity charged upon certain real estate, inherits one-half of such estate as the heir at law of the devisee of the grantor of the annuity, one -half of such an- nuity becomes merged by the descent thus cast upon him. Jen- Tcins V. Van SchaacTc, 3 Paige, 242. Upon a bequest to the testator's wife of an annuity "during her widowhood and life," it was held, that the testator evidently intended it should cease upon her second marriage, but that such intention being ^'- in terror em^"'' and against the policy of ttie law, as in restraint of marriage, could not take effect; and that the widow was entitled to the annuity during her life not withstanding her second marriage, the same not being expressly devised over, except to the residuary legatee, who was heir at law to the testator. Parsons v. Winslow, 6 Mass. 169. Where an annuity bond is in the penal sum of $1,000, condi- tioned to pay $100 yearly during the obligee's life, the payment for ten years is no bar to the obligee' s further claim during hia life. Blackmer v. Blackmer^ 5 Vt. 355. "Where the obligor's estate is represented insolvent, in such case, the commissioners should allow, on the bond, only what was due at the time of the obligor's death. Whatever subsequently becomes due may be collected of the obligor' s heirs, if they have assets. Id. Under a provision that an annuity should cease if a lady should associate, continue to keep company with, or cohabit, or criminally correspond with one F., it was held, that all inter- course whatever, though the most innocent, is within the terms of the deed. Dormer v. Knight^ 1 Taunt. 417. An annuity may be purchased, like other property, and in- equality of price will not, of itself, make the contract usurious Lloyd V. ScoU, 4 Pet. (U. S.) 205. APPLICATION OF PURCHASE-MONEY. 327 CHAPTER XII. APPLICATION OF PURCHASE-MONEY. TITLE I. GENERAL RULES RELATING TO THE APPLICATION OF PURCHASE-MONEY. ARTICLE I. PURCHASEK, IK "WHAT CASES BOUND TO SEE TO THE APPLICATION OF. Section 1. (ireneral rule as to. The general rule on this sub- ject is briefly stated to be, that where the trust or charge is of a defined and limited nature, the purchaser must see to the ap- plication of the purchase-money ; otherwise, when it is general and unlimited. Duffy v. Calnert, 6 Gill. 487 ; St. MartJ s Church V. StocTcton, 4 Halst. Ch. (N. J.) 520 ; Murray y. Ballou^ 1 Johns. Ch. (N. Y.) 566. See 8tronghill v. Anstey, 1 De G., M. & G. 636. To impose on a purchaser the duty of seeing to the application of the purchase-money, the trust must be of such a nature that the purchaser would reasonably be expected to see to the appli- cation of the purchase-money. Such will be the case where land is charged with the payment of particular debts ; but if not specified he is not bound. Sims v. Lively, 14 B. Monr. (Ky.) 348. § 2. Where the trust is specific. In the application of the rule above stated, it has been generally held that where the trust ia created, or the charge is imposed, for the payment of a portion, a mortgage, legacies, or scheduled debts, which are definitely ascertained, and to be paid over immediately to the person en- titled, the purchaser, in the view of a court of equity, is bound to see that the money is actually applied to their discharge before the estate is relieved from the burden. Swasey v. Little, 7 Pick. (Mass.) 296 ; Bugbee v. Sargent, 23 Me. 269 ; Long v. Long, 1 Watts (Penn.), 267 ; Hooter v. Hoover, 5 Barr (Penn.), 351 ; Bow- man 7. Bust, 6 Rand. (Va.) 587 ; Leavitt v. Wooster, 14 N. H. 550. See Stronghill v. Anstey, 1 De G., M. & G. 653. 328 APPLICATION OF PURCHASE-MONEY. § 3. Where the trust is general and indefinite. But where the trust is created or the charge exists for the payment of debts generally, or for the payment of debts and legacies, when an ac- count of the debts necessarily precedes the payment of the legacies ; or where the money is to be reinvested or otherwise applied by the trustee to purposes which require time, delibera- tion, and discretion on his part, the purchaser is relieved from such responsibility, and the cestuis que trust must look alone to the trustee. Laurens v. Lucas ^ 6 Eich. Eq. (S. C.) 217; Gard- ner V. Gardner^ 3 Mason, 178 ; Andreios v. Sparliawlc, 13 Pick. 393 ; Cadhury v. Duval, 10 Barr (Penn.), 265 ; Grant v. Hoolc, 13 Serg. & R. (Penn.) 259 ; Potter v. Gardner, 12 Wheat. (U. S.) 198 ; Williams v. Otey, 8 Humph. (Tenn.) 568 ; Clyde v. Simpson, 4 Ohio St. 445 ; RoUnson v. Lowater, 5 De G., M. «& G. 272 ; S. C, 17 Beav. 692 ; Lining v. Peyton, 2 Desauss. (S. C.) 375 ; Red- heimer v. Pyson, 1 Spear (S. C), 135. § 4. Collusion or fraud of purchaser. All personal property is bound for the payment of debts, and a purchaser is not bound to know whether there are debts or not, nor is he bound to see to the application of the purchase-money. Keane v. Roharts, 4 Mad. 356. Thus an executor has power to sell personal assets of his testator, and even chattels specifically devised ; and the purchaser has no concern with the purchase-money. McLeod v. Drummond, 17 Ves. 160 ; see Field v. ScJiieffelin, 7 Johns. Ch. 150. If, however, there be fraud and collusion in the trans- action, as where the chattel is sold for a nominal price only, or at a fraudulent undervalue. Ewer v. Corbet, 2 P. Wms. 149 ; or, if the purchaser receives the chattel in payment of the execu- tor's own debt to him, Wilson v. Doster, 7 Ired. (N. C.) Eq. 231 ; Dodson V. Simpson, 2 Pand. (Ya.) 294 ; or if he knows that the executor intends to misapply the money, and the sale is made for that purpose; Sacia v. Berthoud, 17 Barb. 15; Railway Co. V. Barker, 29 Penn. St. 160; Garrard v. Railroad Co., id. 154; Miller v. Williamson, 5 Md. 219. In all these, and the like cases of collusion and fraud between the executor and purchaser, the latter cannot protect himself under the absolute power of the former to sell. See Williams v. Branch Bank, 7 Ala. 906 ; Wil. liamson v. Morton, 2 Md. (Ch.) 94 ; Elliott v. Merryman, Barn. 81; 1 White's Eq. Lead. Cas. 40 (58); Field v. Schieffelin, 7 Johns. Ch. 150. For although the purchaser will take a good title at law, equity will convert him into a trustee, and ninke him accountable to the creditors or cestuis que trust. D' Oyley APPLICATIOIS OF PURCHASE-MONEY. 329 V. Loveland, 1 Strobh. L. (S. C.) 46; Peny on Trusts, § 598. It has been said, that in the United States the English doc- trine, in regard to the application of the purchase-mone}', has rarely been administered except in cases of fraud in which the purchaser was a coadjutor, the general rule here being, that the purchaser, who in good faith pays the purchase- money to the person authorized to sell, is not bound to look to its application, and that there is no difference in this respect between lands charged in the hands of an heir or devisee with the payment of debts, and lands devised to a trustee to be sold for that purpose. 1 Cruise's Dig., tit. 12, c. 4, § 36, note; and see Champlin v. Haight, 10 Paige, 275 , Bufy v. Calvert, 6 Gill, 48; CryderC s Appeal, 1 Jones (JS". C), 72; Oarnett v. Macon, 6 Call (Va.), 309, 354. § 5. Purchaser of real estate. One of the English rules laid down in the leading case on the subject is, that if the trust directs lands to be sold for the payment of certain debts, men- tioning in particular to whom those debts are owing, the pur- chaser is bound to see that the money is applied for the payment of those debts. Elliott v. Merryman, Barn. 78; 1 White's Eq. Lead. Cas. 40 (68) ; and see M'Leod v. Drummond, Yt Ves. 162 ; Born v. Horn, 2 Sim. & Stu. 448. This rule is not favored in all its strictness by the American courts (see 3 Redf. on Wills, 235 ; Stronghill v. Anstey, 1 DeG., M. & G. 653, note), although they apply the doctrine in those cases where it would seem to be unavoidable. Rutledge v. Smith, 1 Busb. Eq. (N. C.) 283 ; Dalzell v. Crawford, 1 Pars. Eq. (Penn.) 57. But in cases where the devise is for the payment of debts generally, and also for the payment of legacies, the trust becomes a mixed one, and the purchaser is not bound to see to the application of the pur- chase-money, because to hold him liable to see the legacies paid would, in fact, involve him in the necessity of taking an account of all the debts and assets. Andrews v. SparhawTc, 13 Pick. 393; Sims V. Lively, 14 B. Monr. (Ky.) 435 ; Goodrich v. Proctor, 1 Gray, 567. So, it is well settled, that a purchase under a de- cree of a court has no concern with the disposition which the court may make of the purchase-money, nor can his right as a purchaser be affected by any misapplication which he may make of it. Wilson v. Davisson, 2 Rob. (Va.) 385 ; Coombs v. Jordon, 3 Bland, 284 ; 1 Lead. Cas. Eq. 76. Where there is a devise of real estate for the payment of debts generally, or the testator charges his debts generally upon his Vol. L — 42 330 APPLICATION OF PURCHASE-MOISEY. real estate, and the money is raised by the trustee by sale or mortgage, it is universally agreed, that the same rule applies as in cases of perso7iaUi/ ; namely, that the purchaser or mortga- gee is not bound to look to the application of the purchase- money. Gardner v. Gardner, 3 Mason, 178, 218 ; Wormley v. WormUy, 8 Wheat. (U. S.) 421, 422; Greetham v. Colton, 34 Beav. 615 ; Robinson v. Lowater, 5 De G., M. & G. 272 ; 1 Lead. Cas. Eq. (59), 74. Always subject, however, to the exception, that if the purchaser or mortgagee is knowingly a party to any breach of trust, by the sale or mortgage, it shall afford him no protection. Garneit y. Macon, 6 Call (Va.), 308; Potter y. Gard- ner, 12 Wheat. (U. S.) 498 ; Eland v. Eland, 4 M. & Cr. 427. § 6. Where discretion is to be exercised by trustee. Where the trust is defined in its object, and the purchase-money is to be reinvested upon trusts which require time and discretion, or the acts of sale and reinvestment are manifestly contemplated to be at a distance from each other, it seems that the purchaser is not bound to look to the application of the purchase-money. For the trustee is clothed with a discretion in the management of the trust fund, and if any persons are to suffer by his mis- conduct, it should be rather those who have reposed confidence, than those who have bought under an apparently authorized act. See Wormley v. Wormley, 5 Wheat. (U. S.) 421, 442 ; Par leer V. Clarkson, 4 W. Va. 407 ; Locke v. Lomas, 5 De G. & Sm. 326 ; Redlieimer v. Peyson, 1 Spear's Eq. (S. C.) 135 ; Lining v. Peyton, 2 Desauss. (S. C.) 375; CoonrodY. Coonrod, 6 Hamm. 114 ; Hauser v. Shore, 5 Ired. Eq. (JST. C.) 357 ; 8ims v. Lively, 14 B. Monr. (Ky.) 348. § 7. Wliere the testator reposes the trust of applying the money in the trustee. In a late case in England, the Lord Chancellor observed, "that. if a trust be created for the payment of debts and legacies, the purchaser or mortgagee shall in no case be bound to see to the application of the money raised. This would be a consistent rule on which everybody would be able to act, authorized, too, by the words of the testator, and drawing none of those fine distinctions which embarrass courts and counsel, and lead to litigation." Stronghill v. Anstey, 1 De G., M. & G. 653. The rule, as thus stated, is placed upon the ground that when a testator, by his will, has given his trustees a power to sell to pay debts generally, or to pay particular debts, or to pay legacies only, he has reposed a special confidence in the trustee for those APPLICATION OF PURCHASE-MONEY. 831 purposes ; and in all such cases, it is unreasonable to require the purchaser to look to the application. Id. This principle has been characterized as the true one to designate an intelligi- ble distinction among the cases. See 2 Story's Eq. Juris. 1132 a ; 3 Redf. on Wills, 236 ; see, also, Orant v. Hook, 13 Serg. & R. 269 ; Cadbury v. Duval, 10 Barr (Penn.), 265. d«2 ASSAULT AND BATTERY. CHAPTER XIII. ASSAULT AND BATTERY. ARTICLE 1. OF ASSAULT AND BATTERY. Section 1. Wliat is an assault. An assault is an attempt oi offer to strike, beat, or commit any other act of violence on the person of another, and against his will, without actually doing it, cr touching his person. Johnson v. Tomp'ki7is, 1 Baldw. (C. C.) 571, 600. Or, as otherwise defined, an assault is an unequivocal purposeof violence, accompanied by an act, which, if not stopped or diverted, will be followed by personal injury. State v. Mal- colm, 8 Iowa, 413 ; People v. Yslas, 27 Cal. 630 ; and see Com- monwealth V. Ruggles, 6 Allen (Mass.), 588 ; Hays v. The People, 1 Hill (N. Y.), 351 ; State v. Yannoy, 65 N. C. 532 ; Reg. V. Martin, 9 C. & P. 215 ; Christopher son Y.Bare, 11 Q. B. 473 An assault may consist in striking at another with the hand, oi with a stick, or by shaking the fist at him, or presenting a guE or other weapon within such distance as that a hurt might be given, or by drawing a sword and brandishing it in a menacing manner ; provided the act is done with intent to do some corpora] injury. United States v. Hand, 3 Wash. 425; Richels v. State^ 1 Sneed (Tenn.), 606 ; United States v. Ortega, 4 Wash. 534 ; Murray v. Boyne, 42 Mo. 472 ; State v. Hampton, 63 N. C. 13 ; United States v. Myers, 1 Cranch (C. C), 310. To constitute an assault with a gun or pistol, it is necessary that the weapon should be presented at the party assaulted, within the distance at which it may do execution. Tower v. State, 43 Ala. 354 ; see Higginbotham v. State, 23 Tex. 574 ; State v. Epperson, 27 Mo. 255 ; State v. Church, 63 N. C. 15. But it is immaterial whether the weapon be loaded or not, if the plaintiff was ignorant upon that point. Beach v. Hancock, 7 Fost. (N. H.) 223 ; State v. Smith, 2 Humph. (Tenn.) 457 ; State v. Shepard, 10 Iowa, 126 ; Commonwealth v. White, 110 Mass. 407 ; Crow v. State, 41 Texas, 468. It is an assault, if o"ne person ride after another, and oblige him to run to a place of safety, in order to avoid injury, Morton V. Sfioppee, 3 C. & P. 373 ; see State v. Rawles, 65 N. C. 334 ; ASSAULT AND BATTERY. 333 State V. Sims, 3 Strobli. (S. C.) 137. Or, if lie throw at him a mis- Bile capable of doing injury, with intent to wound, though it doea not strike. Morton v. Shoppee, 3 C. & P. 373. Or advances, in a menacing attitude, to strike the plaintiff, so that the blow would in a few seconds have reached him, if tlip defendant had not been stopped. Stephen v. Myers, 4 id. 349. Or even, if at the time the defeiKlant was stopped, he was not near enough for his blow to have taken effect. State y.Vannoy, m N. C 532. To violently attack and strike with a club, the horse harnessed to a carriage in which a person is riding, would seem to be an assault upon the person. De Marentille v. Oliver, 1 Penning. (N. J.) 380; see Kirland v. State, 43 Ind. 146. And to approach a person in possession of chattels, brandishing a knife and threat- ening and intending to do him bodily harm, unless he yields pos- session, is an assault. Barnes v. Martin, 15 Wis. 240 ; see, also, United States v. MicTiardson, 5 Cranch (C. C), 348 ; State v. Morgan, 3 Ired. L. (N. C.) 186. So, where the defendant ordered the plaintiff to leave his shop, and on his refusal, sent for some men, who gathered round the plaintiff, tucked up their sleeves and aprons, and threatened to break his neck if he did not go out, and would have put him out if he had not gone out; this was held to be an assault upon the plaintiff. Head v. Goker, 24 Eng, Law & Eq. 213 ; S. C, 13 C. B. 850. Cutting off the hair of a pauper in a poor-house was held to be an assault. Forde v. Skinner, 4 C. & P. 239 ; and so, of hitting at one man and unin- tentionally striking another. James v. Campbell, 5 C. & P. 372; see State v. Myers, 19 Iowa, 517. And to put a deleterious drug into coffee, in order that another may take it, if it is actually taken, amounts to an assault. Button] s Case, 8 Carr. & P. 660. And it is an assault to take indecent liberties with a female pupil or patient, although no resistance be offered. Rex v. Hos- insM, Ry. & M. 19 ; RexY. Nicliol, Russ. & Ry. 130; see Hays V. Tlie People, 1 Hill (N. Y.), 351 ; Rex v. Jackson, Russ. & Ry. 487. § 2, What is not an assault. Mere threats, unaccompanied by an offer or attempt to inflict bodily harm, do not constitute an assault. State v. Mooney, Phill. L. (N. C.) 434 ; Smith v. State, 39 Miss. 521 ; Keyes-v. Devlin, 3 E. D., Smith (N. Y.), 518 ; Ste- phens V. Myers, 4 C. & P. 349. And words accompanying a threatening gesture may deprive the gesture of the character of an assault {Commonwealth v. Eyre, 1 Serg. & R. [Pa.] 347) ; as where the defendant raised his whip, and shook it at the plaintiff, 334 ASSAULT AND BATTERY. thougn within striking distance, and made use of the words ; " Were you not an old man, I would knock you down " {State V. Crow, 1 Ired. L. [N C] 375) ; or, where one said, laying his hand on his sword in a threatening manner, "If it were not assize-time I would not take such lang-uage from you." Tuber - ville V. Savage, 1 Mod. 3. So it has been held that, if a man pre- sents an unloaded pistol at another, and at the same time says that he does not intend to shoot him, this is no assault. Blake V. Barnard, 9 C. & P. 628. The drawing a pistol, without presenting or cocking it, does not amount to an assault. -Lawson v. State, 30 Ala. 14. And the same was held where a person, holding a cocked pistol by his side, said to his antagonist, without any attempt to use the pistol, " I am now ready for you." Warren v. State, 33 Tex. 517. So holding the pistol in the hand or hands, pointing in the direc- tion of a man within distance, but not held as if about to fire, and without the immediate intention to fire, is not a presenting, and does not constitute an assault. Woodruff v. Woodruff, 22 Ga. 237 ; Farver v. State, 43 Ala. 354. And where the defendant presented a gun, within shooting distance, against the prosecu- tor, who was then armed with a knife and about to attack the defendant, but there was no attempt to use the gun nor any in- tention to use it, unless first assailed with the knife, this was held no assault. State v. Blackwell, 9 id. 79. A person who fires a pistol merely to frighten an assailant, and hits him, is not guilty of an assault and battery if the attack was so formidable as to justify in self-defense the defendant, thus exposing the person of the assailant to danger. Commonwealth V. Mann, 116 Mass. 68. Stopping and preventing a person by means of threats, from passing along the public highway, was held to be an illegal im- prisonment and an assault. Bloomer v. State, 3 Sneed (Tenn.), 66. But to stand in another' s way, and passively obstruct his progress, as any inanimate object would, though by design, is no assault ; as where a policeman, in this manner, prevented a member of a society from entering the society's room. Innes v. Wylie, 1 Car. & K. 257. And, generally, any mere omission will not constitute an assault. Thus, where a man kept an idiot, bed-ridden brother in a dark room in his house, without sufficient warmth or clothing, it was held not to amount to an assault. 8mit7i's case, 2 Carr. & P. 449. So it is no assault to separate persons who are fighting. Griffin v. Parsons, 1 Selw. 25, 26. ASSAULT AND BATTERY. 336 Acts whicli may embarrass and distress do not necessarily amount to an assault. Thus, a declaration alleging that the de- fendant, with force and arms, committed an assault upon the female plaintiff, is not sustained by evidence, that the defendant, a reasonable time after determining the plaintiff's tenancy, peace- ably entered the premises, requested the plaintiffs to leave and remove their furniture, and upon their refusal burst open an inner door, which she wrongfully fastened and refused to open, took off the doors and windows on a cold day in winter, brought a bloodhound into the house, made a great noise in the premises for several days, and refused to permit any food to be furnished to her from the outside. Stearns v. Sampson, 59 Me. 568 ; S. C, 8 Am. Rep. 442. So, a declaration which alleges that A broke and en- tered a house, and committed an assault on B therein, is not proved, as to the assault, by evidence that A, having a right to immediate possession of the house, entered the same and forci- bly took away the windows of the room in which B was sick in bed, without evidence that A knew that B was in the house. Meader v. Stone, 7 Mete. (IVIass.) 147. § 3. What is a battery. A battery is an unlawful touching the person of another by the aggressor himself, or by any other sub- stance put in motion by him. 1 Saund. 29. And see Common' wealth V. liuggles, 6 Allen (Mass.), 588 ; Kirland v. Sta.te, 43 Ind. 146 ; S. C, 13 Am. Rep. 386, 392 ; Johnson v. State, 35 Ala. 363. And every battery includes an assault. Johnson v. State, 17 Tex. 515. The mere laying of the hand gently on the person of another, if done in anger, or in a rude and insolent manner, or with a view to hostility, amounts to a battery. Id. Cole v. Turner, 6 Mod. 149; United States v. Ortega, 4 Wash. 534. So, if one is violently jostled out of the way, or is spit upon. James V. Campbell, 5 Carr. & P. 372 ; Beg. v. Cotesworth, 6 Mod. 172 ; or has his hat insolently knocked of. Ford v. SJcinner, 4 Carr. & P. 239; or has water, stones, or dirt rudely thrown upon him; Pur sell V. Horn, 8 Ad. & El. 604 ; or is pushed back by the open hand of another placed upon his breast. State v. Balcer, Qa N. C. 322 ; the person guilty of the violence in these cases may be held liable in an action for an assault and battery. And any thing attached to the person partakes of its inviolability; hence, a blow on the skirt of one' s coat, when upon his person, is an assault and battery. Hepublica v. DeLong champs, 1 Dall. 114. And so of striking one's cane, while in his hand. Id. Kirland V. State, 43 Ind. 146 ; S. C, 13 Am. Rep. 386, 392 ; or taking hold 336 ASSAULT AND BATTERY. of one's clothes in an angry or iusolent manner. United Slates V. Ortega, 4 Wasli. 534. Striking a horse which a man is riding, whereby he is thrown, is a battery {Dodwell v. Burford, 1 Mod. 24 ; S. C., 1 Sid. 433 ; Bull v. Colton, 22 Barb. 94. See Kirland V. State, 43 Ind. 146 ; S. C, 13 Am. Rep. 386); as is likewise up- setting a carriage or chair, in which one is sitting. Hopper v. Reeve, 7 Taunt. 698. And it is a battery for an officer to hand- cuff a prisoner previous to his conviction, when there is no at- , tempt to escape, nor any reasonable ground to fear a rescue. Griffin v. Coleman, 4 H. & N. 265 ; Wright v. Court, 4 B. & C. 596. Although the least touching of another in anger is a battery, yet the mere taking hold of the coat, or laying the hand gently upon the person, does not amount to this offense, if done in friendship, or for a benevolent purpose, and the like. See Cole V. Turner, 6 Mod. 149 ; United States v. Ortega, 4 Wash. (C. C.) 531 ; Coward v. Baddeley, 4 H. & N. 481 ; Wiffin v. Kincard, 2 B. & P. (N. R.) 472. The party's intention must be considered, for people will sometimes, by way of joke or in friendship, clap a man on the back, and it would be ridiculous to say that every such case constitutes a battery. Lord Hardwicke, in Williams V. Jones, Hard. 301. See Fitzgerald v. Camn, 110 Mass. 153. § 4. Wounding and mayhem. Where the assault is carried to the extent of wounding a person, the offense is, of course, re- garded in a much more serious light than a common assault, and the person injured will be entitled to recover heavy damages, unless the wounding can be justified or excused in some of the ways to be hereafter mentioned. Mayhem is defined to be the act of unlawfully and violently depriving another of the use of such of his members as may render him less able in fighting, either to defend himself or annoy his adversary. 2 Bouv. Diet. 163. Thus the cutting or disabling, or weakening, a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which abates his courage, are held to be mayhems. Id.; CMcTc \. State, 7 Humph. (Tenn.) 161. But cutting off the ear or nose, or the like, are not held to be may- hems at common law. 4 Bl. Com. 205. See Godfrey v. People, 5 Hun (N. Y.), 369. Mayhem is an aggravated trespass {Commonwealth v. Newell^ 1 >rass. 245, 248) ; and one peculiar feature for an action at common law for a mayhem is said to be that the court in which the action is brought have a discretionary power to increase the ASSAULT AND BATTERY. 837 damages, if they think the jary at the trial have not been suffi- ciently liberal to the plaintiff. But this must be done super msum vulneris^ and upon proof that it is the same wound con- cerning which evidence was given to the jury. See Brown v. Seymour, 1 Wils. 5 ; CooJc v. Beal, 1 Ld. Raym. 176, 339 ; S. C, 3 Salk. 115 ; Bui. (N. P.) 21. It would seem, however, that this common-law rule is no longer recognized, and the true doctrine is, that in all cases sounding in damages, these damages are to be assessed by the jury, under the authority of the court, and not by the court independently of the jury. McCoy v. Lemon^ 11 Rich. (S. C.) 165; Worster v. Proprietors of Canal Bridge, 16 Pick. (Mass.) 547. ARTICLE II. OF DEFEASES, EXCUSES ATST) JUSTIFICATION-. Section 1. Accident. The subject of accident has been discussed at length in a preceding chapter. See ante, 160, chap. III. It may be stated generally, however, that if an injury is occasioned by an unavoidable accident, no action will lie for it ; but if any blame is imputable to the defendant, though he had no intention to injure the plaintiff or any other person, he is liable for the dam- ages sustained. Dygert v. Bradley, 8 Wend. 469 ; Harvey v. Dunlop, Hill & Denio (N. Y.), 193; Brown v. Collins, 53 N. H. 442 ; 16 Am. Rep. 372 ; Losee v. Buchanan, 51 ]^. Y. (6 Sick.) 476; S. C, 10 Am. Rep. 623. By an unavoidable accident, in legal phraseology, is not to be understood an accident which it was physically impossible in the nature of things for the defendant to have prevented ; but that it was not occasioned in any degree, either remotely or directly, by the want of such care or skill as the law holds every man bound to exercise. Wa'kenian v. RoMnson, 1 Bing. 212 ; Dygert v. Bradley, 8 Wend. 469 ; and see Brown V. Kendall, 6 Cush. (Mass.) 292 ; Paxton v. Boyer, 67 111. 132 ; 16 Am. Rep. 615 ; Castle v. Duryea, 32 Barb. 280; S. C. affirmed, 2 Keyes, 169 ; 1 Abb. Ct. App. (N. Y.) 169. § 2. Self-defense. An action for assault and battery may be successfully defended on the principle of self-defense ; for if one strikes me first, or even only assaults me, I may strike in my own defense, and if sued for it may plead son assault demesne^ or that it was the plaintiff's own original assault that occasioned it 3 Bl. Com. 120; 3 Broom & Had. 129 ; vol. 2, 109, Wait's ed. Vol. L— 43 338 ' ASSAULT AND BATTERY. And a person is not liable for an unintentional injury resulting from the exercise of his right of self-defense, where neither neg ligence or folly is proved against him. Paxton v. Boyer, 67 HI. 132; S. C, 16 Am. Kep. 615. Thus, where a person in lawful self-defense fires a pistol at an assailant, and missing him wounds an innocent by-stander, he is not liable for the injury, if guilty of no negligence. Morris v. Piatt ^ 32 Conn. 75. But in repelling an assault, the force employed must be appropriate in kind and suitable in degree. See Murray v. Boyne, 42 Mo. 472; Baldwin v. Hayden, 6 Conn. 453 ; Hazel v. Clark, 3 Harr. (Del.) 22 ; Gregory v. Hill, 8 Term. R. 299 ; Gallagher v. State, 3 Minn. 270 ; Taylor v. Clendening, 4 Kans. 524. Thus, as a gen- eral rule, the law will not justify a man who repels a blow with the fist, by stabbing his assailant ; but whether or not such stabbing amounts to self-defense, depends upon the nature and violence of the assault thus repelled. Floyd v. State, 36 Ga. 91. And in an action for an assault by shooting, it was held that a man who is assaulted under such circumstances as authorize a reasonable belief that the assault is made with a design to take his life, or inflict extreme bodily injury, will be justified if he kill, or attempt to kill, his assailant. Morris v. Piatt, 32 Conn. 75. So, the degree of force which may be employed in repelling the assault depends to some extent upon the known character of the assailant, whether peaceable or quarrelsome. Harrison v. Harrison, 43 Yt. 417. It is not a man's belief, simply, that he will be struck, that will justify him in striking first, but this belief founded on reasonable grounds of apprehension. State v. Bryson, 1 Wins. (N. C.) No. 2, 86. And a person who seeks a fight, or provokes another to strike him, cannot justify a blow on the ground of self-defense. Id. Watrous v. Steel, 4 Vt. 629. § 3. Defense of another. The right to repel an assault by force is not restricted to the defense of one's own person, but also ex- tends to the mutual and reciprocal defense of eacli other by husband and wife, parent and child, master and servant. 2 Broom & Had. Com. (Wait's notes) 2 ; Hathaway v. Rice, 19 Vt. 102. But it is held that a son can justify an assault and battery in defense of his father only where the latter was first assailed, and was resisting the attack when the former interfered ; and only to the extent of such force as may be necessary for the father's defense. Ohier v. Neal, 1 Houst. (Del.) 449. To justify an assault by the father, in defense of his son, it is BufB.cient if the danger to the latter is such as to induce a person ASSAULT AND BATTERY. 339 exercising a reasonable judgment to interfere, in ordei to pre- vent the consummation of the injury. HiU v. Roger'' 2 1 Dwa. 67. That a person may lawfully interfere in behalf of a stranger, and employ a reasonable amount of force to protect him from unlaw- ful violence, thus avoiding a breach of the peace. See Mellen v. Thompson, 32 Vt. 407. § 4. Defense of land, house, etc. The rightful owner of a house or lands, being in the peaceable possession thereof, and having the right to the possession, will be justified in using all necessary force to defend his possession against any forcible attempt made to expel him. Gregory v. Hill, 8 T. R. 299 ; Corey v. The Peo- ple, 45 Barb. 262 ; Parsons v. Brown, 16 id. 590. And the son of the owner, acting under the latter' s authority, has likewise the same right. TribUe v. Frame, 7 J. J. Marsh. (Ky.) 599, 617. So one who has rented a house, as tenant of the owner, and acts under him in entering it, possesses the same right to use force in keeping the possession that the owner has. Corey v. The People, 45 Barb. 262. And mechanics who are in charge of a house which they are engaged in building, have a right to gently remove persons coming into the building without author- ity. United States Y.Bartle, 1 Cranch (C. C), 236, But one having a right to enter on land and make improvements, not interfering with the tenant's farming operations, cannot be for- cibly expelled until he actually does so interfere. McAnley v. State, 3 Iowa, 435. And a tenant in common has no right to inflict a battery upon one who enters upon the land under the authority of the co-tenant ; and, in this respect, there is no dis- tinction between the co-tenant and one entering with him, and under his authority. Cansee v. Anders, 4 Dev. & B. L. (N. C.) 246 ; and see Commonwealth v LaTieman, 4 Cush. (Mass.) 597. It has been held, however, that where A gives B verbal per- mission "to dig and carry away ore," and B assigns the license to C, who enters forcibly into the premises of A, the latter being at the time the owner of the freehold, and warning C not to at- tempt to enter, C is a trespasser, and may be resisted by A with all the force requisite to protect his possession- Riddle v. Brown, 20 Ala. 412. If a person enters a house with force and violence, the person whose house is entered may justify turning him out by force, without making a previous request to him to depart {Tullay v. Reed, 1 Carr. & P. 6); but if he enters quietly he must be requested to leave, and upon refusing to do so, the owner may then use 340 ASSAULT AND BATTERT as much force as is necessary to put him out. 1 1.; Stcte v. Wood- ward^ 50 N. H. 527. So, one who enters an office for the transac- tion of business may be ejected by the owner or agent, after a request to leave and a refusal, no more force being used than is necessary. 45 111. 367. See Esty v. Wilmot, 15 G-ray (Mass.), 168 : Pierce v. Hicks, 34 Ga. 259 ; Timotliy v. Simpson, 6 Carr. & P. 500. And the sale of a ticket of admission to a place of public amusement is held to be only a revocable license to the pur- chaser to enter the building or inclosure to attend the perform- ance ; and, if revoked before the performance has commenced, and before he has taken the seat to which the ticket entitles him, and he remains therein after notice of the revocation and refuses to depart upon request, he becomes a trespasser, and may be removed by the use of such force as is necessary for the purpose. Burton v. Sclierpf, 1 Allen (Mass.), 133 ; McCrea v. Marsh, 12 Gray (Mass.), 211; Wood v. Leadbitter, 13 Mees. & Wels. 838; Bridges v. Pur cell, 1 Dev. & Bat. (N. C.) 492. But, where one has entered the house of another in a peaceable manner and for a lawful purpose, he may rightfully resist any attempt to eject him, before his purpose has been accomplished. Thus, where one is lawfully in the house of another for the purpose of serv- ing a subpoena, he may use such force as is necessary to over- come any resistance he may meet with in the service of the subpoena, being liable only for an excess of violence beyond what is necessary to overcome the resistance. Hagar v, Dan- forth, 20 Barb. 16 ; reversing S. C, 8 How. 435. And any per- son has a right, though merely from motives of curiosity, to enter the office of a clerk of court, when open for public busi- ness, and remain so long as he conducts himself properly, and impedes not the business ; and an action of trespass will lie against a clerk who ejects him therefrom. O Hara v. King, 62 111. 303. It is as unlawful for a grown son or daughter to create a dis- turbance in the family as for a mere stranger ; and the father, as the head of the family, may as rightfully interpose to preserve the good order and propriety of his household in the one case as in the other, and such interference will not be an assault. Smith v. Slocum, 62 111. 354. § 6. Defense of personal property. At common law, the owner of goods and chattels personal may justify a battery of a per- son who endeavors wrongfully to dispossess him of them. 3 Bl, Com. 4; see Gates v. Lounshury, 20 Jchns. 427: Scribner v ASSAULT AND BATTERY. 341 BeacTi^ 4 Deriio, 448; and if the goods are wrongfully in tiie possession of another, the owner, or his servants acting by his command, may justify an assault in order to repossess himself of them, no unnecessary violence being used. Id. Blades v. Higgs, 10 Com. B. (N. S.) 713. See 2 Broom & Had. (Wait's Notes) 4, note 429. The owner, in retaking his goods, is -not jus- tified in using such force or violence as would amount to a breach of the peace. Id. Barnes v. Martin^ 15 Wis. 240 ; Andre V. Johnson, 6 Blackf. (Ind.) 375 ; State v. Elliot, 11 X. H. 540. And it is held that the defendant cannot justify an assault on the ground that he had an irrevocable license to enter upon the plaintiff's land for the purpose of removing his personal prop- erty therefrom, and that the plaintiff withstood his entry. ChurcMU V. HulberL 110 Mass. 42 ; S. C, 14 Am. Rep. 578. § 6. Preserying the peace, etc. A person who witnesses an affray may, during its continuance, and for the purpose of put- ting a stop thereto, lay hands upon those engaged in the affraj^-. Noden v. Johnson, 16 Q. B. 218. And where one comes up in the midst of an affray, and forcibly interferes as a peacemaker by separating the combatants and preventing further violence, he is not guilty of a trespass, unless he uses more violence than is reasonably necessary for the purpose. Timothy v. Simpson, 6 Carr. & P. 500. The master of a vessel has an undoubted authority to punish corporeally and summarily the negligence or misconduct of his men. United States v. Hunt, 2 Story, 120 ; Bangs v. LittUy Ware, 506. Yet it is not an arbitrary and uncontrolled author- ity, and he is amenable to the law for the due exercise of it. Broion v. Hoioard, 14 Johns. 119. The rule on the subject has thus been stated : " By the common law, the master has author- ity over all the mariners on board the ship, and it is their duty to obey his commands in all lawful matters relative to the navi- gation of the ship, and the preservation of good order ; and in case of disobedience or disorderly conduct, he may lawfully cor- rect them in a reasonable manner ; his authority, in this respect, being analogous to that of a parent over a child, or a mastei over his apprentice or scholar. Such an authority is absolutely necessary to the safety of the ship, and of the lives of the per- sons on board ; but it behooves the master to be very careful in the exercise of it, and not to make his parental power a pretext for cruelty and oppression." Abb. on Ship. 125. And see 342 ASSAULT AND BATTERY. United States v. Freeman^ 4 Mason, 512 ; Fuller v. Colby, 3 Woodb. & Minot, 13 ; Thompson v. Busch, 4 Wash. (C. C.) 340. Except in the case of mariners on board ship, or in the case of bound apprentices, a master has no lawful authority to chastise his hired servant, otherwise than by words and remonstrance ; and if he beat him, though moderately, by way of correction, it is good ground for the servant' s departure, and he may support an action against the master for the battery. Winstone v. Linn, 1 B. & C. 469 ; MatJiews v. Terry, 10 Conn. 455 ; Newman v. Bennett, 2 Chit. 195. So a man has no law^ful authority to beat his wife {FulgTiam v. State, 46 Ala. 143 ; People v. Winters, 2 Park. [N. Y.] 10), even though she be drunk or insolent. Com- monwealtJi v. Thom%Json, 108 Mass. 461. But he may defend himself against her, and may restrain her from acts of violence toward himself or toward otliers {People v. Winters, 2 Park. [N. Y.] 10) ; and an action for an assault and battery will not lie by a feme covert against her husband. Longendylce v. Longen- dylce, 44 Barb. 366. A schoolmaster is justified in the exercise of that amount of restraint toward a pupil which is necessary to answer the pur- poses of his employment ; and he may lawfully resort to the use of as much force as may be necessary to remove a re- fractory scholar from the school, who refuses to leave on being requested to do so. State v. Williams, 27 Yt. 755. But the power to exercise corporal punishment must not be used as a pretext for cruelty and oppression. The cause must be sufficient, the instrument suitable, and the manner and extent of the correc- tion, and the temper in which it is inflicted, should be distin- guished with the kindness, prudence, and propriety becoming the station. Cooper v. McJunkin, 4 Ind. 290 ; Gardner v. State, id. 632 ; see Lander v. Seaver, 32 Yt. 114 ; Commonwealth v. Ran- dall, 4 Gray (Mass.), 36. A father has a right to direct which of the studies taught in a public school shall be pursued by his infant child who attends as a scholar; and, if a teacher who has notice of the father's direc- tion, requires him to pursue other studies, and whips him for not doing so, he will be guilty of an assault and battery. Mor- row V. Wood, 35 Wis. 59 ; S. C, 17 Am. Rep. 471. § 7. Provocation. An assault is sufficient to justify a blow, unless the battery be excessive. Hazel v. ClarTc, 3 Harr. (Del.) 22 ; Dale v. Wood, 7 Moore, 33. But no words of provocation, however angry and irritating, will justify an assault and battery. ASSAULT AND BATTERY. 34i Cushman y. Ryan, 1 Story, 91 ; TJiompson v. Mumma, 21 Iowa, 65. And although a man assaulted in his own house need not retreat, but may use any degree of force or violence necessary for his protection, yet, even here, mere words, however violent, will not furnish a justifiable cause for an attack. State v. Martin, 30 Wis. 216. AVords of provocation may, however, go in mitigation of damages. Waters v. Brown, 3 A. K. Marsh. (Ky.) 559 ; Murray V. Boyne, 42 Mo. 472 ; Shorter v. People, 2 N. Y. (2 Comst.) 193. But, to entitle the defendant to give evidence of provocation in mitigation of damages, the provocation must be so recent and immediate as to induce a presumption that the violence done was committed under the immediate influence of the feelings and passions excited by it. Id.; CoxeY.Wliitney, 9 Me. 531; Leev. Woolsey, 19 Johns. 319 ; Barry v. Ingles, 2 Hayw. (N. C.) 102. § 8. Expulsion by innkeepers. An inn is a public house of entertainment for all who choose to visit it; and the innkeeper is obliged to entertain and furnish all travelers of good conduct and means of payment with what they may have occasion for as such travelers, whilst on their way. PinTierton v. Wood^ ward, 33 Cal. 557 ; ComrPvonwealth v. Mitchell, 1 Phil. (1 Penn.) 63. But, if an iadividual has entered a public inn, and his presence is disagreeable to the proprietor or his guests, he has a right to request the person to depart; and if he refuses, the innkeeper has the right to lay his hands gently upon him, and lead him out, and if resistance is made, to employ sufficient force to put him out. And for so doing he can justify his conduct on a prose- cution for assault and battery. Id.; S. C, 2 Pars. Sel. Cas. (Penn.) 431; Howell v. Jackson, 6 Carr. & P. 723 ; Webster v. Watts, 11 Q. B. 311 ; MarTiham v. Brown, 8 N. H. 523. See Inn-keepers. § 9. Removing from religious meetings. A religious society may prescribe such rules as they think proper for preserving order while assembled for public worship ; and a person disturb- ing a religious meeting, and interrupting its order and decorum, may be removed therefrom by the application of force sufficient for that purpose. McLain v. Matlock, 7 Ind. 525 ; Beckett v. Lawrence,! Abb. (N. Y.) 403, And to justify the application of force for the removal of a person interrupting the order and decorum of such meeting, it is not necessary to show that the disturbance was willful. Wall v. Lee, 34 N. Y. (7 Tifi".) 141; Ballard v. Bond, 1 Jur. 7. But the offender should be requested to retire, before the application of force for his removal. Id. 844 ASSAULT AND bItTERI. § 10. Ejecting- from public conveyances. A person, who un reasonably refuses to pay his fare on a railroad train, may be ejected forthwith, without being taken to a regular station. McClure v. PhiladelpJiia, etc., R. R. Co., 34 Md. 532 ; see Fink V. Albany, etc., R. R. Co., 4 Lans. (N. Y.) 147. So, where a rail- road or steamboat company have appointed a superintendent with authority, by himself and his assistants, to have charge of the depot and manage its concerns, it is incident to his authority to exclude, or direct the exclusion of persons who persist in vio- lating the reasonable regulations prescribed, and thereby inter- rupt the officers and servants of the company in the discharge of their respective duties, or annoy passengers. Commonwealth V. Power, 7 Mete. (Mass.) 726; Stephen v. Smith, 29 Yt. 160; Jencks v. Coleman, 2 Sumner, 221. But no greater force should be used than is necessary for the purpose, id.; and the right of a railway conductor to eject a person from the cars for not paying his fare upon request to do so, must be exercised with regard to the particular circumstances of the case. See Illinois, etc., R. R. Co. V. Sutton, 63 111. 397; Mobile, etc., R. R. Co. v. Mc Arthur, 43 Miss. 180. Thus, a railroad company may be held liable in damages for forcibly expelling a person while a train is in motion, and it is no defense that such person was not rightfully on the train. Law v. Illinois, etc., R. R. Co., 32 Iowa, 534 ; Samford V. Eighth Avenue R. R. Co., 23 N. Y. (9 Smith) 343 ; Kline v. Central, etc., R. R. Co., 39 Cal. 687 ; Rounds v. Delaware, etc., R. R. Co., 3 Hun (N. Y.), 329 ; S. C, 5 Pars. 475 ; see Jackson V. Second Avenue R. R. Co., 47 N.Y. (2 Sick.) 274 ; S. C, 7 Am. Rep. 448. For a full statement of the law on this subject, see Railways and Common Carriers. § 11. Consent. An assault implies force upon one side, and repulsion, or, at least, want of assent, upon the other. An assault upon a consenting party would, therefore, be a legal absurdity. Smith v. State, 12 Ohio St. 466 ; Duncan v. Common- wealth, 6 Dana (Ky.), 596 ; see ante, 36, 146. It has accordingly been held that, in an action by husband and wife for an assault and battery on her, it is a good defense that the act complained of was committed with the consent, and at the request of the wife. Pillow V. Bushnell, 5 Barb. 166. And where one was whipped at his own request, to save him, as was supposed, from punish- ment for felony, it was held, that the act was not punishable, if done without malicious or revengeful motives. State v. Becky 1 Hill (S. C), 363. But a party may recover for an assault and ASSAULT AND BATTERY. 345 battery, notwithstanding lie and his adversary fought by mutual consent. Logan v. Austin, 1 Stew. (Ala.) 476 ; Bell v. Hansley, 3 Jones' L. (N. C.) 131 Stout v. Wren, 1 Hawks. (N. C.) 420. § 12. Damages in general. In actions for assault and battery there is said to be no precise rule bj?" which the damages may be measured ; but that the same must be left to the discretion of a jury. CommonwealtTi v. Sessions of Norfolk, 5 Mass. 435, 437. This discretion is exercised by duly weighing all the circum- stances of the case, and considering the state, degree, quality, trade and profession, as well of the party injured as of him who did the injury. Cojffin v. Cofin, 4 Mass. 41. And see Cox V. VanderJcleed, 21 Ind. 164 ; Slatert v. RinJi, 18 111. 527 ; Bruns- wick V. Slowman, 8 C. B. 317 ; WadsioortTi v. Treat, 43 Me. 163. The plaintiff in such an action, without alleging special damages, is not confined to the recovery of merely nominal damages, but may recover such general damages as he may prove to have re- sulted from the injury. Andrews v. Stone, 10 Minn. 72. In estimating the damages, personal suffering, as well as medical expenses and the direct pecuniary loss, are proper subjects for compensation {Ransom v. N. Y. & Erie R. R. Co., 15 N. Y. [1 Smith] 415 ; Smith v. Holcomh, 99 Mass. 552 ; Pennsyltiania^ ,tc., Canal Co. v. Graham, 63 Penn. St. 290 ; Smith v. Overby, 30 Chi. 241 ; Klein v. Thompson, 19 Ohio St. 569) ; and it is held that the expenses of the litigation may also be taken into con- -ideration. Cleveland, etc., R. R. Co. v. Bartram, 11 Ohio St. 457 ; New Orleans, etc., R. R. Co. v. Allbritton, 38 Miss. 242 ; Noyes v. Ward, 19 Conn. 250. So it is proper for the jury to take in*to consideration any natural and necessary consequences resulting to the plaintiff from the act of violence, and to allow damages therefor. Fetter v. Beale, 1 Ld. Raym. 339 ; Moor v. Adams, 2 Chit. 198 ; Slater v. Rink, 18 111. 527. The mental suf- fering of the plaintiff from the insult and indignity of the de- fendant's blows, may likewise be considered by the jury. Smith V. Holcomh, 99 Mass. 552 ; Wadsworth v. Treat, 43 Me. 163 ; Ford V. Jones, 62 Barb. 484. And even where there is no insult or indignity, mental suffering may be ground of damage. Can- ning V. Williamstoion, 1 Cush. (Mass.) 451. § 13. Aggravation of damages. In an action for an assault and battery, the plaintiff usually, and as a general rule, has a right to expect a fair compensation in damages for the injury really sustained ; but, in addition to this, the jury may sometimes be called uj)on to give exemplary damages by way of punishment Vol. I. — 44 346 ASSAULT AND BATTERY. where it appears that the defendant was actuated by malice and a total disregard of the laws, and the plaintiff was in no wise to blame. Causee v. Anders, 4 Dev. & B. L. (N. C.) 246 ; McNa- mara v. King, 7 111. 432 ; Wilson v. lliddleton, 2 Cal. 54 ; Ouen- gerich v. Smith, 37 Iowa, 587. Thus, where at the close of a trial, and immediately upon the adjournment of the court there- after, in the court-room and in the presence of a large number of persons, one of the parties to the suit deliberately spat in the face of the other, it was held, in an action brought by the in- jured party against the perpetrator of the act, that the case was a most lit one for the award of punitive damages, and it ap- pearing that the defendant was a wealthy man, a verdict for $1,000 was regarded as not excessive. Alcorn v. MitcJiell^ 63 111. 553. So, generally, a jury is authorized to give exemplary damages, where the elements of fraud, malice, gross negligence, or oppression, mingle in and form part of the cause of action. Albert Wiley v. Keolcuk, 6 Kans. 94 ; Malone V. Murphy, 2 id. 250 ; Oore v. Chadwick, 6 Dana (Ky.), 477 ; West V. Forrest, 22 Mo. 344 ; New Orleans, etc., E. R. Co. v- Statham, 42 Miss. 607; Baltimore R. R. Co. v. Breintg, 25 Md. 378; Etchlerry v. Lemelle, 2 Hilt. (N. Y.) 40; Klingman v. Holmes, 54 Mo. 304. And such damages may be awarded even though the defendant is liable to be punished criminally. Wilson v. Middleton, 2 Cal. 54 ; or has been already so punished. Hoadley v. Watson, 45 Vt. 289 ; Jefferson v. Adams, 4 Harr. (Del.) 321; Phillips v, Kelly, 29 Ala. 628; Roberts v. Mason, 10 Ohio St. 277. But it is otherwise in Indi- ana, in cases of malicious trespass. Butler v. Mercer, 14 Ind. 479. And in New Hampshire, damages recoverable in a civil ac- tion for assault and battery, must be founded on the idea of compensation for the injury. The jury may allow for injury to the feelings as well as to the person. But to go beyond all ele- ments of injury to the plaintiff, and give what are literally puni- tive damages, is not allowable. Fay v. Parker, 53 N. H. 342 ; see, also, Smith v. Pittsburgh, etc., R. R. Co., 23 Ohio St. 10; Lucas V. Flinn, 35 Iowa, 9. And in Mooney v. Kennett, 19 Mo. 551, it was held that an instruction allowing "smart money" in case of assault and battery was erroneous. § 14. Mitigation of damages. In an action for assault and bat- tery, it is a general rule, that abusive and insulting language may be shown in evidence, in mitigation of damages, when it immediately precedes the act done, so as naturally to provoke it. ASSAULT AND BATTERY. 347 Cushman v. Ryan, 1 Story, 91 ; State v. Qulnn, 2 Mill. Const. (S. C.) 694; Waters v. Brown, 3 A. K. Marsh. (Ky.) 559 ; Boone V. State, 31 Tex. 557 ; Castner v. Stiker, 33 N. J. (4 Yr.) 95 ; ante, 342, § 7. But each case should be controlled by its own peculiar circumstances ; and it is said, the question should be, not how many hours have elaj)sed since the provocation was given, but whether, in view of the circumstances of the case, the party has had a reasonable time to cool his blood. Dolan V. Fo.gan, 63 Barb. 73. And where the acts done, or the words spoken, are a portion of a series of provocations frequently re- peated and continued down to the time of the assault, they may be proven. Stetlar v. Nellis, 60 Barb. 524 ; S. C, 42 How. (N. Y.) 163. But it would seem that no provocation, amounting to less than justification, will render the defendant liable in less than compensatory damages. BiroTiard v. Booth, 4 Wis. 67 ; see Dresser v. Blair, 28 Mich. 501. And circumstances which amount to a complete justification cannot be given in evidence in mitigation of damages, if those circumstances could have been pleaded. Watson v. Christie, 2 Bos. & Pul. 224. Evidence of declarations of the plaintiff respecting the de- fendant is not admissible in mitigation of damages, unless they are shown to have been communicated to the defendant. Gaither V. Blowers, 11 Md. 536. And where husband and wife join in an action for an assault on the wife, no words or acts of the hus- band can be proved in mitigation of damages unless the wife was privy to them. Everts v. Everts, 3 Mich. 580. 348 ASSETS, ADMINISTRATION OP. CHAPTER XIV. ASSETS, ADMINISTRATION OF. ARTICLE I. GENERAL EULE8 RELATING TO ADMINISTRATION" OF. Section 1. What are to Ibe deemed assets. The word assets is derived from the French word assez, which means sufficient, or enough ; and it formerly signified what its etymology indicates : the property of a deceased person sufficient to pay his debts and legacies. But the word is no longer confined to this original and strictly appropriate meaning, and is now constantly used to signify any property, estate or fund applicable to the payment of debts, though quite insufficient in amount or value for the purpose. 1 Burr. Diet. 142, 143. In an accurate and legal sense, all the personal property of the deceased, which is of a salable nature, and may be converted into ready money, is deemed assets. 1 Broom & Had. 844, n. (Wait's ed.); 2 Bl. Com. 510 ; 1 Story's Eq. Juris., §531. But in a larger sense the real and personal property of the deceased, which, either in the hands of his heir or devisee, or of his executor or administrator, is chargeable with the payment of his debts and legacies, is assets. See Id. ; 1 Broom & Had. 847 (Wait's ed.) ; 2 Bl. Com. 244, 340 ; 2 Steph. Com. 244, note. § 2. Legal assets. The property of a deceased person, which the common law can reach for the purpose of satisfying his creditors, is commonly termed legal assets. See 2 Lead. Cas. Eq. 72, 78 ; Farr v. Newman, 4 T. R. 621. So, legal assets have been defined as those portions of the property of a deceased per- son of which his executor or heir may gain possession, and in respect whereof he may be made chargeable, b}^ the process of the ordinary tribunals, and without the necessity of equitable interference. Adams' Eq. 252. A more accurate description claimed for them is, that they are such as come into the hands and power of an executor or administrator, or such as he is intrusted with by law, mrtute officii., to dispose of in the course of administration. In other words, whatever an execu- tor or administrator takes qua executor or administrator, or in ASSETS, ADMINISTRATION OP. 349 respect to his office, is to be considered legal assets. 1 Story's Eq Juris., §551; and see Attorney-Oeneral v. Brunning^ 6 Jur. (N. S.) 1083 ; Beg v. Deg., 2 P. Wras. 416, and note ; Lovegrove v. Cooper, 2 Sm. & Giff. 271. They consist of the personal estate of the deceased, to which the executor or administrator is entitled by virtue of his office (2 Lead. Gas. Eq. 78); and wherever real estate is by statute made liable for the payment of the debts of the deceased, it also constitutes legal assets. Id. ; OoodcMld v. Terret, 5 Beav. 398. But, notwithstanding such statutory pro- vision, it is held that a devise of real estate for the payment of the testator's debts renders the estate so charged, equitahle and not legal assets. Cliarlton v. Wright, 12 Sim. 274 ; 2 Lead. Cas. Eq. 82, 83. § 3. Equitable assets. Equitable assets are such as cannot be reached without the assistance of equity ; or they are those por- tions of the property which, by the ordinary rules of law, are exempt from debts, but which the testator has voluntarily charged as assets, or which, being non-existent at law, have been created in equity. Thus, where a testator devises land to trustees, to be sold for the paj^ment of debts, the assets result- ing from the execution of the trust are equitable assets upon the plain intent of the testator, notwithstanding the trustees are also made his executors ; for, by directing the sale to be for the pay- ment of debts generally, he excludes all preferences, and the property would not otherwise be liable to the payment of simple contract debts. Benson v. Lfroy, 4 Johns. Ch. 651 ; Bain v. Sadler, L. R., 12 Eq. 570 ; Barker v. May, 9 Barn. & C. 489. And the same principle is applicable, where the testator merely charges his lands with the payment of his debts. Id. See 2 Lead. Cas. Eq. 81. But if the estate be of an equitable nature, and be chargeable with debts, the fund is to be deemed equitable assets, unless by some statute it is expressly made legal assets ; for it cannot be reached except through the instrumentality of a court of equity. And it is stated, as a general principle, that every thing is considered as equitable assets, which the debtor has made subject to his debts generally, and which, without his act, would not have been subject to the payment of his debts gener- ally. See 1 Story's Eq. Juris., §552; 2 Lead. Cas. Eq. 72, 81, et seq. The doctrine of equitable assets was introduced at an early period intD the jurisprudence of the United States, but its im portance has been very greatly diminished on account of its adoption and incorporation into the statute law of most of the 360 ASSETS, ADMINISTEATION OF. States. And even in those States where the doctrine has not been recognized by statute, the sphere of its practical operation has been limited, by the extension of legal remedies, to all the property of the debtor not included in the class of equitable assets. See Sperry's Estate, 1 Ashm. (Penn.) 347. It should be remembered, however, that the adoption of equi- table principles by the statute law does not weaken their force as principles, nor render them inapplicable in cases admitting of their application. Terr's Estate, 2 Rawle (Penn.), 250; 2 Lead. Cas. Eq. 88. In the absence of any statutory enactment, the rule is recognized that a charge of debts by will upon lands, or a devise in trust for the payment of debts, converts the whole fund into equitable assets, and brings it within the equitable principle of equal distribution. Backhouse v. Paiion, 5 Pet. 160 ; Black V. Scott, 2 Brock. 325 ; Cloudas^ Ea^r v. Adams, 4 Dana (Ky.), 603 ; Speed's ExW v. Nelson's Ex'r, 8 B. Monr. (Ky.) 499. See, also, as to the doctrine, Benson v. Le Boy, 4 Johns. Ch. 651 ; Moses V. Murgatroyd, 1 id. 119 ; Henderson v. Burton, 3 Ired. (N. C.) 259. § 4. Principles of distribution. The mere change of the forum in which assets are distributed, from law into equity, will not vary the character of the assets nor affect the order of their dis- tribution. In the distribution of legal assets, courts of equity follow the same rules which are adopted by courts of law, and give the same priority to the different classes of creditors, which is enjoyed at law. This is in accordance with the maxim, ^qui- tas sequitur legem. See ante, 152. Atkinson v. Gray, 18 Jur. 283 ; Moses v. Murgatroyd, 1 Johns. Ch. 119 ; Purdy v. Doyle, 1 Paige's Ch. (N. Y.) 558. Especially will priorities of liens be regarded. lb.; Anerill v. Loucks, 6 Barb. (N. Y.)470 ; PascaUs V. Canfield, 1 Edw. Ch. (N.Y.) 201; see Wilder v. Keeler, 3 Paige's Ch. (N. Y.) 167 ; Thompson v. Brown, 4 Johns. Ch. 619 ; 2 Lead. Cas. Eq. 88 (252). But, in respect to assets, which are the growth of equitable jurisdiction, and the fruit of equitable principles, the maxim that equality is equity, is applicable ; and such assets will be distrib- uted by courts of equity equally, and pari passu, among all the creditors, without any reference to the priority or dignity of the debts. lb.; Ante, 155; Beg v. Beg, 2 P. Wms. 412, 416 ; Wilsonv. Paul, 8 Sim. 63 ; Bain v. Sadler, L. R., 12 Eq. 570 ; see Codwise v. Gelston, 10 Johns. 507. If the fund is insufficient to pay all the creditors, they are required to abate in proportion. So, if lands ASSETS ADMINISTRATION OF. 351 and other property, not strictly legal assets, are charged with the payment of debts and legacies, all the legatees take jpari passu ; and in case of an insufficiency of equitable assets (after payment of the debts) to pay all the legacies, the legatees are required to abate in proportion, unless the testator has otherwise directed. Brown v. Brown, 1 Keen, 275; 1 Story's Eq. Juris., As between creditors and legatees, the former are entitled to a priority and preference; the latter taking nothing until the debts are all paid. lb.; Kidney v. CoussmaTcer, 12 Ves. 154 ; see Freeman v. Olcey, 3 Jones' Eq. (N. C.) 473 ; Elliot v. Posten, 4 id. 433 ; Sims v. Sims, 2 Stockt. Ch. (N. J.) 158 ; TerJiune v. Colton, 2 id. 21. Where the assets are partly legal and partly equitable, a court of equity will not take away the legal preference on legal assets, but if any creditor has been partly paid out of the legal assets, by insisting on his preference, and he seeks satisfaction of the residue of his debt out of the equitable assets, he will be post- poned till all the other creditors not possessing such a prefer- ence have received out of such equitable assets an equal propor- tion of their respective debts. 2 Lead. Gas. Eq 88 (252) ; Moses V. Murgatroyd, 1 Johns. Ch. 119 ; Deg v. Deg, 2 P. Wms. 416; Cornish v. Willson, 6 Gill. (Md.) 303. And see Purdy v. Doyle,, I Paige, 558 ; Wilder v. Keeler, 3 id. 165. Very generally, by statute, in the United States, and now also in England, the rule of law is that all the property of the de- ceased, real and personal, is liable for his debts ; and the follow- ing is the order of administering assets for creditors' in equity, unless a different order is prescribed by statute : 1. The per- sonal estate not specifically bequeathed ; 2. Real estate devised or ordered to be sold for the payment of debts; 3. Real estate descended but not charged with debts ; 4. Real estate devised, charged generally with the payment of debts ; 5. Gen- eral pecuniary legacies pro rata ; 6. Real estate devised, not charged with debts. See, generally, 2 Lead. Gas. Eq. 72 ; Adams V. Brackett, 5 Mete. (^lass.) 280 ; Limngston v. NewTcirJc, 3 Johns. Ch. 312; Hays v. Jackson, 6 Mass. 149; Harmy v. Steptoe, 17 Graft. (Va.) 2S9 ; Shorr v. McCameron. 11 Serg. & R. 252 ; Ward V. Ward, 15 Pick. 511 ; 1 Bouv. Diet. 155 ; Chase v. Lockerman, II Gill & J. (Md.) 185; Schermerhorn v. Barhydt, 9 Paige, 29 ; lAmngston v. Limngston, 3 Johns. Ch. 148 ; Stroud v. Barnett, 8 Dana (Ky.), 394 ; Gallagher's Appeal, 48 Penn. St. 122 ; Salis 352 ASSETS, ADMINISTRATION OF. huryv. Morss. 7 Lans. (N. Y.) 359 ; House v. Raymond, 3 Hun (N. Y.), 44 ; S.' C, 5 K Y. S. C. (T. & C.) 248. § 5. Marshaling assets. In the sense of a court of equity, the marshaling of assets is such an arrangement of the different funds under administration as shall enable all the parties having equities thereon to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction out of a portion of these funds. 1 Story's Eq. Juris., § 558. The principle upon which the court proceeds is, that a creditor having his choice of two funds ought to exercise his right of election in such a manner as not to injure other creditors, wiio can resort to only one of these funds. But if contrary to equity, he should so exercise his legal rights as to exhaust the fund to which alone other creditors can resort, then those other creditors will be placed by a court of equity in his situation, so far as he has applied their fund to the satisfaction of his claim. Alston v. Mumford, 1 Brock. 266. This principle is well settled in the jurisprudence of this country as well as in that of England (see Goss v. Lester^ 1 Wis. 43 ; Kendall v. New Eng. Co., 13 Conn. 394 ; Piatt v. St. Clair, 6 Ham. [Ohio] 233 ; Russell V. Howard, 2 McLean, 489 ; Evertson v. Booth, 19 Johns. 486) ; and it is not confined to the case of creditors, but is also applied to other persons standing in a similar predicament. Dorr V. Shaw, 4 Johns. Ch. 17 ; GlieesehorougJi v. Millard, 1 id. 412 ; OppenJieimer v. Walker, 3 Hun (N.Y.), 30; S. C, 5 IST. Y. S. C. (T. & C.) 326. It will not, however, be applied where it would work injustice to the creditor, or other party in interest, having a title to the double fund, or where it would operate unjustly to the com- mon debtor. See Averill v. Loucks, 6 Barb. 470. Nor is it applied in favor of persons who are not common creditors of the same common debtor, except upon some special equity. Ex parte Kendall, 17 Ves. 514, 520 ; Lloyd v. Galhraith, 32 Penn. St. 103. It applies, however, during the life-time of the debtor, as well as in the administration of his estate after his death {Hawley v. Mancius, 7 Johns. Ch. 174, 184 ; Dorr v. Shaw, 4 id. 17 ; 2 Lead. Cas. Eq. 71 [194] ) ; though it has been said that courts of equity have no right to marshal the assets of a person who is alive. See Lacam v. Mertins, 1 Ves. Sen. 312. A few cases will clearly illustrate the application of the gen- eral principle. Thus, if a specialty creditor, whose debt is a lien on the real estate, receive satisfaction out of the personal assets, a simple contract creditor (who has no claim except upon ASSETS, ADMINISTRATION OF. 353 those personal assets) shall in equity stand in the place of the specialty creditor against the real assets, so far as the latter shall have exhausted the personal assets in payment of his debt. Clifton V. Burt^ 1 P. Wms. 679, note ; CheeseborougJi v. Millard, 1 Johns. Ch. 409, 413. And the same principle is applicable to the case of a mortgagee who exhausts the personal estate in the paym.ent of his debts. The simple contract creditors will be allowed to stand in the place of the mortgagee, in regard to the real estate bound by the mortgage. Aldrich v. Cooper^ 8 Ves. 382 ; 2 Lead. Gas. Eq. 205, et seq. See Putnam v. Russell, 17 Vt. 54 ; Lyman v. Lyman, 32 id. 79 ; Lloyd v. GalbraltJi, 32 Penn. St. 103 ; Ooss V. Lester, 1 Wis. 43, 54 ; Oppenheimer v. Walker, 3 Hun (N. Y.), 30; S. C, 5 N. Y. S. C. (T. & C.) 325. So, the bounty of the testator entitles a legatee to marshal the assets ; and the choice of the creditors, to proceed against the personal estate, instead of the real estate descended, shall not preclude the payment of the legacy. Post v. Mackall, 3 Bland. (Md.) 486. And see Mollan v. Griffith, 3 Paige's Ch. (N. Y.) 402 ; Pice V. Harheson, 2 N. Y. S. C. (T. & C.) 4 ; Broion v. James, 1 Strobh. Eq. (S. C.) 424 ; Pohards v. Wortham, 2 Dev. Eq. (N. C.) 173; Chase v. LocTcerman, 11 Gill & J. (Md.) 186 ; 2 Lead. Gas. Eq. 215, ei seq. And marshaling is also allowed in favor of a widow's paraphernalia. See 2 Bl. Gom. 436. Thus, if the paraphernalia had been actually taken by creditors in satisfaction of their debts, the widow will be allowed to stand in their place, and the assets will be marshaled so as to give her a compensation pro tanto. Aldrich v. Cooper, 8 Yes. 897; Incledon v. Northcote, 3 Atk. 438; 2 Lead. Gas. Eq. 69. So, heirs at law and devisees are, in a variety of cases, entitled to a marshaling of assets in their favor; as, w^here an heir or devisee of real estate is sued by a bond creditor, he may, in many cases, be entitled to stand in the place of such specialty creditor against the personal estate of the deceased tes- tator or intestate. Gallon v. Hancoclc, 2 Atk. 424. And see this subject fully discussed, 2 Lead. Gas. Eq. 215, et seq. In closing this subject it may be observed, that generally in this country courts of probate have jurisdiction over the admin- istration of estates, and courts of equity do not ordinarily inter- fere, except in aid of the former. It would seem, however, that in some of the States, courts of equity have concurrent jurisdic- tion with courts of probate, over many matters connected with the settlement of estates. See Clarke v. Jolmston^ 2 Stockt. (N. Vol. L-'45 354 ASSETS, ADMINISTRATION OF. J.) 287; Seymour Y. Seymour, 4 Johns. Ch. 409. In England, when a matter of administration of an estate once comes into the courts of equity, it draws the whole administration with itj and the final settlement is made in that court. Stewart v. Stewart^ 31 Ala. 207 ; Adams v. Adams, 22 Vt. 50 ; and see Thompson V. Brown, 4 Johns. Ch. 619, 630 ; McKay v. Qrten, 3 id. 58 ; Cothert v. Daniel, 32 Ala. 329. ASSIGI^MENTS. 855 CHAPTER XV. ASSIGNMENTS. ARTICLE I. OP THE GENERAL RULES RELATING TO ASSIQlTMEin'S. Section 1. Assignments in general. By the term assignment^ as nsed in common parlance, is understood a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. 1 Bouv, Diet. 165. In a more technical and restricted sense, an assign- ment is the transfer of the interest one has in lands and tene- ments, and is usually applied to an estate for life or years. See, 1 Broom & Had. 753, Wait's ed. ; 2 Bl. Com. 326 ; 3 Woodd. Lect. 170 ; 1 Steph. Comm. 485 ; Cruise Dig., tit. XXXII (Deed), ch. vii, § 15. So, the term is employed to denote not only the act of transfer, but also the instrument by which the transfer is effected. A very extensive class of assignments are those made by debt- ors for the benefit of creditors. They are for the most part regu- lated by statute in nearly all the States of the Union, and do not, therefore, come within the scope of this work. It is merely pro- posed to give the general rules of law which regulate the transfer of rights in action, without regard to the kind of property or the purposes of the transfer. ARTICLE IL WHAT IS ASSIGNABLE. Section 1. In general. To make a grant or assignment valid at law^ the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment. Nee- dles V. Needles, 7 Ohio St. 432 ; Mitchell v. Winslow, 2 Story, 630; Thallhimer v. BrincTcerhoff, 3 Cow. (N.Y.) 623; Moody v. Wright, 13 Mete. (Mass.) 17 ; Skipper v. Stokes, 42 Ala. 255. But courts of equity will support an assignment not only of interests in action and contingency, but of things which have no present actual or potential existence, but rest in mere possibility only {Calkins v. 356 ASSIGNMENTS. LocJcwood, 17 Conn. 154 ; Stover v. Eycle^himer^ 4 Al b. Ct. App. [N. Y.] 309 ; 3 Keyes, 620), provided the agreement is fairly entered into, and it would not be against public policy to uphold it. Field v. Mayor, etc., of New YorJt, 6 N. Y. (2 Seld.) 179. Thus, it is held that the assignment of the head-matter and whale-oil to be caught in a whaling voj^age now in progress will be valid in equit}^, and will attach to the head-matter and oil when obtained. Mitchell v. Winslow, 2 Story, 630. And see Taylor v. Palmer, 31 Cal. 240 ; Tyler v. Barroios, 6 Robt. (N. Y.) 104 ; Groot v. Story, 41 Yt. 533 ; St. Louis v. Clemens, 42 McK 69 ; Lansden v. McCarthy, 45 id. 106. The assignment of a chose in action was prohibited at common law. Thallhimer v. Brinclcerhoff, 3 Cow. 623 ; Coolidge v. Rug- gles, 15 Mass. 387. The only exception to the rule being in favor of the King. United States v. Buford, 3 Pet. (U. S.) 30. This rule, though still having a nominal existence, serves no other purpose than to merely give form to some legal proceed- ings, while in equity it is totally disregarded. Thallhimer y. BrincTcerhoff, 3 Cow. 623. And the doctrine of equitable assign- ments has been gradually extending to meet the convenience of trade and business, and has been favorably viewed in the courts of law, subject, however, to the legal principle, that in such cases the assignee can enforce his claim only in the name of the assignor, unless there be an express promise by the debtor to pay the assignee. Under this limitation choses in action generally may be the subject of an assignment ; and the debts which are con- tingent, and money yet to become due, may well be assigned, these circumstances only operating to postpone the liability of the debtor until the contingency happens and the money becomes payable. Gibson v. CooJce, 20 Pick. (Mass.) 17. And see Has- kell V. Hilton, 30 Me. 419 ; Dix v. Cohh, 4 Mass. 511; Welch v. Mandemlle, 1 Wheat. (U. S.) 236 ; Smilie v. Stevens, 41 Yt. 321. § 2. Lands, and interests in lands. Every estate and interest in lands and tenements, and also every present and certain estate or interest in incorporeal hereditaments may be assigned. Coke Litt. 46 h. Thus, the interests of a purchaser {Ensign v. Kel- logg, 4 Pick. [Mass.] 1 ; HalbertY. Deering, 4 Litt. [Ky.] 9; Brown V. Chambers, 12 Ala. 697) ; mortgagor {Blgelow, 1 Pick. 485) ; lessor {Willard v. Tillman, 2 Hill [N. Y.],' 274 ; see Tliacker v. Henderson, 63 Barb. 271 ; Demarest v. Willard, 8 Cow. 206); mortgagee, lessee and tenant for life, are assignable (see Ghraham ?. Newman, 21 Ala. 497 ; Outcalt v. Van Winkle, 1 Gre^en's Ch- ASSIGNMENTS. 357 fK J.] 513); so are the profits of lands. See Cochran v. Paris, 11 Gratt. (Va.) 348 ; BoUnson v. Mauldin, 11 Ala. 977. In Georgia, it is held that an estate at will growing out of the statute of frauds is assignable ; though, if created hj the act of the parties under the common law, it is not. Cody v. Quarter- maUy 12 Ga. 386. Rent yet to grow due is assignable. Demar- est V. Willard, 8 Cow. 206. So, where a preference to enter lands has been acquired by occupancy and possession, the right of entry or occupancy is assignable {Smith v. Mankin, 4 Yerg. [Tenn.] 1) ; as is also a right of entry where the breach of the condition ipso facto terminates the estate. Ensign v. Kellogg, 4 Pick. 1 ; Gwynn v. Jones, 2 GiU & J. (Md.) 173; Warner v. Bennet, 31 Conn. 468. The right to cut trees, which have been sold on the grantor's land {McCoy v. Herbert, 9 Leigh H'^a.] 548; Olmstead v. Niles, 7 N. H. 522), and the right to betterments are likewise assignable. Lombard v. Ruggles, 9 Me. 62. Warrants and survey's of land may be assigned in Virginia, but entries merely cannot {Morrison v. Campbell, 2 Rand. 206), though it is otherwise in Kentucky. Hart v. Benton, 3 Bibb, 420 ; id. 534. A widow ma}'- assign her interest in her deceased husband's estate, and such assignment is sufficient, in equity, to pass such interest to the assignees. Powell v. Powell, 10 Ala. 900 ; see Johnson v. Shields, 32 Me. 424. A pre-emption right has been held not assignable ( Whitney v. Buckman, 13 Cal. 536) ; but the general grant of a mining privi- lege in land passes an estate to the grantee, which he may assign. McBee v. Loftis, 1 Strobh. Eq. (S. C.) 90 ; see Hoy v. Smith, 49 Barb. 360 ; Gaston v. Plum, 14 Conn. 344. The assignment of a contract to convey an interest in real estate, upon the performance of certain conditions, vests an equitable interest therein in the assignee, which will be protected and made available by courts of law. Dyer v. BurnJiam, 25 Me. 9 ; and see Br ay ton v. Garvin, 5 Wis. 117. The interest which a son has as heir of his father's estate, the father being alive, may be the subject of sale, and a court of equity will recognize the validity of such sale and enforce it, when the vendor's right attaches, as an assignment of the property, if it appears that the transaction was fair, and for a valuable con- sideration. Fitzgerald v. Vestal, 4 Sneed (Tenn.), 258. And see Nimmo V. Davis, 7 Tex. 26. § 3. Contracts. A contract is held to be assignable only when the entire interest therein can pass by the assignment, both legal 368 ASSIGNMENTS. and equitable. White v. BucJc, 7 B. Monr. (Ky.) 546. A contract to plant a certain area of land, and sell all tlie crop raised, is held assignable by the buyer, without the assent of the seller. Sears V. Conover, 4 Abb. Ct. App. (N. Y.) 179 ; 3 Keyes, 113 ; 33 How. 324. So, among assignable contracts or agreements are the fol- lowing : A contract by one person to serve another for a certain length of time. IP Kee v. Hoover, 1 T. B. Monr. (Ky.) 32; see Davenport v. Gentry, 9 B. Monr. (Ky.) 427 ; Hayes v. Willio, 4 Daly (N. Y.), 259. An agreement for the delivery of property. Lafferty v. Rutlierford, 5 Ark. 649 ; Tyler v. Barrows, 6 Rob. (N. Y.) 104. Or to pay a certain sum of money to a defendant, if he will withdraw his defense. Gray v. Garrison, 9 Cal. 325. Or to perform work upon a street. Taylor v. Palmer, 31 id. 240. Or not to run boats on a certain line of travel. Steam Navigation Co. v. Wriglit, 6 id. 258. A contract for grading, curbing, and macadamizing a street. St. Louis v. Clemens, 42 Mo. 69. A contract for the labor of convicts. Horner v. Wood, 23 N. Y. (9 Smith) 350. A contract on which personal representa- tives can sue. Sears v. Conover, 34 Barb. 330 ; 4 Abb. Ct. App. 179 ; 3 Keyes, 113 ; 33 How. 324. A written promise of indemnity, whether under seal or not. Fletcher v. Piatt, 7 Blackf. (Ind.) 522. A part interest in a written contract. Groves v. Ruby, 24 Ind. 418. The balance due upon a mutual account. Bartlett\. Pearson, 29 Me. 9. A claim for breach of contract. Monahan v. Story, 2 E. D. Smith (N. Y.), 393. Or, a policy of insurance, in equity, and every set-off between insurer and insured, prior to the assignment, is good against the assignee. Spring v. South Carolina Ins. Co., 8 Wheat. (U. S.) 268 ; Guordon v. North America Ins. Co. , 3 Yeates (Penn.), 327; Carroll v. Boston Mar. Ins. Co., 8 Mass. 515; see Jones y. Alley, 17 Minn. 292. An assignment of wages to be earned, made in good faith and for a valuable consideration, is valid. And it is held to be immaterial that the work is being done without any special contract as to time ; an understanding that the employee should continue in the service of the employer as previously, is sufficient. Augur v. JSTew YorTc Belting and Paclcing Co., 39 Conn. 536 ; and see Garland v. Harrington, 51 N. H. 409; Sharp v. Edgar, 3 Sandf. (N. Y.) 379; Emery v. Lawrence, 8 Cush. (Mass.) 151 ; Leahy v. Bugdale, 27 Mo. 437. The moment a man has acquired an exclusive interest in any thing, though it shall be but a contingent and executory interest, he may dispose of it, if not forbidden by law. Graham v. Henry, 17 Tex. 164. But the assignment of a mere expectation of earn- ASSIGNMENTS. 359 ing money, if there is no contract on which to found the expecta- tion, is of no effect. See Mulhall v. Quinn, 1 Gray, 105. Though such an assignment may be made valid by a ratification of it, after the money has been earned. Farnsworth v. Jackson., 32 Me. 419. An assignment of an alien author' s right to the first printing and publication of a manuscript within the United States is valid, and the right is within the cognizance of a court of equity. Palmer v. Be WUt,4n N. Y. (2 Sick.) 532 ; S. C, 7 Am. Rep. 480; see ShooTc v. Daly, 49 How. (N. Y.) 366. § 4. Money due^ or to become due. A creditor may assign his debt to a third person, and give him the benefit of any pledge which he holds to secure the payment of such debt. Ghayman V. BrooJcs, 31 N. Y. (4 Tiff.) 75. So, an unliquidated balance of an account is a proper subject of assignment. Wescott v. Pot- ter, 40 Vt. 271 ; Crocker v. Whitney, 10 Mass. 316. And the same is true of a debt for goods sold, etc., of which the evidence rests on an account. Coolc, Woodbridge v. PerJcins, 3 Day (Conn.), 364; Dix v. Coih, 4 Mass. 511 ; Norris v. Douglass, 5 N. J. L. (2 South.) 817 ; or of a debt evidenced by a note. Long v. Con- stant, 19 Mo. 320. The claim of a sheriff, for services which have been rendered, and expenses which have been incurred in the execution of pro- cess, is assignable. BirkhecTc v. Stafford, 23 How. (N. Y.) 236 ; S. C, 14 Abb. 285. And a city oflScer who is chosen for a year, subject to be removed from ofiice at any time, at the will of the mayor and aldermen, and whose salary is payable quarterly, may legally make an assignment of a quarter' s salary before the quarter expires. BracJcett v. Blake, 7 Mete. (Mass.) 335 ; and see State Bank v. Hastings, 15 AVis. 75 ; Thayer v. Kelley^ 28 Vt. 20. So costs due the clerk of a court are assignable in equity. ajples V. Blair, Rice's Ch. (S. C.) 60 ; and a turnpike company may, in equity, assign the money due them for subscriptions. Miller v. Malony, 3 B. Monr. (Ky.) 105. A judgment and execution may be assigned so as to vest an equitable interest in the assignee, which the law will protect. Brown v. Maine Bank, 11 Mass. 153 ; Pearson v. Talbot, 4 Litt. (Ky.) 435 ; Brahan v. Ragland, 3 Stew. (Ala.) 247 ; Vanhouten V. Reily, 14 Miss. (6 Smed. & M.) 440 ; see Tutt v. Couzins, 50 Mo. 152. §5. Causes of action. We have already seen {ante, 356, § 1,) that by the common law mere choses in action are not assign- 880 ASSIGNMENTS. able. But this is a formal difficulty only, for the assignment of a chose in action is valid in equity, and courts of law will take notice of equitable assignments to protect them, and will allow the assignee to maintain an action thereon in the name of the assignor. See ante^ art 2, § 1, and cases there cited. The assignor, by the assignment, gives authority to the assignee to use his name in any legal proceedings which may become necessary to give full effect to the assignment. The assignor becomes the trustee of the assignee. Eastman v. Wright^ 6 Pick. (Mass.) 316. See, also, Wheeler v. Wheeler^ 9 Cow. (N. Y.) 84 ; Welch v. Mandemlle, 1 Wheat. (U. S.) 236. Chose in action, taken in its broadest latitude, comprehends not onl}^ a demand arising on contract, but also a wrong or injury done to property or person. See Gillet V. Fair child, 4 Denio (N. Y.), 80 ; People v. Tioga C. P., 19 Wend. 75. But for the purposes of any sort of assignment, legal or equitable, the term is generally restricted to a claim due either on contract, or to a claim that some special damage has arisen to the estate of the assignor. Id. And see McKee v. Juddy 12 N. Y. (2 Kern.) 625 ; Dams v. Herndon, 39 Miss. 484 ; Jordon V. Gillen, 44 N. H. 424. A right of action for the conversion of personal property has been held assignable. McKee v. Judd, 12 N. Y. (2 Kern.) 625 ; Lazard v. Wheeler, 22 Cal. 139 ; Webber v. Davis, 44 Me. 147 ; HawTcv. T7iorn, 54 Barb. (N. Y.) 164 ; but see DunMin v. WilJcins, 5 Ala. 199 ; Davis v. Herndon, 39 Miss. 484. So a claim for money obtained by fraudulent representations is assignable. Byxbie v. Wood, 24 N. Y. (10 Smith) 607 ; Allen v. Brown, 51 Barb. (N. Y.) 86 ; Stewart Y. Balder son, 10 Kans. 131 ; as is likewise a cause of action for the recovery of damages upon an undertaking on arrest. Moses v. Waterbury Button Co., 37 N. Y. Superior Ct. 393. A right of action against a common carrier for negligence in not delivering goods ; Smith v. N. T. & New Haven R. M. Co., 28 Barb. (N. Y.) 605 ; or for the loss of goods ; Freeman v. New- ton, 3 E. D. Smith (N. Y.) 246 ; or to recover the value of prop- erty intrusted to him, may be assigned ; Merrill v. Grinnell, 30 N. Y. (3 Tiff.) 594 ; and the right of action, which a carrier has for an injury to the goods of a third person, injured while in ]iis possession, is assignable; Merriclcv. Brainard, 8 Barb. (N. Y.) 574. The lien of a material-man or mechanic is assign- able : Tnttle v. Howe, 14 Minn. 145 ; and a cause of action to enforce a mortgage survives to the personal representatives, and \b, therefore, assignable ; Marvin v. Inglis, 39 How. (N. Y.) 329 ; ASSIGNMENTS. 361 and see Waldron v. Wlllard, 17 N. Y. (3 Smitli) 466 ; ZahrisTcie V. Smith, 13 N. Y. (3 Kern.) 322 ; Freeman v. Newton, 3 E. D. Smith (N. Y.), 130. The assignment of part of a note, which is being at the time sued upon, is valid, and will not be vitiated by a subsequent as- signment of the rest of the note to other parties. Gardner v. SmitJi, 1 Heisk. (Tenn.) 256. ARTICLE III. WHAT IS NOT ASSIGNABLE. Section 1. In general. In general, mere personal torts, which die with the party, and do not survive to his personal represen- tatives, are incapable of passing by assignment. Comegys v. Vasse, 1 Pet. (U.'S.) 193; Grant y. Ludlow, 8 Ohio St. 1; Lin- ton V. Hurley, 104 Mass. 353 ; Norton v. Tuttle, 60 111. 130 ; Mc- Glinchy v. Hall, 58 Me. 152. And assignments that are illegal or against public policy will not be sustained at law or in equity. Thus, an assignment by a judge of his salary. Flarty v. Odium, 3 Term. E,. 681 ; see State Bank v. Hastings, 15 Wis. 78 ; or an assignment by an officer in the army or navy of his pay, or of his commission. Id. ; Wells v. Foster, 8 M. & W. 149 ; Colly er V. Fallon, 1 Turn. & Russ. 459, will not be supported. And an assignment of the future earning or salaries of an officer or em- ployee of the United States government, in consideration of pay- ment in advance, is void not only as against public policy, Bliss V. Lawrence, 68 N. Y. (13 Sick.) 442 ; S. C, 48 How. (K Y.) 21 ; but also as in direct contravention of act of Congress. Billings V. O'Brien, 45 How. (N. Y.) 392; S. C, 14 Abb. (N. S.) 238;' 4 Daly, 556. So, the assignment of claims against the United States in certain cases is prohibited by statute. Danldessen v. Braynard, 3 Daly (N. Y.), 183 ; BecJcer v. Sweetser, 15 Minn. 427. And the bare right to file a bill in equity growing out of the perpetration of a fraud on a party is not assignable, being contrary to public policy and savoring of the character of main- tenance. The assignor must have a substantial right, and not a mere naked right to overset a legal instrument or to maintain a suit. Norton V. Tuttle, 60 111. 130; Morrisonv. Deaderick, 10 Humph. (Tenn.) 342 ; Milwaukee, etc., R. R. Co. v. Milwaukee, etc., R. R. Co., 20 Wis. 174 ; Prosser v. Edmonds, 1 Younge & Coll. 418 ; Marshall v. Means, 12 Gra. 61. Vol. L— 46 362 ASSIGNMENTS. It is held that contracts for the performance of personal duties or services are not assignable by the employer. Hays v. Willio, 4 Daly (N. Y.), 259 ; Davenport v. Gentry, 9 B. Monr. (Ky.) 427. So, where a contract is founded in personal trust and confidence, the assignee thereof cannot recover upon it without the consent of the party contracting with his assignor, to the assignment. Lansden v. Mc Cartliy, 45 Mo. 106 ; Fairgriems v. Lehigh Co., 2 Phil. (Penn.) 182. But see Grootv. Story, 41 Yt. 533; Tay- lor V. Palmer, 31 Cal. 24(). And it is held, that a note or bond, payable wholly or partly in personal services, is not assignable. Henry v. Hughes, 1 J. J. Marsh. (Ky.) 454 ; Bothick v. Purdy, 3 Mo. 82 ; Ransom v. Jones, 2 111. (1 Scam.) 291. So, in case of a deed, conditioned for the support of a person in old age, the interest of neither party is assignable without the consent of the other. Bethlehem v. Annis, 40 N. H. 34. A parol license to be exercised on the land of another is a mere personal trust and confidence, and is not assignable. Cowles V. Kidder, 24 N. H. (4 Post.) 364 ; Mendenhall v. Klinck, 51 N. Y. (6 Sick.) 246 ; nor is a license to keep a grocery, assignable. Lewis V. United States, 1 Morr. (Iowa) 199 ; Munsell v. Temple, 8 111. (3 Gilm.) 92. But it is held that a permit to cut logs from the State lands may be assigned as security for supplies already advanced, or to be furnished at a subsequent time. Mason v. Sprague, 47 Me. 18. ARTICLE lY. FORM AND MODE OF ASSIGNING. Section 1. In general. It was held formerly that the instru- ment of transfer must be of as high a nature as the instrument transferred ; for instance, that an assignment of an instrument under seal must be by deed. Wood v. Partridge, 11 Mass. 488. But this rule is no longer observed in all its strictness, if at all, and there may now be a valid assignment of a contract by a mere transfer of the evidence of the contract. Dunn v. Snell^ 15 Mass. 481 ; Prescott v. Hull, 17 Johns. 284-; Porter v. Bui- lard, 26 Me. 448 ; Gotten v. Williams, 1 Fla. 37 ; Sexton v. Fleets 2 Hilt. (N. Y.) 477 ; Doremus v. Williams, 4 Hun (N. Y.), 458. But in order to constitute an assignment, either in law or equity there must be such an actual or constructive appropriation of the subject-matter assigned, as to confer a complete and present ASSIGNMENTS. 363 right on the assignee ; and this, even where the circumstances do not admit of its immediate exercise. Id.; Ford v. Garner, 15 Ind. 298. And a mere promise, though of the clearest and most solemn kind, to pay a debt out of a particular fund is not an assignment of the fund even in equity. Id. ; Christmas v. Rus- sell. 14 Wall. (U. S.) 69. But an order drawn u^Don a particular fund, or for the payment of particular money in the hands of the drawee, not otherwise appropriated, followed by notice of such order, to the drawee, is an equitable assignment of the money of the drawer in the hands of the drawee, to the amount of such order. Lewis v. Berry, 64 Barb. (N. Y.) 593 ; Conway V. Cutting, 51 N. H. 407. See Noe v Cliristie, 51 N. Y. (6 Sick.) 270; Rodickv. Gandell, 1 De G., Isi. & G.763 ; S. C, 15 Eng. Law «& Eq. 22. See Risley v. Smith, 39 N. Y. S. C. 137 ; Alger v. Scott, 54 N. Y. (9 Sick.) 14. An assignment of a mortgage by an individual or by a corpo- ration, without seal, is a valid transfer of the mortgage debt. Runyan v. Mersereau, 11 Johns. 634; OilletiY. Camphell, iDenio (N. Y.), 520. But see Prescott v. ElUngwood, 23 Me. 345. So a judgment may be assigned by parol, or writing without seal {Ford v. Stuart, 19 Johns. [N. Y.] 342 ; Becton v. Ferguson, 22 Ala. 599) ; and the same is true of an obligation or covenant, Morange v. Edwards, 1 E. D. Smith (N. Y.), 414 ; Howell v. Bulkley, 1 Nott & M. (S. C.) 250 ; Dawson v. Coles, 16 Johns. (N. Y.) 51. See Arnold v. Barrow, 2 Patt. & H. (Ya.) 1. The delivery of a note, bill, or execution, with intent to transfer the debt on a fair bargain upon valuable consideration, is, in general, a sufficient assignment of the note, bill, or judgment {Clark v. Rogers, 2 Me. 147 ; Jones v. Whitter, 13 Mass. 304 ; Tutt v. Cou- sins, 50 Mo. 152 ; Rollison v. Hope, 18 Tex. 446) ; and so of other choses in action. Onion v. Paul, 1 Harr. & J, (Md.) 114; Noyes V. Brown, 33 Vt. 431 ; Porter v. Bullard, 26 Me. 448 ; Garnsey V. Gardner, 49 id. 167 ; Grover v. Groi^er, 24 Pick. (Mass.) 261 : Briggs v. Dorr, 19 Johns. (N. Y.) 95 ; Robinson v. Williams, 3 Head (Tenn.), 540. And a contract in writing to convey land {Currier v. Howard, 14 Gray [Mass.], 511), or a book debt, may be assigned verbally. Spafford v. Page, 15 Yt. 490. No particular form is necessary in equity to constitute an assignment, and courts of equity give effect to assignments in many cases where they would not be sustained at common law. See Clemson v. Davidson, 5 Binn. (Penn.) 392 ; Morton v. Naylor^ 1 Hill (N. Y.), 583 ; Hoppiss v. Eskridge, 2 lied. Eq. (N. C.) 54. 364 ASSIGNMENTS. Under tlie New York Code of Procedure, an assignment, valid as an equitable assignment, is equally valid at law. Hooker v. Eagle Ba7i7c, 30 N. Y. (3 Tiff.) 83. ARTICLE V. VALIDITY OF ASSIGNMENT AS TO ASSIGITOE'S CRBDITOES. Section 1. In general. Iq order that an assignment of a chose in action may be valid as against the creditors of the assignor, it must be bona fide^ and upon adequate consideration ; and a mere formal transfer is in sufficient for the purpose. Giddings v. Coleman^ 12 N. H. 153 ; Langley v. Berry ^ 14 id. 82. See Lons- dale's Estate, 29 Penn. St. 407 ; Jones v. Drake, 6 Phil. (Penn.) 416; CunninghamY. Freehorn, 11 Wend. (N.Y.) 241 ; D' WoI/y. Pratt, 42 111. 198. ARTICLE YI. RIGHTS OF ASSIGNEE. Section 1. In general. An assignment of a chose in action does not pass to the assignee a legal right to the security or debt, but merely vests in him an equitable interest, which the courts of law will protect. Garland v. Richeson, 4 Rand. (Va.) 266 ; Day v. Whitney, 1 Pick. (Mass.) 504 ; 8loan v. 8u7n- mers, 14 N. J. L. (2 Green) 510; Upton v. Wallace, 44 Vt 522. After the assignment, the assignor will not be permit- ted to defeat the rights of tlie assignee, whether the assignment be good at law or only in equity. Kimball v. Huntington, 10 Wend. (N. Y.) 675; Chapman y. Haley, 43 N. H. 300 \ Blin v. Pierce, 20 Vt. 25. The rule under this head is briefly stated to be, that the assignee acquires the rights, neither more nor less, of the assignor, and stands in his exact position. The assignor can transfer no better right than that of which he is possessed. Gray v. Thomas, 18 La. Ann. 412 ; Jack v. Davis, 29 Ga. 219 ; Smith V. Rogers, 14 Ind. 224 ; Wilson v. Bowden, 26 Ark. 151 ; Bush V. Laihrop, 22 N. Y. (8 Smith) 535 ; Ely v. McNight, 30 How. (N. Y.) 97; 8hotioell v. Weeb, 23 Miss. 375. An assignee of a demand is the proprietor of, and may release it. Dade v. Herbert, 1 Cranch (C. C.), 85 ; Pate v. Gray, Hempst. 155 ; but a release . by an assignor of his assignee' s claim, is a nullity. Parker v. Kelley, 18 Miss. 184. ASSIGNMENTS. 365 By the assignment of a riglit all its accessories pass with it Thus, an assignment of a debt carries with it by implication, and as an incident to the principal subject, any collateral secu- rit}^ which the creditor may hold for the enforcement of it. Hurt V. Wilson, 38 Cal. 263 ; Raintan v. Harding, 3 Phil. (Penn.) 449 ; Waller V.Tate, 4 B. Monr. (Ky.) 529; OatJicarfs Appeal, 13 Penn. St. 416; Lindsey v. Bates, 42 Miss. 397. And the apsign- ment of a judgment for a debt carries the debt, and if the debt be secured by mortgage, it carries also the mortgage interest. lb.; Bolen V. Croshy, 49 N. Y. (4 Sick.) 183. So, if the assignment be of only part of the judgment, a proportionate interest in the mortgage passes. Pattison v. Hull, 9 Cow. (N. Y.) 747. A transfer or assignment of a promissory note secured by mortgage carries with it all the rights of the mortgage, and the privileges given to secure it. Perot v. Lenasseur, 21 La. Ann. 529. And when a note secured by a lien is assigned, the lien is also as- signed. Forwood V. BeJioney, 5 Bush (Ky.), 174 ; Guy v. Bui? ler, 6 id. 508 ; Perry v. Roberts, 30 Ind. 244. So, an assignment of a bond, which is secured by a collateral mortgage or deed of trust, passes the collateral. Miller v. Hoyle, 6 Ired. Eq. (N. C.) 269. And upon the assignment of a bond and mortgage, a guar anty of collection, given by a previous assignor, passes as inci- dent to the debt, although not, in terms, transferred with the principal obligations. Craig v. Parkis, 40 N. Y. (1 Hand) 181 ; and see Smith v. Starr, 6 N. Y. S. C. (T. & C.) 387 ; S. C, 4 Hun, 123. An assignment of goods at sea and their proceeds is suffi- cient to pass a legal title to the proceeds. Hodges v. Harris, 6 Pick. (Mass.) 359 ; Arnold v. Elioell, 13 Me. 261. And an assign- ment of a claim on a steamboat, for supplies furnished, carries with it the statutory lien on the boat. StrotJier v. Hamburg, 11 Iowa, 59. In general, an assignment of a particular claim passes to the assignee all remedies and liabilities which the assignor had to secure and recover it, though they are not specifically mentioned in the assignment. MeJiaffy v. Share, 2 Penn. 361. The assignment of a judgment and execution passes all inter- est in the further enforcement of the judgment, but not in the money which the sheriff has previously collected on it. Robin- son V. Towns, 30 Ga. 818. Nor does the assignment of a bond for a deed of lands invest the assignee with the right to rents, which have already accrued, without something showing that it was intended to transfer them ( Van Driel v. Rosierz, 26 Iowa, 675) ; though it is otherwise as to the rents accruing after the 366 ASSIGNMENTS. assignment. lb. Costs, being only an incident of a verdict, will not pass by an assignment which does not pass the verdict. Law- rence V. Martin, 22 Cal. 173. ARTICLE VII. LIABILITIES OF ASSIGNEE. Section 1. In general. It is the general and well-established rule, that an assignee of a demand or right in action, negotiable instruments only excepted, holds subject to all equities, burdens and offsets which existed at the time of the assignment, against the assignor. Faull v. Tinsman, 36 Penn. St. 108 ; Walker v. Johnson, 13 Ark. 522 ; Timms v. Shannon, 19 Md. 296 ; State Mutual Fire Ins. Co. v. Roberts, 31 Penn. St. 438 ; Conoon v. Van Mater, 15 N. J. L. (3 Green) 481 ; Blydenhurg v. Thayer, 1 Abb. Ct. App. (N. Y.) 156; Martin v. Richardson, ^^ N. C. 255 ; Parrish v. BrooTcs, 4 Brewst. (Penn.) 154. And the rule has been held applicable to the assignment of a bond {Scott v. Shreeve, 12 Wheat. 605), a mortgage {Ingraliam v. Dishoroitgh, 47 N. Y. [2 Sick.] 421 ; JEitel v. Bracken, 38 Super. Ct. FN. Y.] 7), and a judgment {Jordan v. Black, 2 Murph. [N. C] 30 ; Colquit v. Bonner, 2 Ga. 155). So it applies to the title of an assignee from an assignee ; he takes subject to the equities between the original assignor, and the first assignee. Cutis v. Guild, 57 N. Y. (12 Sick.) 229 ; Metzgar v. Metzgar, 1 Rawle (Penn.), 227 ; Clute V. RoMnson, 2 Johns. (N. Y.) 595 ; see Downey v. TJiarp, 63 Penn. St. 822. ARTICLE YIII. RIGHTS OF ASSIGNOR. Section 1. In general. A party, equitably entitled to a chose in action, may sue for it in the name of the assignor when neces- sary, and the court will protect him against any acts of the nom- inal plaintiff designed to defeat the suit. But the assignor ia entitled to an indemnity against the costs of a suit thus brought Farnsworth v. Sweet, 5 N. H. 267; Anderson v. Miller, 7 Smedes & M. (Miss.) 586; Gordon v. Drury, 20 N. H. 353. ASSIGNMENTS. 367 ARTICLE IX. LIABILITY OF ASSIGNOR. Section 1. In general. An assignee cannot hold the assignoi liable, on account of an offset set up against the assigned demand, unless he has given the assignor notice of such offset. Drayton V. Thompson, 1 Bay (S. C), 265. And the doctrine that the ven- dor of chattels in possession impliedly warrants the title, extends to choses in action. Swanzey v. Parker, 50 Penn. St. 450 ; Led^ wich V McKim, 68 N. Y. (8 Sick.) 307 ; Oiffert v. West, 33 Wis. 617. Every obligee or holder of an obligation who assigns it to another, especially if he does so for a valuable consideration, impliedly at least, thereby engages that it is genuine and binding upon the obligor, unless he discloses fully and truly to the assignee, in treating for the assignment, all the facts and circum- stances connected with the execution and delivery of the obliga- tion. After being thus advised, the assignee agrees to take it at his own risk. Stroh v. Hess, 1 W. & S. (Penn.) 153. If the as- signee of a bond cannot recover it from the obligor by reason of the consideration of it having failed before the assignment of it was made, he may recover back from the assignor the money he paid for the assignment, whether he holds his guaranty or not ; and the assignee's right of action accrues immediately. Flynn v. Allen, 57 Penn. St. 482 ; Stewart v. West, 14 id. 336. So upon the sale of a note and mortgage, the maker of which is known by both parties to be insolvent, if the vendor represents the mortgage to be good as an inducement to the vendee to buy, and the latter buys relying upon such representation, but the mort- gagor has in fact no title to the mortgaged premises, the vendor is liable to the purchaser for the consideration paid. HaTin v. Doolittle, 18 Wis. 196. The vendor of a bill of exchange or promissory note, whether the transfer be by indorsement or delivery, impliedly warrants that it is genuine and not a foi'gery, and that it is of the kind and description it purports to be. Murray v. JudaTi, 6 Cow. (N. Y.) 484 ; Merriam v. Wolcott, 3 Allen (Mass.), 258 ; Bell v. Cafferiy, 21 Ind. 411 ; Thoinpson v. McCullough, 31 Mo. 224. And the vendor, though no party to the bill, is responsible for its genuineness {Thrall v. Newell, 19 V^. 202 ; Ourney v. Worm- ersley, 28 Eng. L. & Eq. 256) ; and if the name of the party ia 368 ASSIGNMENTS. forged and the bill becomes valueless, lie is liable to the vendee as upon a failure of consideration. Id. '^qq Baxter v. Duren^ 29 Me. 434. If an indorsement turns out to be forged, tlie seller will be held liable to the vendee for what he has received from him with interest from the receipt thereof. Aldricli v. Jackson, 5 R. I. 218. See a full discussion of this subject under head of Bills and Notes. ARTICLE X. ACTION AT LAW BY ASSIGNEE. Section 1. In general. In England, any instrument or claim, though not negotiable, may be assigned to the king, who can sue on it in his own name. Master v. Miller, 4 T. R. 320, 340 ; Tliall- Tiimer v. Brinckerhoff, 3 Cow. (N. Y.) 623. And no valid objec- tion is perceived against giving the same effect to an assignment to the government in this country. United States v. Buford^ 3 Pet. (U. S.) 13, 30. But the general common-law rule applicable to a chose in action not negotiable is, that if assigned, an action at law thereon must be brought in the name of the assignor, except where the defendant has expressly promised the assignee to respond to him {Skinner v. Somes, 14 Mass. 107 ; Jessel v. WilUanishurgh Ins. Co., 3 Hill [N. Y.J, 88 ; Innes v. Dunlop, 8 T. R. 595) ; and every thing which might have been shown in defense against the assignor may be used against the assignee. Wood v. Perry, 1 Barb. (N. Y.) 114; Bartlett v. Pearson, 29 Me. 9, and see cases cited ante, 366, art. 7. In many of the States of the Union choses in action have been made legally assignable by statute, thereby enabling an assignee, like the indorsee of a negotiable security, to enforce the demand in his own name. See Hooker v. Eagle Bank, 30 N. Y. (3 Tiff.) 83 ; Dor emus v. Williams, 4 Hun (N. Y.), 458 ; Dohyns v. McOovern, 15 Mo. 662 ; Carpenter v. Johnson, 1 Nev. 331 ; Mills v. Murry, 1 Neb. 327 ; Allen v. Miller, 11 Ohio, 374 ; McDonald v. Kneeland, 5 Minn. 352 ; Andrews v. Rue, 34 N. J. L. 402 ; Russell v. Petree, 10 B. Monr. (Ky.) 184 ; Fletcher v. Pmi(^^, 7 Blackf. (Ind.) 522 ; White v. Tucker, 9 Iowa, 100 ; Stewart v. Balder ston, 10 Kans. 131 ; Long v. Heinrich, 46 Mo. 603. But the power thus given to sue in the assignee's name does not affect the rights of the parties. The equities in defense are not excluded. Myers v. Dams, 22 N. Y. (8 Smith) 489. The statute merely enables an assignee to maintain an action in his own name, in those cases in which the right was previously ASSIGNMENTS. 3» assignable at law or in equity. See Purple v. Hudson, etc., 4 Duer (N. Y.), 74; McMahon v. Allen, 34 Barb. (N. Y.) 56 ; S. C, 12 Abb. 275. The nature of an assignment itself is not altered. Cox V. Sprigg, 6 Md. 274. In the absence of a statute regulating assignments, where one in good faith and for a valuable consideration has assigned all his interest in a chose in action, the assignee may use the name of the assignor in a suit to enforce his right whenever that is necessary. And the assignor cannot control the suit, and his ad- missions made subsequent to the assignment and after notice will not be received to defeat it. Halloran v. WMtcomh, 43 Vt. 306. See Smepson v. Harvey, 69 N. C. 387. But the rule that the bona fide assignee of a cnose in action will be protected against the release of the nominal plaintiflT, executed after notice to the defendant, is held not to apply where the assignee has by fraudulent assertions and devices concealed the true relations of the parties. Atkinson v. Runnells, 60 Me. 440 ; Randall v. Hovmrd, 2 Black, 285. ARTICLE XI. ACTIOI>r IN EQIHTT BY ASSIGNEE. Section 1. In general. As a general rule, a court of equity will not entertain a suit brought by the assignee of a debt, or a chose in action, which is a mere legal demand ; but will leave him to his remedy at law, by an action in the name of the as- signor. If, however, special circumstances render it necessary for the assignee to come into a court of equity, for relief, to pre- vent a failure of justice, he will be allowed to bring suit in his own name upon a mere legal demand. Tiernan v. Jackson, 5 Pet. 598; Townsend v. Carpenter, 11 Ohio, 21 ; Ontario Bank V. Mumford, 2 Barb. Ch. (N. Y.) 596 ; Taylor v. Reese, 44 Miss. 89. In most cases, bona fide assignments will be upheld in courts of equity, but champerty and maintenance, and the purchase of lawsuits, are inquired into and restrained in equity as at law, and fraud will defeat an assignment. See Anderson v. Van Alen, 12 Johns. 342; Edwards v. Parkhurst, 21 Yt. 472; Schaferman V. O'Brien, 28 Md. 565 ; Fetrow v. MerriwetTier, 53 111. 275 ; Rowe V. Beckett, 30 Ind. 154 ; Martin v. Veeder, 20 Wis. 466 ; Martin V. Clarke, 8 R. I. 389. The assent of the debtor is not necessary in equity to give validity to the assignment. Spring v. South Carolina Ins. Co,, Vol. I.— 47 370 ASSIGNMENTS. 8 Wheat. 268, but lie should at once have notice of the assign* ment, in order to save the rights of the assignee, in case of a bona fide payment to the assignor, or subsequent assignee, with- out notice. Jones v. Witter, 13 Mass. 304 ; Ward v. Morrison^ 25 Yi. 593 ; see Hamilton v. Maries, 52 Mo. 78. Notice given by procurement of the assignee is sufficient. Baron v. Porter, 44 Vt. 587. And see Kellogg v. Krauser, 14 Serg. & R. (Penn.) 137; MegTian v. Mills, 9 Johns. 64 ; Dale v. Kimpton, 46 Yt. 76. The assignment of a chose in action is not defeated by tlie death of the assignor. In such case the assignee is entitled to the aid, and may use the name of the executor or administrator of the assignor. Dawes v. Boylston, 9 Mass. 337. On the other hand, if an executor promise an assignee of a claim against the testator, to pay it, in consideration of the assignment and of assets, he is personally liable. Id. ; Cutts v. Perkins, 12 id. 281. By the assignment of a chose in action, an equitable and moral obligation to pay the assignee is imposed upon the debtor, which is held a good consideration for an express promise, sufficient to authorize a suit in the assignee's own name. Lang v. Fiske, 2 Fairf. (Me.) 385 ; Currier v. Hodgdon, 3 N. H. 82 ; CooUdge v. RuggleSy 15 Mass. 387 ; Barger v. Collins, 7 Harr. & J. (Md.) 213. And, in such a suit, the debtor is not entitled to avail himself of the set-off of any claims against the assignor. Thompson v. Emery, 27 N. H. 269. So, it is held to make no difference whether the contract assigned be a specialty {Compton v. Jones, 4 Cow. pS". Y.] 9), or a debt founded upon an express or implied prom- ise by parol, as for goods sold or services performed, or whether the assignment is to the assignee for his own benefit or the ben- efit of creditors. In either case the assignee may maintain the action in his own name against the debtor. QlarTc v. Thompson, 2 R. I. 146. The rule that the assignee of a chose in action may maintain an action thereon in the name of the assignor applies to a sealed instrument {Sater v. Hendershott, 1 Morris [Iowa], 118), and spe- cial authority to bring suit is not required. lb. Nor is an assignee required to show a right in himself ; he is bound only to show a right to recover in the plaintiff on the record, for it is this right alone that can be enforced. Hamilton v. Brown^ 18 Penn. St. 87 ; Saltmarsh v. Bower, 22 Ala. 221. If a person hav- ing a demand due him assigns parts of it to different persons, a court of equity has jurisdiction of a suit by one of the assignees, to collect his part of the demand. Field v. Mayor, etc., of N T., 6N.Y. (2Seld.)179. ASSIGNMENTS. 371 It has been held that the debtor may offset h, aemand against the assignee, although suit is brought in the name jf the assignor. Corser v. Oralg, 1 Wash. (0. C.) 424. But ne cannot offset a demand held by him at the time of the assignment, if he had notice from the assignee that assignment was about to be made, and he did not then disclose such demand. Kioig v. Fowler, 16 Mass. 397. So, in general, his conduct may be such as in equity to deprive him of the right of set-off. Kemp v. McPherson, 7 Harr. & J. (Md.) 320. A valid assignment of a policy of insurance, by consent of the underwriters, or otherwise, vests in the assignee all the rights of the assignor, legal and equitable, including that of action ; but the instrument, being non-negotiable in its character, is assign- able only in equity, and an action by the assignee must, at the common law, be brought in the name of the assignor. See Jessel V. WiUiamsburg Ins. Co., 3 Hill (N. Y.), 88 ; Pollard v. Somer- set Mut. Fire Ins. Co., 42 Me. 221 ; State Mut. Fire Ins. Co. v. Roberts, 31 Penn. St. 438. The only interest which passes by an assignment of a policy afters loss has occurred, and after the insurers have been served with notice thereof and with the pre- liminary proofs, is the claim or debt which the insured holds against the insurers for the amount of the loss. Hence, such an assignment is not a breach of a condition in the policy that the interest of the assured, in the policy, is not assignable unless by the written consent of the insurers ; and that in case of any trans- fer or termination of such interest without such consent, the pol- icy shall from thenceforth be void. Carroll v. Charter Oak Ins. Co., 38 Barb. 402 ; S C. again, 40 id. 292 ; S. C. affirmed, 1 Abb. Ct. App. (N. Y.) 316 ; see Shearman v. Niagara Fire Ins. Co., 46 N. Y. (1 Sick.) 526 ; S. C, 7 Am. Rep. 380." And it seems that a provision in a policy prohibiting a transfer of the interest of the assured after loss would be illegal and void. Courtney v. New YorTc City Ins. Co.,, 28 Barb. 116 ; Carroll v. Charter Dale Ins. Co., 38 id. 402. AETICLE XII. FKAUDULEKT ASSIGNMENTS. Section 1. In general. It is the policy of the law to protect creditors against any acts or contracts by the debtor to their injury, whether operating as direct frauds, or merely as construct> ive frauds. To this end the English statute of 13 Eliz. ch. 5, was passed, declaring all conveyances of goods and chattels not made 372 ASSIGNMENTS. honafide^ and upon good consideration, but L» trust for the use of the person conveying them, or made to hinder, delay, or defraud creditors, to be void. The essential provisions of this statute have been generally adopted throughout the United States. See 2 Kent's Com. 440 ; Robinson v. Holt, 39 N. H. 537 ; though they have been considered as only declaratory of the common law, which, in the opinion of Lord Mansfield, was so strong against fraud, that it alone would have attained every end proposed by this statute, and the statute of 27 Elizabeth, enacted for the pro- tection of subsequent purchasers against prior fraudulent alien- ations of the same property. Cadogan v. Kemwtt, Cowp. 434 ; and see Adams v. BrougMon, 13 Ala. 731 ; Wliittlesy v. McMahon, 10 Conn. 138 ; Whitmore v. Woodward, 28 Me. 392 ; Hamilton v. Russell, 1 Cranch (U. S.), 316 ; Gardner v. Cole, 21 Iowa, 205 ; see Mayor of Baltimore v. Williams, 6 Md. 235 ; Brown v. BurJce, 22 Ga. 574. But although the last-mentioned statute has been often held affirmative of the common law, yet it may be regarded as a settled principle that it extends only to conveyances of real estate. Its provisions extend not to goods and chattels, because the possession of these, which is ever supposed to accompany the transfer of them, is a notorious evi- dence of title, and sufficient to guard subsequent purchasers from the danger of suffering by prior voluntary conveyances of them. Bewail v. Qlidden, 1 Ala. 52 ; Teasdale v. Atkinson, 2 Brev. (S. C.) 48. All the doctrines of the courts of law and equity, concerning the voluntary settlements of real estates, and the pre- sumptions of fraud arising from them, are, however, held appli- cable to chattels ; and a gift of them is equally fraudulent and void against existing creditors. 2 Kent's Com. 440 ; Bayard v. Hoffman^ 4 Johns. Gh. (N. Y.) 450. The full discussion of this subject will appropriately fall under the head of Statute of Frauds, which see. ASSUMPSIT. 37b CHAPTER XVI. ASSUMPSIT. TITLE I. OF THE ACTION OF ASSUMPSIT, AND WHEN IT MAY OB MAY NOT BE MAINTAINED. ARTICLE I. NATURE AND DEFINITION OF. Section 1. In general. Assumpsit, in the law of contracts, is an undertaking, either express or implied, to perform a parol agreement. 1 Bouv. Diet. 159. It is the undertaking or promise upon which the action of assumpsit may be brought. Milward V. Ingram, 2 Mod. 43. Express assumpsit is an undertaking made orally, or by writing not under seal, to perform an act or to pay a sum of money to another. Implied assumpsit is an undertaking presumed in law to have been made by a party from his conduct, although he has not made any express prom- ise. 1 Bouv. Diet. 159. But, in reference to this latter species of assumpsit, or promise, it has been said, " that the notion of promises in law is a metaphysical notion, for the law makes no promise but where there is a promise of the party " (Lord Holt, in Starke v. Gheeseman, 1 Ld. Raym. 538) ; and the only real distinction between an express undertaking and one implied in law would seem to be in regard to the mode of proof, which properly belongs to the law of evidence. See, ante, 72, 73, 74, §4. In practice, assumpsit is a form of action given by law to a party injured by the breach or non-performance of a parol or simple contract legally entered into. See Rann v. Hughes, 7 T, R. 351, note ; Ballard v. Walker, 3 Johns. Cas. 60 ; Ward v. Warner, 8 Mich. 508. It lies upon contracts, either express or implied ; and as the law always implies a promise or contract to do that which a party is legally bound to perform, the action will be found to be of very extended application. See, ante, p. 73 ; 1 Chitt. PI. 98, 99 ; McQloskey v. Mill&r, 72 Penn. St. 151 ; 374 ASSUMPSIT Force v. Haines^ 17 N. J. (Law) 385. " The breach of all simple contracts, whether verbal or written, express or implied, for the payment of money, or for the performance or omission of any other act," is said to be remediable by action of assumpsit. 1 Chitt. PL 111, 112. It is technically an action on the case {Car- ter V. White, 32 111. 509), deriving its name from the emphatic Latin word of the clause formerly used in the writ and declara- tion, expressive of the defendant's undertaking. See 1 Chitt. PI. Ill, 112. In some of the older books it is called an "action upon the case upon assumpsits See Comyn's Dig. In assump- sit, damages alone are the object of the action, and the action differs from the action of deht, in this, that the amount claimed need not be liquidated {Rann v. Hughes, 7 T. R. 351, note ; Rud- der V. Price, 1 H. Bla. 547, 551. See Moses v. Macferlan, 2 Burr. 1008) ; and it also differs from covenant, in this, that it does not require a contract under seal to support it, and will not lie upon any contract under seal. lb. North v. Nichols, 37 Conn. 375 ; Slade^s Case, 4 Coke R. 92, h ; Toussaint v. Martinnant, 2 T. R. 100. It is a general rule that assumpsit will not lie where there is a remedy of a higher nature. Baber v. Harris, 9 Ad. & El. 532 ; Schlencker v. Moxsy, 3 Barn. & C. 789 ; Selw. N. P 55. It is^ however, said to be a liberal and equitable action, applicable to almost every case where money has been received, which, in equity and good conscience, ought to be refunded. Thompson v. Thompson, 5 W. Ya. 1 90. § 2. Promise. In order to supjiort assumpsit there must be a promise or undertaking on the part of the defendant, express or implied, for a promise or contract is of the very gist of the action. Wings v. Brown, 12 Rich. (S. C.) 279 ; Winston v. Francisco, 2 Wash. (Va.) 187; Lanchester v. Frewer, 2 Bing. 361 ; Candler v. Rossiter, 10 Wend. 487. § 3. Consideration. Every promise, for the non-performance of which an action of assumpsit may be maintained, must, how- ever, be founded on a sufficient consideration. Nudum pactum, or an agreement to do or pay any thing on one side, without any compensation on the other, is wholly void in law, it being a maxim in the common law of England, as well as in the civil law, that ex nudo pacto non oritur actio. See Broom's Leg. Max. 745. Thus, if a man promises another to give him so much money on a future day, or to build a house, without considera- tion, this is a naked promise, and will not oblige. Bac. Abr., Assump. C. So, an agreement to remain with a person for the ASSUMPSIT. 37B purpose of learniag a trade or business, is not binding, unless such person has bound himself to teach it, or there be some other consideration for it. Lees v. WTiitcoTnb, 5 Bing. 34. And so of a promise to pay the debt of a person illegally arrested, in consideration of his being set at liberty. Atkinson v. Settree^ Willes, 482. However binding in honor and conscience such a promise may be, it does not create a legal responsibility. See Blsee V. Gatward, 5 T. R. 143, 149 ; Bal/ev. West, 76 Eng. Com, Law (13 C. B.) 466. But any act of the plaintiff from wlticli the defendant derives a benefit or advantage, or any labor, detriment or inconvenience sustained by the plaintiff, however small the benefit or inconvenience may be, is a sufficient consideration, if such act is performed, or^ such inconvenience suffered, by the plaintiff with the consent, either express or implied, of the defendant. 1 Selw. jN". P. 55 ; and see Hulse v. Rulse, 84 Eng. Com. Law (17 C. B.) 711 ; Davis v. msheit, 100 id. (10 C. B. N. S.) 752 ; Haigh v. Brooks, 10 Ad. & El. 309 ; Child v. Morley, 8 T. R. 610. For a full discussion of the subject of considera- tion, see ante, 90, chap. II, art. YI. It has been sometimes held that it is necessary that the con- sideration on which the promise of the defendant is founded should move from the plaintiff, or, in other words, that there must be a privity of contract between the plaintiff and the defendant ; and if the plaintiff be a stranger to the consideration, he cannot maintain assumpsit. See Crow v. Rogers, 1 Str. 592 ; Price V. Easton, 4 B. & Ad. 433 ; Shear v. Overseers of Hills- dale, 13 Johns. 495 ; Cahot v. Raskins, 3 Pick. 83, 92. But we have seen, ante, 103, 104, that a different rule now prevails. A consideration altogether executed and past, is not sufficient to maintain an assumpsit ; though if it were moved by a prece- dent request, it is good, and amounts to a binding promise, ante, 109, 110. Bac. Abr., Assump., D. See Osiorne v. Rogers, \ Wms. Saund. 264, n ; King v. Sears, 2 Cr. M. & R. 48 ; Hop- kins V. Logan, 4 Mees. & W. 241. ARTICLE IL SPECIAL OK GENERAL ASSUMPSIT. Section 1. Special assumpsit. We have seen that assumpsit lies upon ev^ery kind of simple contract, whether express oi implied. Ante, art. 1, § 1. Corresponding to this distinction in contracts as express or implied, the action of assumpsit may 376 ASSUMPSIT. be divided into special and general assumpsit, fecial assump- sit is an action brought upon the express contract or promise of the defendant. This is the ground of the action, and unless the plaintiff can show that he has fulfilled, with legal suiRciency and exactness, all the terms of the contract, he can recover nothing. See Cutter v. Powell, 2 Smith's Lead. Cas. (7th Am. ed.) 61 ; DermoU v. Jones, 23 How. 231 ; S. C, 2 Wall. 1, 9 ; Morford v. Mastin, 6 Monr. (Ky.) 609; S. C, 3 J. J. Marsh. 89 ; Gregory v. Mack, 3 Hill (N. Y.), 380 ; Robertson v. Lynch, 14 Johns. 451 ; Taft v. Inhahitants of Montague, 14 Mass. 282 ; Russell V. Gilmore, 54 111. 147 ; CatJioUc BlsJiop of Chicago v. Bauer, 62 id. 188. If, however, the performance on the part of the plaintiff has been according to the terms of the contract, and has resulted in an available and practicable work of the kind required, so that he is capable of maintaining his special action at all, he is entitled, at common law, to recover the whole compensation fixed by the contract, and the defendant must resort to a cross action, to recover damages for faults in the manner of performance, or for breaches of a warranty. Cutter V. Powell, 2 Smith's Lead. Cas. (7th Am. ed.) 61 ; Eoerett v. Oray^ 1 Mass. 101. See Recoupment. A recovery in such case may, of course, be defeated by proof of fraud; for fraud vitiates every contract into which it enters. See Dermott v. Jones, 2 Wall. 1, 9. But where performance has been accepted upon a contract of sale, the defendant is not at liberty to set up the defense of fraud, unless he has returned the article, or given notice of the defect when discovered. If he retains the prop- erty, he cannot treat the sale as void {Burton v. Stewart, 3 Wend. 236) unless the thing sold was absolutely worthless, and the plaintiff could not possibly have been injured by its non-return. Id. ; Va7i Epps v. Harrison, 5 Hill (N. Y. ), 63 ; Kase V. John, 10 Watts (Penn.), 107 ; TJiornton v. Wynn, 12 Wheat. 183. It follows that on a sale, special assumpsit can only be defeated for fraud where the article has been returned, or is proved to be wholly worthless. Id. ; Cutter v. Powell, 2 Smith's Lead. Cas. (7th Am. ed.) 61, 63, 64. § 2. General assumpsit. The action of general assumpsit rests on wholly different ground from that of special assumpsit^ and is brought upon the promise or contract implied by law in certain cases. It results, however, from the nature of the action, that when the plaintiff declares generally, the defendant may show in reduction of damages, every thing that goes directly to'the con* ASSUMPSIT. 377 sideration, and immediately affects the value of the work ; for the assumpsit which the law implies, whether in quantum mer- uit, or indebitatus, is always commensurate with the actual final value of the article or work. Id. ; and see Basten v. Butter, 7 East, 479; Farnsioorth v. Garrard, 1 Camp. 38 ; Mondel v. Steele, 8 M. & W. 858 ; Rigge v. Burlidge, 15 id. 598 ; King v. Paddock, 18 Johns. 141 ; Grant v. Button, 14 id. 377 ; HecTc v. Shener-, 4 Serg. & R. (Penn.) 249. So it is well established by fhe American authorities, that when the plaintiff brings general assumpsit, when there has been a special contract, the defend- ant may give in evidence in reduction of damages, a breach of warranty, or a fraudulent misrepresentation, without a return of the article. Culmr v. BlaTce, 6 B. Monr. (Ky.) 528 ; Mixer v. Cohurn, 11 Mete. (Mass.) 559, 561 ; Steigleman v. Jeffries, 1 Serg. & R. 477; McAllister v. Beah, 4 Wend. 483 ; S. C. afiirmed, 8 id. 109 ; Batterman v. Pierce, 3 Hill (N. Y.), 172; see Draper V. Randolph, 4 Harr. (Del.) 454, 456 ; Henning v. Van Hook, 8 Humph. (Tenn.) 678, 681. ARTICLE III. WHEN THE ACTION LIES. Section 1. In general. It is proposed in this place to notice some of the cases in which the action of assumpsit will lie, with- out regard to the form of the action as general or special. Thus, it may be stated generally, that the action lies on promises to pay or repay money, or to do or forbear some other act ; as, for goods sold and delivered ; for work and labor ; use and occupa- tion, and the like ; for money lent or money paid ; for money had and received, and on an account stated. Each of these sub- divisions will be fully treated of under distinct heads in this work, and need not, therefore, be further enlarged upon in this connection. Assumpsit is held to be the proper remedy for the breach of a contract under seal, where the performance has been enlarged by parol. Smith v. Smith, 45 Vt. 433 ; and see Baird v, Bla- grave, 1 Wash. (Va.) 170. And the general rule is, that, for money accruing due under the provisions of a statute, the action may be supported, unless another remedy is expressly given. Paiolet V. Sandgate, 19 Vt. 621 ; Hillshorough v. Londonderry. 43 N. H. 451. And see Dutchess Cotton Manufactory v . Dams, 14 Johns. 238 ; Bath v. Freeport, 5 Mass. 326. And the action Vol. I. — 48 378 ASSUMPSIT. will lie for goods and chattels {Falmouth v. Penrose, 6 B. & C. 358) ; as for tobacco, where the contract is for the payment of tobacco. Marshall v. McPlierson, 8 Gill. & J. (Md.) 333. See, also, Hill V. Wallace, Add. (Penn.) 145. And where one legatee receives money belonging to another, assumpsit lies to recover it. Burdon v. GasTcell, 2 Yeates (Penn.), 268. So, the fees of a justice of the peace, appearing by his docket, may be recovered in assumpsit for work and labor, and are earned when judg- ment is recovered. Harris v. Christian, 10 Penn. St. 233. It also lies for breach of warranty, express or implied, in the sale or exchange of chattels {Timrod v. Shoolhred, 1 Bay. [S. C] 324; Hillman v. Wilcox, 30 Me. 170 ; Evertson v. Miles, 6 Johns. 138 ; Kimball v. Cunningham, 4 Mass. 505 ; Russell v. Gillmore, 54 111. 147) ; or for the breach of a contract of bailment {BanTc of Mobile V. Huggins, 3 Ala. 206) ; or to recover for the labor of servants {Janes v. Buzzard, Hempst. 240) ; or to recover the whole of an account, though covenant might have been main- tained upon some of the items thereof {State v. Jennings, 10 Ark. 428) ; or to recover the amount of a bill of exchange, given for the price of goods {Sweeny v. Willing, 6 Mo. 174) ; or to recover the consideration money for land sold. Shepard V. Little, 14 Johns. 210 ; Wood v. Gee, 3 McCord (S. C), 421. So, it will lie on a balance struck, and a promise to pay money due on a specialty, on a new consideration {Miller v. Watson, 7 Cow. 39 ; Gilson v. Stewart, 7 Watts [Penn.], 100); on an express promise by a devisee to pay a specific sum charged on the land devised {Kelsey v. Beyo, 3 Cow. 133 ; Tole v. Hardy, 6 id. 333) ; on a promise to pay a debt barred by the statute of limitations {Young Y.MacJcall, 3 Md. [Ch.] 398) ; for unpaid installments of a subscription to the stock of an incorporated company {Ban- ington v. Pittsburgh, etc., R. R. Co., 34 Penn. St. 358) ; or to recover from a bailee for hire, the value of goods and chattels delivered to him, and which he has converted to his own use. BarTier v. Cory, 15 Ohio, 9. And see Gilmore v. Wilbur, 12 Pick. 120 ; Guthrie v. WicTcliffe, 1 A. K. Marsh. (Ky.) 83; King V. Mc Daniel, 4 Call (Va.), 451 ; Johnson v. Reed, 8 Ark. 202. Assumpsit lies against a husband or father for necessary sup- plies furnished to his wife or child, whom he is bound to sup- port, and has refused or neglected to supply, notwithstanding his protestations against his liability {Van Yalkinburgh v. Watson, 13 Johns. 480 ; Hunt v. TJiompson, 3 Scam. [Ill ] 179 ; Bainbridge v. Pickering, 2 Wm. Bla. 1326) ; also, against execu- ASSUMPSIT. 879 tors for taxes due from their testators {Bulkley v. ClarJc, 2 Root [Conn.], 60) ; against a common carrier, to recover tlie value of goods coming to his possession by his tortious act, and which have been destroyed while in his custody {Cooper v. Berry ^ 21 Ga. 526) ; against a collector, for taxes collected by him {Commissioners v. Harrington^ 1 Blackf, [Ind.] 260) ; against an attorney for negligence in transacting the business of his profession {Churcli v. Mumford, 11 Johns. 479 ; Stimpson V. Sprague,eMe. 471 ; Ellis y. Henry, 5 J. J. Marsh. [Ky.] 248) ; against a bailiff, of goods on a general promise to account {Canjield v. Merrick, 11 Conn. 425) ; against a company for goods furnished {Cram v. Bangor House, 12 Me. 354) ; against the alienee of a purchaser, or other person accepting land exjDressly charged with the paj'^ment of money, as the means of enforcing payment out of the land {Be Haven v. Bartholomew, 57 Penn. St. 126) ; against a moneyed corporation for refusing to permit a transfer of its stock upon the books of the corporation, when such a transfer is necessary to give validit}^ to the transaction {Kortwriglit v. Buffalo Commercial Bank, 20 Wend. 91 ; S. C. affirmed, 22 id. 348) ; against an administrator for a distributive share in the residuum of the testator's estate {Hollohack v. Van Buskirk, 4 Dall. 147) ; or against one who acquiesces in and implicitly sanctions an act of another, done on his account, which act, if done by himself, would amount to an undertaking in law {Miller v. Creyon, 2 Brev. [S. C] 108) ; and it lies to recover upon bonds made by a municipal corporation in aid of a railroad. Town of Queensbury v. Culver, 19 Wall. 83, 92, 93. Assumpsit will likewise lie by an assignee of a pretended de- mand, if he was induced to paj^ money in consideration of the assignment by false and fraudulent representations that the demand was valid, to recover back the sum paid {Burton v. Driggs, 20 Wall. 125, 136) ; by one partner against his copart- ner, for money paid him, over and above his proportion of the profits, on dissolution and adjustment of the partnership con- cerns {Bond V. Hays, 12 Mass. 34 ; Williams v. Henshaw, 11 Pick. 79) ; by the purchaser of an article stolen by the vendor which is reclaimed by the owner, for the purchase-money ; although the vendor has not been tried for the theft {Barton v. Falierty, 3 Iowa, 327) ; by a tenant in common against his co- tenant who has received more than his share of the profits of the property owned in common {Dyer v. Wilbur, 48 Me. 287 ; Jonei V. Harraden, 9 Mass. 450 ; see Dresser v. Dresser, 40 Barb. 380 ASSUMPSIT. 300); or where he receives the whole amount of damages assessed for land, owned in common and taken for public use {Brinck- erJioffv. Wemple, 1 Wend. 470), or where he has sold the com- mon property, and received all the money. Coles v. Coles^ 15 Johns. 159 ; Oar diner Manuf. Co. v. Heald, 5 Me. 381. So, it will lie by an assignee of bank shares, against the bank, for a wrongful refusal to issue to him a certificate of such shares {Hill V. Pine River BanTc, 45 N. H. 300) ; and it will lie for work done under a sealed contract, though not done according to such contract, if accepted by him for whom it was done ( Watchman V. Crook, 5 Gill & J. [Md.] 240); or against a defendant in an ex- ecution, through whose instrumentality the property of a third person has been levied upon and sold, to satisfy a debt against himself. HacMey v. Swigeri, 5 B. Monr. (Ky.) 86. So, it lies for tolls {Quincy Canal v. Newcomh, 7 Mete. [Mass.] 276 ; Central Bridge Corporation v. Abbott, 4 Cush. 473 ; Seward V. Baker, 1 T. R. 626) ; or by a broker for his commissions in procuring a charter-party for a vessel {Bruce v. Par- S071S, 12 Oush. 591) ; or against an innkeeper for the loss of baggage through the negligence of his servant or agent {Bra- dish V. Henderson, 1 Dane Abr. 310 ; Dickinson v. WincJiester, 4 Cush. 115) ; or where the respective claims of part owners of a vessel are liquidated, to recover the balance due to either {Chadbourne v. Duncan, 36 Me. 89); or where there is an express agreement to pay rent, to recover it ; without proving occupancy of the premises leased {Stier v. Surget, 18 Miss. 154) ; and where a person accepts a deed-poll containing a reservation of certain duties to be performed by the grantee, assumpsit lies for the breach of those duties. Neioell Y.Hill, 1 Mete. (Mass.) 117; Guild V. Leonard, 18 Pick. 511. Where a contract for the sale of land is executed by a convey' ance of the land, assumpsit wUl lie for the purchase-money {Butler V. Lee, 11 Ala. 885 ; Sliephard v. Little, 14 Johns. 210 ; Goodwin v. Gilbert, 9 Mass. 510) ; and the acknowledgment of payment, contained in the deed, is not conclusive evidence to de- fea't the action. O Neale v. Lodge, 3 Harr. & M. (Md.) 433 ; Wat- son V. Blaine, 12 Serg. & R. (Penn.) 131 ; Boweii v. Bell, 20 Johns. 338 ; Wilkinson v. Scott, Yl Mass. 249. But the action cannot be maintained if the conveyance is not made until after the ac- tion is commenced. Butler v. Lee, 11 Ala. 885 ; see Gordon v. Phillips, 13 id. 565. If two buy land, and it is sold again for their mutual benefit, assumpsit may be sustained by one of them ASSUMPSIT. 381 to recover Ms share of the price. BruhaTcer v. Robinson, 3 Penn. 295. And. where two partners agree with the third that, in consideration of his retiring from the concern, and surrender- ing to them his interest in the partnership effects, they will pay a particular debt, the creditor may recover against the two in assumpsit, as if the promise had been made to him. Bellas v. Fagely, 19 Penn. St. 273. So, where a gift causa mortis was made to two, and was converted by the administrator of the de- ceased, assumpsit was held the proper remedy, and the plain- tiffs in such case should join in the action. Michener v. Dale, 23 id. 59. Where several persons agree together in an instrument of writing to contribute money for the purchase of certain land, and for the erection of mills thereon, and some of them proceed and accomplish the undertaking, they may recover in assumpsit of a party refusing to contribute the sum subscribed by him. Pillshury v. Pillshury, 20 N. H. 90. And a, person who sub- scribes for the stock in a corporation is liable in assumpsit to the corporation for the sum so subscribed. Stokes v. TurnpiTce Co., 6 Humph. (Tenn.) 241. So, an agreement to take and fill a given number of shares in an incorporated company is equiva- lent to an agreement to take and pay for such shares, and as sumpsit will lie upon it for the stipulated price of the shares. Penohsoott v. Dunn, 39 Me. 587 ; Bangor Bridge Co. v. Mc- Mahon, 10 id. 478 ; OgdenshurgTi, Rome & Clayton R. R. Co. v. Frost, 21 Barb. 641. In the case of an adjustment of accounts between a cestui que trust and his trustee, and a promise on the part of the latter to pay the amount ascertained to be due, the former may maintain assumpsit for its recovery. Nelson v. Howard, 5 Md. 327. But where the amount is undetermined, Tind there has been no promise of payment by the trustee, a court of equity alone has jurisdiction. Id. See Dias v. Brunell, 24 Wend. 9. Assumpsit also lies in favor of the heirs at law to recover against the administrator, the rents and profits of the real estate of a deceased insolvent debtor. Kimball v. Sumner, 62 Me. 305. And it will lie if the defendant refuse to convey to the plaintiff specified property, agreeably to an award of arbitrators, within the time limited therefor. Gerry v. Eppes, 62 id. 49. So, when there is a legal duty enjoined by competent authority upon a municipal corporation, assumpsit may be maintained to enforce its performance. Farwell v. Rockland, 2 id. 296. And, if a 382 ASSUMPSIT. person, to save his property from being sold on legal process^ pays a debt wbich another is legally bound to pay, he may maintain an action against such other person upon an implied assumpsit Nichols v. Buckram^ 117 Mass. 488. § 2. General indebitatus assumpsit^ when proper. The form of the action of assumpsit known as general^ or indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what in good con- science he is bound to pay to the plaintiflF. Where the case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfill that obligation. But such a promise must always be expressly charged in the declaration, and unless so alleged the action cannot be maintained. Curtis v. Fiedler^ 2 Black, 461, 478 ; V7iited States v. Russell 13 Wall. 623, 630 ; Candler v. Rossiter, 10 Wend. 487. See, ante^ art. II, § 2. But although indebitatus assumpsit is founded upon an implied promise, and while it is true that there is no liability by implication of law upon an express contract, executory in its provisions, yet if there has been full performance, and nothing remains to be done but the payment of the money, or, if there has been only part performance, and the remainder has been waived or prevented, and the work performed has been accepted, a recovery may be had for the contract price of the service per- formed, under an indebitatus assumpsit. Catholic Bishop of Chicago v. Bauer, 62 111. 188. And see, generally, in support of this doctrine, Cutter v. Powell, 2 Smith' s Lead. Cas. 23, 27 ; id. (7th Am. Ed.) 22, 49 ; Pordage v. Cole, 1 Wms. Saund. 320, note; Peelers v. Opie, 2 id. 352, note; Ohio Canal Co. v. Knapp, 9 Pet. 541, 566 ; Dermott v. Jones, 2 Wall. 1 ; Bait. & Ohio R. R. V. Potty, 14 Gratt. (Va.) 447; Allen v. McNeio, 8 Humph. (Tenn.) 46 ; Felton v. Dickinson, 10 Mass. 287 ; Ridgley v. Orandall, 4 Md. 441 ; Carson v. Allen, 6 Dana (Ky.), 395 ; Stout V. St. Louis Tribune Co., 52 Mo. 342. So, where work done under a special agreement is not finished at the time agreed upon, but is proceeded in afterward, with the assent of the party for whom the work is being done, indebitatus assumpsit lies to recover for the work done ; and if neither party be the faulty cause of delay, the recovery will be according to the rate of compensation fixed by the contract. Merrill v. Ithaca, etc., R. R. Co., 16 Wend. 586 ; Billon v. Masterton, 7 Jones & Sp. (N. Y.) 133. But if the delay be caused by the defendant, with a design to hinder the plaintiflTs performance of the agreement, ASSUMPSIT. 883 who, neverfheless, proceeds, until, in despair, be linally aban- dons the work, he is not confined to such rate of compensation, but may recover as much as his labor is worth. Id.; Hoagland V. Moore, 2 Blackf. (Ind.) 167. If there is an express agreement, and it contains nothing more than the law will imply, an action may be sustained on the implied agreement. Thus, although a surety may have a special promise of indemnity, not under seal, from the principal, yet if he has paid the demand for which he was surety, he may sue for indemnity in indebitatus assumpsit. Gihhs v. Bryant, 1 Pick. (Mass.) 118; M Williams v. Willis, 1 Wash. (Va.) 199. So, if both parties have departed from an express agreement the law raises an implied one. As where A agreed to deliver stones to B, to be paid for half in money and half in goods, and the stones were delivered by A, and some of the goods were deliv- ered by B, and B sued and recovered for those goods, it was held that A might recover for the stones in indebitatus assump- sit. Goodrich v. Lafflin, 1 Pick. 57 ; and see Raymond v. Bearnard, 12 Johns. 274 ; FitcJi v. Sargeant, 1 Ohio, 352, Where one of the parties to a contract dies, unless his death terminates the contract, it is the duty of his legal representative to carry the contract out, and in case of his neglect or refusal to do so, the other party may treat the contract as rescinded and sue the representative in general indebitatus assumpsit. Miller V. Thompson, 22 Ark. 258. The law holds parties strictly to the terms of their contracts. If a party, by his contract, charges himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law or the o'her party. Unforeseen difficul- ties, however great, will not excuse him. Paradine v. Jayne^ Alleyn, 27 ; Beat v. Thompson, 3 Bos. & P. 420 ; Beebe v. John- son, 19 Wend. 500. If unexpected impediments lie in the way, and a loss must ensue, the law leaves the loss where the contract places it. If the parties have made no provision for a dispensa- tion, the rule of law gives none. It does not allow a contract fairly made to be annulled, and it does not permit to be inter- polated what the parties themselves have not stipulated. Dermoti V. Jones, 2 Wall. 1 ; Cutter v. Powell, 2 Smith' s Lead. Cas. (7th Am. Ed.) 55, 56. Among the numerous cases in which the action of assumpsit, in the form of indebitatus assumpsit, has been maintained, are the following : To recover money advanced upon a special con* 384 ASSUMPSIT. tract which has been rescinded. JenJcins v. Thompson, 20 N. H. 457 ; and see KimbaU v. Cunningham, 4 Mass. 504 ; Byers v. Bostwick, 2 Treadw. (S. C.) 75 ; Dubois v. Delaware^ etc., Co., 4 Wend. 285 ; to recover back money paid by a purchaser, on a parol contract, for real estate, where the vendor or his heirs are una- ble or fail to perform their part of the contract. Barickman v. Kuylcendall, 6 Blackf. (Ind.) 22 ; to recover the price of land sold and conveyed to the defendant. Siltzell v. Michael, 3 Watts & Serg. 329 ; see ante, 380 ; to recover for extra work not em- braced in a special contract, and done upon the subject of that contract. Bowel v. BucTdey, 13 Mo. 317 ; Bachelder v. BicJc- ford, 64 Me. 526 ; to recover money agreed to be paid for owelty, on a parol partition of lands. Walter v. Walter, 1 Whart. (Penn.) 292 ; to recover the wages of a seaman, who had signed shipping articles, was taken sick while in the defendant's service, and was unable to rejoin the ship. SyJces v. Summerel, 2 Browne (Penn.), 225 ; after a settlement of accounts, to recover for an item of indebtedness omitted by mistake on the settlement. Sage v. Hawley, 16 Conn. 106 ; or, between near relatives, to re- cover for board and maintenance, on proof of an express prom- ise, or an actual understanding in respect to payment therefor. Cannon v. Windsor, 1 Houst. (Del.) 143 ; see Chapman v. Rich, 63 Me. 588. So, general assumpsit is held to lie on an express, as well as on an implied promise. Snyder v. Castor, 4 Yeates (Penn.), 353 ; upon a judgment of a justice of the peace. Green V. Fry, 1 Cranch (C. C), 137 ; but not in New York. Andrews V. Montgomery, 19 Johns. 162 ; nor in North Carolina. Bain v. Hunt, 3 Hawks (N. C), 572 It will lie against a sheriff for money received on execution by himself or his deputy. Oner- ton V. Hudson, 2 Wash. (Va.) 172 ; but see Armstrong v. Oar- row, 6 Cow. 465 ; and to recover back over-payments made on the note of a third person in its absence, upon the holder's agree- ment to refund any excess. Stipp v. Johnston, 68 111. 176. Sd, in the case of a contract for the sale, at $24,000, of a livery sta- ble, together with the exclusive privilege of furnishing the guests of a certain hotel with carriage-hire, the vendor falsely repre- senting that he had such privilege, and that it alone was worth $5,000, the contract was held to be severable, and that indebita- tus assumpsit would lie to recover back the last-mentioned sum. Reybold v. Henry, 3 Houst. (Del.) 279. Where work is done for A, at the request of B, indebitatus assumpsit may be maintained against B. OlarJc v. Roo^, 16 ASSUMPSIT. 38fl Ark. 172. So, apon an agreement that a seller shall receive specific articles in payment for goods sold, and the defendant fails to deliver the articles according to agreement, this form of the action lies against him for goods sold. Baylies v. Feihy- place, 7 Mass. 325, 329. And the holder of a note payable in labor or specific goods, in a suit against a payee, who has passed it with the indorsement "pay the bearer," may declare in gen- eral assumpsit. Elkinton v. Fenyiimore, 13 Penn. St. 173. Likewise, if a creditor for goods sold, etc., take a chose in action for collateral security, and payment has not been obtained from it, he may recover in indebitatus assumpsit and is not obliged to resort to an action on the special agreement under wliich the security was received. Leas v. James, 10 Serg. & R, (Penn.) 307. A memorandum promising to pay money "as soon as a crop could be sold or the money raised from any other source," was held not to be a promissory note or special agreement such that the plaintiff, by putting it in evidence, precluded himself from recovering in indebitatus assumpsit upon an account stated. Nunez v. Dautel, 19 Wall. 560. § 3. When special assumpsit lies. In general, excejDt as stated in the preceding section, if there be an open or unperformed special agreement, special assumpsit must be brought thereon. Maynard v. Tidhall, 2 Wis. 34; Western v. Sharp, 14 B. Monr. (Ky.) 177 ; Slierman v. New YorTi Central Railroad Co., 22 Barb. 239 ; Geer v. Broion, 11 Rich. (S. C.) 42. See Weiss V. Mauch ChunJc, etc., Railroad Co., 58 Penn. St. 295; Norris v. Burfiam, 9 Cow. 151 ; Butterfield v. Seligman, 17 Mich. 95. It has been held that where, under an express con- tract, payment is to be made, partly or wholly, by specific articles, the declaration should be special for a failure to deliver such articles. Bradley v. Levy, 5 Wis. 400 ; Bernard v. BicJcins, 22 Ark. 351 ; and see Weart v. Hoagland, 2 Zabr. (^T. J.) 518 ; Mitcliell V. Gile, 12 N. H. 390 ; Fitch v. Casey, 2 Iowa, 301 ; Harrison v. Lmke, 14 M. & W. 138. But see Clark v. Fair child, 22 Wend. 576. So, there must be a special count to try an express or an implied warrant3^ Fowler v. Williams, 2 Brev. (S. C.) 304 ; Russell v. Gillmore, 54 III. 147 ; MarJcley v. Wit7iers, 4 T. B. Monr. (Ky.) 15. And a special count is necessary where the plaintiff claims damages for the non-performance of an executory agreement, and the breach sounds in damages mertly. Vincent ' V. Rogers, 30 Ala. 471 ; and see Cutwater v. Dodge, 7 Cow. 86 ; and a promise to board the plaintiff for a certain time must be Vol. I.— 49 386 ASSUMPSIT. specially declared on. Haynes v. Woods, 1 Stew. (Ala.; 12. So, it is held, that where there is an express agreement for particu- lar services for a certain time, and the plaintiff is discharged by the defendant before the time has elapsed, and is prevented from performing the services, he must declare on the special agreement. Algeo V. Algeo, 10 Serg. & E,. 235 ; Donaldson v. Fuller, 3 id. S05 ; but see Perkins v. Hart, 11 Wheat. 237 ; Cutler v. Powell, 2 Smith's Lead. Cas. 51, 52; ante, § 2. If there has been an entire executory contract, and ths plaintiff has performed a part of it, and then willfully refuses, without legal excuse and against the defendant' s consent, to perform the rest, he can recover noth- ing either in general or special assumpsit. Dermott v. Jones, 2 Wall. 1, 9 ; Stark v. Parker, 2 Pick. 267 ; Angle v. Hanna, 22 111. 431 ; Malbon v. Birney, 11 Wis. Ill ; Cutter v. Powell, 2 Smith's Lead. Cas. (7th Am. Ed.) 53, 54 ; and see JVemlle v. Frost, 2 E. D. Smith (N. Y.), 63; Jones v. Jones, 4 Md. 607; Pullman v. Corning, 14 Barb. 174 ; S. C. affirmed, 9 N. Y. (5 Seld.) 174. ARTICLE IV. WHEN THE ACTION DOES NOT LIE. Section 1. In general. An assumpsit will not generally be implied where there is an express promise ( WortheJi v. Stevens^ 4 Mass. 449 ; WJiiting v, Sullivan, 7 id. 107. See ante, 74) ; nor will assumpsit on an implied promise lie, as a general rule, against the express declaration of the defendant (Id. ; Jewett v. Somersett, 1 Me, 125) ; unless there is a legal obligation para- mount to the will of the party. See United States v. Wolf, Add. (Penn.) 312 ; Proprietors v. Taylor, 6 N H. 499 ; ante, art. Ill, § 2. It will not lie upon a contract under seal {North v. Nichols, 37 Conn. 375 ; Norris v. Maitland, 9 Phil. [Penn.] 7) ; unless the contract has been subsequently varied by the parties {Aikhi V. Bloodgood, 12 Ala. 231 ; Smith v. Smith, 45 Vt. 433 ; Pierce V. Lacy, 23 Miss. 193 ; Brown v. Gauss, 10 Mo. 265 ; Little v. Morgan, 31 N. H. 499) ; and a contract for a fixed salary and an implied assumpsit cannot stand together. Chandler v. State, 5 Harr. & J. (Md.) 284. Thus, the judicial services of a judge, who has a fixed salary, is not a foundation from which an assumpsit on the part of the State can be implied. State v. Chase, 5 id. 287 ; ante, 74. Assumpsit for money paid to the use of another will not lie where there was no express or implied promise on ASSUMPSIT. 387 his part to repay it. Briscoe v. Power, 64 HI. 72 ; IngraTiam y. Gilbert, 20 Barb. 151 ; Homestead Company v. Yalley Railroad, 17 Wall. 153. And the law will not imply a promise when the circumstances repel all implication of a promise, in fact. Thus, it is held that assumpsit will not lie for the value of personal property, against a trespasser who still retains the property in his possession. Kelty v. Owens, 4 Chand. (Wis.) 166 ; Watson v. Stever, 25 Mich. 386. In further illustration of this subject it has been held that assumpsit cannot be maintained on a specialty {Dubois v. Doubleday, 9 Wend. 317 ; HinJdey v. Fowler, 15 Me. 285 ; Gaz- zum V. Ohio Ins. Co., Wright [Ohio], 214) ; on an award, when the submission to arbitration is under seal {McGargo v. Crutcher, 23 Ala. 675 ; Tullis v. Sewell, 3 Ohio, 510 ; Holmes v. SmitJi, 49 Me. 242) ; for labor and materials furnished under a sealed con- tract with a corporation {Porter v. Androscoggin, etc., P. P. Co., 37 Me. 349) ; on a policy of insurance under seal {Marine Ins. Go. V. Young, 1 Cranch, 332 ; Strobel v. Large, 4 McCord [S. C.], 114) ; to enforce the liability of one who has assigned a specialty by indorsement under seal {Sommermlle v. Stephenson., 3 Stew. [Ala.] 271) ; nor to recover back the price of property under a warranty contained in a sealed instrument. Anderson V. Solomon, 2 Treadw. Const. (S. C.) 329. So it has been held not to lie upon a judgment rendered in a sister State {India Rub- ber Co. V. Hoit, 14 Vt. 92 ; Andrews v. Montgomery, 19 Johns. 162; Garland v. Tucker, 1 Bibb [Ky.], 361; McKimY. Odom, 12 Me. 94 ; but see Hubbell v. Coudrey, 5 Johns. 132 ; LambJcin v. Nance, 2 Brev. [S. C] 99) ; nor on a judgment of a court in the same State ( Fster v. Orne, 45 Vt. ARTICLE VIII. REMEDIES FOR ILLEGA.L ATTACHMENT OR SEIZURE. Section 1. By action ou attachment Ibond. Li many of the States a cantionary or security bond is required to be executed by the plaintiff and sureties, to indemnify the defendant against damage resulting from the attachment. The effect of the execu- tion of such a bond is, to afford the defendant recourse against the plaintiff on the bond, for a wrongful attachment, where there existed no malice in suing it out. The party whose prop- erty is attached may find the proceeding wrongful and vexa- tious, and the suing it out may be ruinous to his credit and cir- cumstances, though obtained without the least malice toward him. If the plaintiff, under color of the process, does, or pro- cure to be done, what the law has not authorized, and the de- fendant is thereby injured, it seems clear that he is, in such case, as much as in any other, entitled to redress from the party whose illegal or wrongful act has occasioned the injury, although it may have been done without malice. Wilson v. Outlaw^ Minor (Ala.), 367 ; Seay v. Greenwood, 21 Ala. 491 ; Dunning V. Humphrey, 24 Wend. 31 ; Tallant v. Burlington O as-light Co., 37 Iowa, 261 ; Williams v. Hunter, 3 Hawks (N. C.) 545. But it is held that no action lies for irregularly suing out an attachment. Id. ; Sharpe v. Hunter, 16 Ala. 765. So, a mere failure to prosecute the suit does not give an action on the bond. The order must have been procured wrongfully and without just cause to constitute a breach of the condition, although tlie plaintiff may have abandoned the prosecution of the suit. Pettit V. Mercer, 8 B. Monr. (Ky.) 51 ; Smith v. Story, 4 Humph. (Tenn.) 169. But see Cox v. Robinson, 2 Rob. (La.) 313. ATTACHMENT. 421 And an action may be sustained on the undertaking, if the prosecution of the attachment can be shown to be wrongful and oppressive, even though the plaintiif in the attachment succeeded in-that proceeding, liarper v. Keys, 43 Ind. 220. The bond is Required simply for the benetit of the party against whom the w^rit issues, and he only can maintain an action on the bond. Baspillier v. Broionson, 7 La. 231 ; Davis v. Commonwealth, 13 Gratt. (Va.) 139. But in case of a bond executed to several, a joint action may be maintained, although the attachment was levied on the separate property of each, in which they have not a joint interest. Royd v. Martin, 10 Ala. 700. See Alexander v. Jacobs, 23 Ohio St. 359. Xo action will lie, hoAvever, on an attachment bond until the attachment shall have been discharged, and such final disposition of it must be alleged. Nolle v. Thompson, 3 Mete. (Ky.) 121 ; Biiticky. Wil- kins, 7 Heisk. (Tenn.) 307. And it has been held that, in order to maintain an action on the bond, suit must first be brought to recover for the malicious act in suing out the attachment. Hol- comh V. Foxworth, 31 Miss. 265 ; Sledge v. Lee, 19 Ga. 411 ; Pinney v. Hershfield, 1 Mon. T. 367. But the better opinion would seem to be that this is not requisite. Churchhill v, Abraham, 22 111. 455 ; Bruce v. Coleman, 1 Handy (Ohio), 515 ; Smith V. Eakin, 2 Sneed (Tenn.), 456 ; Herndon v. Forney, 4 Ala. 243 ; Dickinson v. McGraw, 4 Rand. (Va.) 158. iSTor is it necessary, in order to enable the party injured to maintain a suit on tlie bond, that he should obtain an order of the court in which the bond was tiled, to deliver it to him for suit. Bruce v. Coleman, 1 Handy (Ohio), 515 ; see Adams v. Olive, 48 Ala. 551. The plaintiff, in an action on an attachment bond, is entitled to recover the actual damage he has sustained in consequence of the wrongful issuing of the attachment, by being deprived of his property, together with the actual costs and expenses incurred in defending the attachment proceedings. See Donnell v. Jones, 13 Ala. 490; Johnson y. Farmers' Bank, 4 Bush (Ky.), 283; Munnerlyn v. Alexander, 38 Tex. 125 ; Hay den v. Sample, 10 Mo. 215; Dunning y. Humphrey, 24 Wend. (N. Y.) 231. See Wilson V. Root, 43 Ind. 486. But remote or speculative damages, Buch as result from injuries to credit, business, character or feelings, cannot be recovered, if the attachment was procured in good faith. Pettit v. Mercer, 8 B. Monr. (Ky.) 51 ; Campbell v. Chamberlain, 10 Iowa, 337; Floyd v. Hamilton, 33 Ala. 235; State V. Thomas, 19 Mo. 613 ; Myers v. Farrell, 47 Miss. 281 ; 428 ATTACHMENT. Plumb V. Woodmansee, 34 Iowa, 116. In the case last cited, it was ]ieid that the plaintiff could not recover for attorney fees paid by him for defending the attachment suit. And see Moore V. Stanley, 51 Mo. 317 ; Hughes v. Brooks, 36 Tex. 379. § 2. ]>y action for malicious attaclimeut. In the absence of malice, an action for the wrongful suing out of an attachment can be maintained only on the attachment bond. But if the defendant's property be attached maliciously, and without probable cause, the attachment plaintiff may be subjected to damages in an action governed by the principles of the common law applicable to actions for malicious prosecution. Lomer v. Gilpin, 6 Dana (Ky.), 321 ; Smith v. Story, 4 Humph. (Tenn.) 169 ; Ry v. Barnhartt, 10 Mo. 151 ; McKellar v. Couch, 34 Ala. 336 ; Tallant v. Burlington Oas-light Co., 37 Iowa, 261 ; Wood V. Weir, 5 B. Monr. (Ky.) 544. The malice necessary to be shown in order to maintain the action is not necessarily revenge or other base and malignant passion. Whatever is done will- fully and purposely, if it be at the same time wrong and unlaw- ful, and so known to the party, is in legal contemplation mali- cious. See Wills v. Noyes, 12 Pick. (Mass.) 324; Kirlisey y. Jones, 7 Ala. 622 ; Foster v. Sweeny. 14 Serg. & R. (Penn.) 387 ; KirJiham v. Coe, 1 Jones' L. (N. C.) 423; Burkhartv. Jennings, 2 W. Ya. 242. But the action cannot be maintained against an attachment plaintiff, on account of an attachment maliciously obtained without his knowledge, by an attorney at law employed by him to collect a debt {Kirksey v. Jones, 7 Ala. 622) ; though the attorney may be held liable, and in a case where he and his client act in concert they are both liable. Wood v. Weir, 5 B. Monr. (Ky.) 544. See Marshall v. Betner, 17 Ala. 832. It constitutes no obstacle to the maintenance of the action, that the attachment was obtained in a court within a foreign juris- diction. Wiley V. Traiwick, 14 Tex. 662. Nor does the con- sent of the defendant to a discontinuance of the attachment suit preclude him from claiming damages for a wrongful seizure. Spalding v. Wallett, 10 La. Ann. 105. And where property, exempted hj law from attachment and execution, had been attaclied on mesne process, and the debtor declared to a third person " that he cared nothing about the property thus attached, that the creditor might have it and welcome, but he would take care that he got no more," it was held that neither this declaration nor evidence that the creditor, having heard of it, proceeded to act upon it, and caused the goods to be sold upon execution, could ATTACHMENT. 429 avail to defeat the action. Rice v. Chase, 9 N. H. 178. An action for a malicious attachment cannot be brought, however, until the termination of the attachment suit ; but an omission to aver its termination in the declaration is cured by verdict. Feazle v. Simpson, 2 111. (1 Scam.) 30; Wolle v. Thompson, 3 Mete. (Ky.) 121 ; liea v. Lewis, Minor (Ala.), 382. See Fortman v. Roitler, 8 Ohio St. 548. As it regards damages in an action for malicious attachment, the same rules apply as in other cases of malicious prosecution. The extraordinary costs, as between attorney and client, as well as all other expenses necessarily incurred in defense, are to be taken into the estimate of damages. See Sandhack v. Thomas, 1 Stark. 306 ; Tompson v. Mussey, 3 Me. 305. So, it has been held that fees paid an attorney for defending the original suit may be recovered as part of the damages {Hughes v. Brooks, 36 Tex. 379 ; Marshall v. Betner, 17 Ala. 832); and for injuries to his credit and business the plaintiff is also entitled to recover damages. State v. Thomas, 19 Mo. 613 ; Goldsmith v. Picard, 27 Ala. 142. But see 0' Grady v. Julian, 34 id. 88. See ante^ 143j as to maliciously suing out an attachment and seizing goods. 430 ATTORNEYS. CHAPTER XVIII. ATTORNEYS. TITLE I. OF THE POWERS, RIGHTS, DUTIES AND LIABILITIES OF ATTORNEYS IN GENERAL. ARTICLE I. NATUEE OF THE OFFICE AND QUALIFICATIONS FOE. Section 1. Nature of the office generally. The word "attor- ney," uncoupled with any qualifying expression, will be con- strued as meaning attorney at law. Troiohridge v. Weir, 6 La. Ann. 706 ; Ingrain v. Richardson^ 2 id. 839. And an attorney at law is defined to be one who is pnt in the place, stead, or tur?i of another, to manage his matters of law. 2 Broom & Had. Com. 19, Wait'S ed. ; 3 Bl. Com. 25. He is regarded as an offi- cer of the court in which he is admitted to practice, and is held subject to the control of such court. 3Ierritt v. LaDibert, 10 Paige (N. Y.), 352 ; S. C, 2 Denio, 607 ; Denton v. Noyes, 2 Johns. (N. Y.) 296. So, attorneys, like other officers of the court, are, b}^ a legal fiction, always deemed to be, during term, present in court. People v. I^emns, 1 Hill (N. Y.), 154. The office is one to be held during good behavior, and the attorney can only be deprived of it for misconduct ascertained and declared by the judgment of the court after an opportunity to be heard has been afforded. Adstin^s Case, 5 Rawle (Penn.), 191 ; Fletcher v. Daingerjield, 20 Cal. 430; Ex parte Heyfron, 7 How. (Miss.) 127. It has been said that attorneys are to be considered as public officers. Waters v. Whittemore, 22 Barb. (N. Y.) 595. But, in South Carolina, it was held in an early case, that an attorney at law is not a public officer (Byrne v. Steioart, 3 Desau. [S. C] 466) ; and it was decided in the Supreme Court of the United States that attorneys and counselors in the Federal courts are not officers of tlie United States. Ex parte Garland, 4 AVall. ATTORNEYS. 431 (U. S.) 333, 378. And see IngersoU v. Howard, 1 Heisk. (Tenn.) 247; Leigh's Case, 1 Munf. (Ya.) 468; Ex parte Faulkner, 1 W. Va. 269 ; Ex parte Law, 35 Ga. 285 ; Ex parte Yale, 24 Cal, 241. Until recently, the two degrees of attorney and coun- sel were kept separate in the Supreme Court of the United States, and no person was permitted to practice both as attorney and counselor in that court. See HallowelV s Case, 3 Dall. 410. But the same person may now act as both {Ex parte Garland, 4 Wall. [U. S.] 333, 378) ; as he may in all the other courts of the United States, as well as in the courts of the several States. 1 Kent's Com. 308. Both titles are, however, still retained in common use. The office of attorney, in the professional sense of the term, is not known in justices' courts. They are not courts of record, and have no such control over those who practice in them, as to render it safe to give to such persons any very liberal power, to conclude the rights of those whom they claim to represent. Bailey v. DelaploAne, 1 Saudf. ("N". Y.) 11 ; and see Hughes v. Mulvey, id. 92. § 2. Who may be admitted. The question as to who may be admitted to the office of attorney is to be determined by the rules and regulations established on the subject in the several States. Every State in the Union has laws by which the right to practice in its courts may be granted, and that right is very generally made to depend upon the good moral character, the learning, and the professional skill of the party on whom the privilege is conferred. The right to admission in no sense depends on citizenship of the United States. Bradwell v. State, 16 Wall. (U. S.) 130. And tke citizen of one State is not enti- tled, as matter of right, to admission to the bar of another State. Mattel* of Henry, 40 N. Y. (1 Hand) 560. So, where a woman was refused a license to practice law in the courts of a State, on the ground that females are not eligible under the laws of that State {Re Bradwell, 55 111, 535), it was held that such a decision violated no provision of the Federal Constitution. Bradwell v. The Stale, 16 Wall. (U. S.) 130. Congress has power to prescribe the qualifications for the office of attorney and counselor in the Federal courts ; but it ia held that this power cannot be exercised as a means for the in- tiiction of punishment for the past conduct of such officers, against the inhibition of the Constitution. Ex parte Garland,, 432 ATTORNEYS. 4 Wall. (U. S.) 333, 380. See Gummlngs v. State of Missouri, id. 277. § 3. Qualifications. Attorneys are officers of the court, admit ted as such by its order upon evidence of their possessing suffi- cient legal learning and fair private character. It is the general practice in this country to obtain this evidence by an examina- tion of the parties making application for admission. And where the law provides for an examination of applicants for admission to the bar, before their admission, a candidate ought not to be admitted witliout attending in person at the time of the hearing, even when physically disabled at the time from coming. Ex lom-te Snelling^ 44: Cal. 553. In regard to the inquiry as to the moral character of an applicant for admission, the court is not limited to the certificate, but will look behind it, and is bound to do so in cases attended with suspicious circumstances. Attorneys^ License, 21 IS . J. L. (1 Zab.) 345. The constitution of the State of New York gives to every qualified applicant a title to admission, which is held to be a substantial right. And an act of the legislature of that State, making the diploma of a law school of the State conclusive evidence of the learning and ability of its possessor, was held to be constitutional and valid. Matter of Cooper, 22 N. Y (8 Smith) 67. An attorney at law is not bound, as a requisite of admission, in Yirginia, to take the oath prescribed in the act against duel- ling, the practice of law not being an office or place under the Commonwealth. LeigK s Case, 1 Munf. 468; see Seymour v. Ellison, 2 Cow. (N. Y.) 13. Matter of Wood, 1 Hopk. (N. Y.) 6 ; Matter of Dorsey, 7 Port. (Ala.) 293. So, it has been held that the act of the legislature of Tennessee, requiring the courts to call before it *' all the officers thereof," who shall swear that they are not guilty of any of the offenses contained in the Ku-Klux act, does not apply to attorneys. Trigersoll v. Hoioard, 1 ITeisk. (Tenn.) 247. And one who has received a full pardon for all offenses committed by his participation, direct or implied, in the rebellion, is relieved from all penalties and disabilities attached to the offense of treason, committed by such participa- tion. For that offense he is beyond the reach of punishment of any kind. He cannot, therefore, be excluded by reason of that offense, from continuing in the enjoj^ment of a previously acquired right to appear as an attorney and counselor in the United States courts. Ex parte Garland, 4 Wall. (U. S.) 333 ; see ATTORIS^EYS. 433 Ex parte Tenney, 2 Duv. (Ky.) 351. In its application to such a person, the " attorneys' test oath," prescribed by act of congress of January 24, 1865, is held to be unconstitutional. Id.; Exparte Law, 35 Ga. 285 ; and see Ex parte Quarrier, 2 W. Ya. 569. The "attorneys' test oath act," of West Virginia, of February 14, 1866, was held to be not unconstitutional. Ex parte Hunter, 2 W. Va. 122. As to the effect of that act upon attorneys who had qualified as such before its passage, see Ex parte Quarrier, 4 id. 210. A Virginia license to an attorney resident in the State at the time of the separation has the same effect in the State of West Virginia as if granted in that State. Ex parte Faulkner, 1 W. Va. 269 ; Ex parte Quarrier, 2 id.- 569. It is now settled that the admission of attorneys by the courts is not the exercise of a mere ministerial power. In the per- formance of the duty, the courts are to be considered as engaged in the exercise of their appropriate Judicial functions. Matter of Cooper, 22 N. Y. (8 Smith) 67; 8tr other v. Missouri, 1 Mo. 605; Ex parte Garland, 4 Wall. (U. S.) 378 ; Bradwell v. The State, 16 id. 133; Ex parte Secoinb, 19 How. (U. S.) 9; Commonwealth V. Judges, etc., 1 Serg. & R. (Penn.) 187, The admission of an attor- ney is not, therefore, the subject of a writ of mandamus. Id. But the proceeding may be reviewed on writ of error or appeal, as the case may be. Id. § 4. Suspension. It is within the power of the court to suspend an attorney from practice for a limited time. Ex parte Burr, 2 Cranch (C. C), 379 ; Paul v. Purcell, 1 Browne (Penn.), 348. And where an attorney commenced an action without being retained for that purpose, and failed in the suit, it was ordered that he should pay to the defendant his costs in ten days after notice of a rule upon him, or that he should be suspended from all practice as an attorney until the costs should be paid. Anonymous, 2 Cow. (N. Y.) 589. Where a statute made pro- vision for the suspension of an attorney, guilty of certain speci- fied wrongful acts, it was held that this provision did not restrict the general power of courts over their ofl[icers, and that they could suspend an attorney for other causes than those mentioned in the statute. Matter of Mills, 1 Mich. 392. In Xew Hamp- siiire an attorney may be suspended from practice in the common pleas by that court, on good cause shown ; but ignorance of the law is held not good cause. Bryant's Case 24 N. H. (4 Post.) 149. Vol. L — 65 434 ATTORNEYS. An attorney's license cannot be summarily suspended by the court, but only upon an accusation, notice, and a day in court. State V. 8tai% 7 Iowa, 499 ; see Withers v. State^ 36 Ala. 252 ; Fisher's Case, 6 Leigh (Va.), 619. And the precise cause of suspension must appear in the order of suspension. State w WatMns, 3 Mo. 388. An attorney, in contempt of the process of the law, by neglecting to appear before an examiner to tes- tify, cannot be punished hj suspending him from his profes- sional functions. Commonwealth v. Newton, 1 Grant's Cas. Penn.) 453. § 5. Striking off the roll. An attorney and counselor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. See Ex parte Garland, 4 Wall. (U. S.) 333. The specific cases in which the court will be justified in striking the name of an attorney from ihe roll will be enumerated in a subsequent section. See post, , art. 10. ARTICLE 11. AUTHORITY OR POWERS OF ATTORNEYS. Section 1. In general. An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court, necessary or incidental to the prose- cution and management of the suit, and which affect the remedy only, and not the cause of action. Wieland v. White, 109 Mass. 392 ; Moulton v. Bowker, 115 id. 36 ; S. C, 15 Am. Rep. 72 ; Mice V. Wilkins, 21 Me. 558. And it may be stated as a general rule, that in the absence of fraud, his acts are binding upon the client. Jjdioson v. Bettlson, 12 Ark. 401 ; Chambers v. Hodges, 23 Tex. 104 ; Sampson v, Ohleyer, 22 Cal. 200. And, unless an attorney be so situated as to excite the suspicion of the court, his authority will not be questioned. Taliaferro v. Porter, Wright (Ohio), 611 ; Smith V. Steioart, 6 Johns. (N . Y.) 34 ; Bogardus v. Lioingston, 2 Hilt. (N. Y.) 236. When one puts his case against another into the hands of an attorney for suit, it is a reasonable presumption ATTORNEYS. 436 that the authority he intends to confer upon the a'.toiney includes such action as the latter, in his superior knowledge of the law, may decide to be legal, proper and necessary in the prosecution of the demand {ante^ 221); and, consequently, what- ever adverse proceedings may be taken by the attorney are to be considered, so far as they affect the defendant in the suit, as approved by the client in advance, and, therefore, as his act, even though tliey prove to be unwarranted by the law. Foster v. Wiley, 27 Mich. 244 ; S. C, 15 Am. Rep. 185. So, the acts and proceedings of an attorney in a suit may become binding upon a client by a ratification thereof. See Narraguagus v. Went- iDorth, 36 Me. 839 ; Mason v. Stewart, 6 La. Ann. 709 ; Williams V. Reed, 3 Mas. (C. C.) 405 ; By an v. Doyle, 31 Iowa, 53. § 2. To demand clients' money^ etc. An attorney may, by virtue of his retainer, receiver his client' s money in any case in which he is employed ; and the act will be binding upon his client, unless the party paying it had notice of a revocation of the attorney's authority to act in the case. Hiller v. /?)?/, 37 Miss. 431 ; Ruckman v. Allwood, 44 111. 183 ; Ducett v. Cun- ningham, 39 Me. 386 ; Megary v. Funtis, 5 Sandf. (N. Y.) 376. But an attorney is not authorized to receive any other thing than lawful money in payment of his client's claim, without express authority from his client or principal. Bailey v. Bagley, 19 La. Ann. 172 ; Wright v. Daily, 26 Tex. 730 ; Jeter v. Hamland, 24 Ga. 252 ; Harper v. Harvey, 4 W. Va. 539 ; Stackhouse v. OHara, 14 Penn. St. 88; Fly v. Harvey, 6 Bush (Ky.), 620; Moye V. Cogdell, 69 N. C. 93. He may, however, receive partial payments on any claim put in his hands for collection. Pickett V. Bates, 3 La. Ann. 627. And it has been held that, under his general authority to collect, he may accept payment partly in cash, and partly in a note, at a short date, of a person of undoubted responsibility. Livingston v. Radcliff, 6 Barb. (N. Y.) 201. So, it was held in a Virginia case, that an attorney who accepted Confederate treasury notes in payment of a claim placed in his hands for collection, at a time when such notes constituted the only currency in use, and were but slightly depreciated, was not responsible to his client for the ultimate loss on such notes, when the latter did not instruct him not to accept payment in such currency. Pidgeon v. Williams, 21 Gratt. (Va.) 251. An attorney, though authorized, is not bound to receive money collected for his client on execution. Poole v. Gist, 4 McCord 436 ATTORNEYS. (S.C.), 259. And where the client receives Ihe execution into his own hands, and pays the attorney his costs, the power of the attorney ceases, and he will no longer be authorized to receive the money due on the execution. Parlcer v. Doioning, 13 Mass. 465. An attorney cannot bind his client by an agreement to set ofi' his own debt in j)art payment of a debt due the client {Child v. Dwight, 1 Dev. & B. Eq. [N. C] 171) ; nor has he a right to enter into an agreement, by which land is to be taken instead of money, in satisfaction of his client's claim. Huston v. Mitcliell^ 14 Serg. & R. (Penn.) 307. But he has authority to receive seizin for the creditor, on a levy of an execution on the debtor's land. Pratt v. Putnam, 13 Mass. 363. § 3. To dispose of securities, etc. An attorney at law, who has been employed to collect a claim, has no power to sell or other- wise dispose of the claim, without express authority from his client. Thus, he cannot transfer a note in his hands for collec- tion {Cliild V. Eureka, etc., Works, 44 N. H. 354 ; Russell v. Drummond, 6 Ind. 216 ; Craig v. Ely, 5 Stew. & P. [Ala.] 354) ; nor can he sell or assign a judgment of his client without express authority. Fassitt v. Middleton, 47 Penn. St. 214 ; Roiolandx. State, 58 id. 196 ; Maxwell v. Owen, 7 Coldw. (Tenn.) 630. So. an attorney into whose hands a demand is put for collection, has no authority to surrender such demand, upon th^ undertaking of another person ; and, especially, if the security was not there- by strengthened. Tankersly v. Anderson, 4 Desau. (S. C.) 44. § 4. To make settlements, compromises, etc. It is a general rule that an attorney cannot, by virtue of his general authority to conduct a suit, bind his client by bargains or contracts to com- promise the cause of action. Such bargain or contract is void, unless specially authorized or ratified by the client. Spears v. Ledergerher, 56 Mo. 465 ; Walden v. Bolton, 55 id. 405 ; Maddux V. Bevan, 39 Md. 485 ; Adams v. Roller, 35 Tex. 711 ; Moye v. Cogdell, 69 N. C. 93 ; Marhourg v. Smith, 11 Kans. 554 ; Mande- mile V. Reynolds, 5 Hun (N. Y.), 338. It would seem, however, that if the compromise be not so unreasonable as to warrant a belief that the attorney was imposed on, or that he did not exer- cise his judgment fairly, the court will not be inclined to disturb it. Holker v. Parker, 7 Cranch, 436 ; Pottei^ v. Parsons, 14 Iowa, 286. And a compromise acquiesced in for years by the principal will bind him forever. Mayer v. Foulkrod, 4 Wash. (C C.) 511. So it was held that an attorney who is a director in ATTOEXEYS. 437 a railroad company, and is openly employed to prosecute a suit against the road, may compromise the suit, and recover his fees for legal services in the case. Christie v. Sawyer^ 44 N. H. 298. An attorney has authority to submit the cause to arbitration (A55e V. Rood^ 6 McLean, 106 ; MarJcley v. Amos, 8 Rich. [S. C.J 468 ; Jeiikins v. Gillesjne, 18 Miss. 31) ; but he has no power to change the terms of submission entered into by the parties them- selves, especially where it does not appear that he was employed until after the submission, nor to what extent his authority went. Id. Agreements relating to the conduct of a suit and its proceed- ings during the trial, made by attorneys in the case in open court, and entered upon the record, are held to be binding upon the parties. McCann v. McLennan, 3 Neb. 25. So, an agree- ment of attorneys, in the court below, to abide by the opinion of a professional gentleman, whether restitution of the premises should be made to the plaintiff in error, from whom they had been taken by a habere facias, was enforced by the supreme court. Cahill v. Benn, 6 Binn. (Penn.) 99. But an agreement between counsel without authority from their client, that the dis- missal of an action shall be a bar to an action for malicious pros- ecution, is void and ineffectual to bind the client. Marhourg v. ^mith, 11 Kans. 554. Where the plaintiffs in a suit instructed their attorney to settle on certain terms, coupled with a certain condition, and afterward spoke to the defendants of the terms of settlement, without say- ing any thing about the condition, and the attorney never men- tioned the condition, but settled upon the other terms proposed, and the defendants believed that the attorney had authority to set- tle as he did, it was held that the plaintiffs were bound by the settlement. Peru Steel, etc., Co. v. Whipple File, etc., Co., 109 Mass. 464. The employment of an attorney at law to prosecute a suit for land of which the party alleges that he has been disseized, carries with such employment an authority to such attorney to com- promise the claim against the disseizor for mesne profits during the pendency of the suit, if he deem such action best for the interest of his client. Bonny v. Morrill, 57 Me. 368. § 5. To control proceedings, etc., of suits. The right of an attorney of record to manage and control an action cannot be questioned while he remains such, and no stipulation by his client as to the conduct or disposal of the action should be enter- tained by the court, unless it is signed or assented to by him. 438 ATTORNEYS. Commissioners v. Younger, 29 Cal. 147. Thus, the court will deny a motion to dismiss the action, founded on a written con- sent of the plaintiff personally, if the attorney for the plaintiff refuses his consent. McConnell v. Brown, 40 Ind. 384. So, a stipulation signed by the party in person, granting time to file a statement, will be disregarded. Mott v. Foster, 45 Cal. 72. The attorney has the exclusive management and control of the case, and his temporary absence from the county does not affect the rule. lb. And it is held that an attorney employed in anticipa- tion of a suit has as much power to bind his client before as after the suit has been commenced, and may bind him b}^ waiver of service. Hefferman v. Burt, 7 Iowa, 320 ; 1 Wait's Pr. 241, 242. An attorney may, by virtue of his general authority, i-elease from attachment the property of the debtor attached in the suit. Monson v. Hawley, 30 Conn. 51. And he may, in cases of special attachment, do all acts which the interests of his clients may require. Pierce v. Strlkland, 2 Story, 292. He likewise has power to use all reasonable and usual means to secure his client's claim, where the latter resides in another State. He may indemnify an officer for making a levy directed by him in good faith and upon reasonable grounds, and, if he indemnihed the officer by his own bond, he may recover from his client what he is obliged to pay thereon, Olar/c v. Randall, 9 Wis. 135. So he may, under his general authority, waive a verification {S'jnith V. Mullikin, 2 Minn. 319) ; verify, by affidavit, a petition in scire facias {Wright v. Parks, 10 Iowa, 342. See 1 Wait's Pr. 241, 242) ; permit a sheriff to renew an execution in the name of the client {Cheever v. Merrick, 2 N. H. 376) ; consent to an order of court referring the matters in dispute to accountants, to report thereon to the court, and such consent and his consent to a confirmation of the report, will bind his client. Stokely v. Pohinson, 34 Penn. St. 315 ; Woder v. Powell, 31 Gra. 1; Smith v. Bassard, 2 McCord's Ch. (S. C.) 406. He may also have briefs printed at the expense of his client ( Weisse v. N'ew Orleans, 10 La. Ann. 46) ; and he may place his client's name on the writ as indorser. Minor v. Smith, 6 N. H. 219 ; but see Alspaugh v. Jones, 64 N. C. 29; Chadioick v. Upton, 3 Pick. (Mass.) 443 ; Harmon v. Watson, 8 Me. 287. And if the attorney of a non- resident has in his possession the note sued on, he may swear to the complaint on behalf of his client. Bates v. Pike, 9 Wis. 224. So, an attorney retained to make a motion to change the ATTORNEYS. 439 plac« of trial, has authority to consent to a reference of the action. Tiffany v. Lord, 40 How. (N. Y.) 481. But an attorney cannot, under his general authority, consent to the entry of a judgment against his client, without his assent {People V. Lamborn, 2111. [1 Scam.] 123; see I>obbi7is v. Du2:)ree, 39 Ga. 394 ; Lyon v. Williams^ 42 id. 168) ; nor can he assign a judgment {Head v. Gertiais, Walk. [Mich.] 431 ; Roioland v. State, 58 Penn. St. 196) ; nor enter a retraxit {Lambert v. San- ford, 2 Blackf. [Ind.] 137) ; nor release a garnishee from his attachment {Quarles v. Porter, 12 Mo. 76) ; nor release the liabil- ity of a witness to pay a part of the costs {Bowne v. Hyde, 6 Barb. [N. Y.] 392 ; Springer v. Whipple, 17 Me. 351 ; Murray V. House, ]1 Johns. [N. Y.] 464) ; nor release an indorser of a note, in order to render him competent to testify in an action against the maker ( York Bank v. Appleton, 17 Me. 56 ; East Riv. Bank v. Kennedy, 9 Bosw. [N. Y.] 573) ; nor can he prosecute or defend a suit, to release a claim of his client on a third person, for the purpose of making such person a competent witness for his client {Shores v. Caswell, 13 Mete. [Mass.] 413) ; or admit service for his client of an original process, by which the court obtains jurisdiction for the first time of his person. To authorize 6uc!i admission, sjoecial authority must appear. Master son v. Le Claire, 4 Minn. 163 ; and see Hunt v. Brennan, 1 Hun (N. Y.), 213. An attorney of record, in an action in which an erroneous judgment is rendered against his client, has authorit}^, and it is his duty to sue out a writ of error to reverse it, without special instructions. Grosnenor v. Danforth, 16 Mass. 74. So, an attor- ney of record has authority to discontinue the suit. Gaillard V. Smart, 6 Cow. (N. Y.) 385 ; Barrett v. Third Aw7iue B. R. Co., 45 N. Y. (6 Hand) 628, 635. And it is held that an affidavit to obtain an order of seizure and sale, made by the attorne}^, in tlie absence of his principal, is sufficient. Simpson v. Lombas, 14 La. Ann. 103. So, the authority of an attorney to make affi- davit to hold to bail is sufficiently shown by the fact that suit was brought by him in the name of the plaintiffs, founded on such bail proceeding. Murphy v. Winter, 18 Ga. 690. Where the solicitor of a party, at whose suit land has been attached and its sale enjoined, consents to a sale thereof, the party purchasing acquires a valid title. Rice v. C Keefe, 6 Heisk. (Tenn.) 638. 440 ATTORNEYS. § 6. To make admissions, stipulations, etc. The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of causes in which they are retained, and are generally conclusive. Rogers v. Greenwood^ 14 Minn. 333 ; Smith V. Dixon, 3 Mete. (Ky.) 438. Thus, an attorney may bind his client by the admission of a fact for the purposes of a trial {Slarke v. Kenan, 11 Ala. 819 ; Farmers' BanTc v. Sprigg, 11 Md. 389) ; by a stipulation substantially settling the issues to be tried {Bingham v. Supervisors, 6 Minn. 136) ; by making proper agreements in regard to the suit {Farmers'^ Trust, etc.. Bank v. Ketchum, 4 McLean, 120) ; by consenting to an order of the court {Hart V. Spaulding, 1 Cal. 213) ; or by a waiver of all informal- ities and irregularities. Hanson v. Hoitt, 14 N. H. 56. And see Talbot V. McGee, 4 T. B. Monr. (Ky.) 377 ; PiJce v. Emerson, 5 N. H. 293. But a waiver of trial by jury in criminal cases, and an agreement for trial by the court is not binding on the defend- ant if it be made by his attorney without consulting him, although he was present in court. Brown v. State, 16 Ind. 496. So, although an attorney has all the authority necessary under his general retainer for the conduct and management of the action and for the collection of the debt, if any, his powers to act go no further, even if he thinks it for the benefit of his client. See, also, 1 Wait's Pr. 241, 242. He cannot, therefore, stipulate not to appeal or seek a new trial. People v. Mayor, etc., of iV. Y., 11 Abb. Pr. (N. Y.) 66. And agreements of counsel and attorneys in the progress of cases will not be enforced when they are not mutual, or where a substantial right of a party has been waived by his counsel without his consent. Howe v. Laio- rence, 2^ N. J. L. (2 Zabr.) 99. But to obtain relief against a stip- ulation on the mere ground of oversight or mistake of the attorney, it must have been one which ordinary care and atten- tion would not have guarded against. Rogers v. Greenwood, 14 Minn. 333. See Read v. French, 28 N. Y. (1 Tiff.) 285. The rule that stipulations made in open court by the attorney of a party, in respect to a cause therein pending, are, when author- ized and free from fraud, valid and binding (see McCann v. Mc- Lennan, 3 Neb. 25) ; applies to stipulations entered into by the attorney of a county, on behalf of the county. Lockwood v. Blackhawk County, 34 Iowa, 235. And such a stipulation can- not be repudiated by the successors in employment of the attor- ney who made the agreement while acting in behalf of the county. lb. ATTORNEYS. 441 § 7. To control jiidgmeut, execution, etc. The right of the defendant's attorney to confess judgment for his client is said to be a legitimate incident of his professional relation to the cause. Such confession, therefore, when made with the knowl- edge and at the instance of the client, is sufficient in law with- out any special authorization. Lyon v. Williams, 42 Ga. 168 ; Dobbins v. Dupree, 39 id. 394 ; and see Denton v. Noyes^ 6 Johns. (N. Y.) 296. After the rendition of a final judgment, the attorneys by whom the suit was presented and defended have no authority, resulting from their original employment, to con- sent to set it aside, or agree to a new trial. But a special power for that purpose may be conferred upon them, and any consent or agreement, given or made by an attorney duly authorized, in such case, will be effectuall}" binding upon his client. Holbert V. Montgomery, 5 Dana (Ky.), 11 ; see Glussman v. Merlcel, 3 Bosw. (N". Y.) 402. And the attorney of a judgment debtor is held to have implied autliority to take out execution on a judg- ment recovered by him for his client, and to procure a satisfac- tion thereof by a levy on lands, or otherwise, and to receive the money due on the execution. Union Bank v. Geary, 5 Pet. (U. S.) 98 ; Erwin v. Blake, 8 id. 18 ; see Hyams v. Michel^ 3 Rich. (S. C.) 303. So, he may direct the sheriff as to the time and manner of enforcing the execution (id.; Willard v. Goodrich, 31 Yt. 597 : Gorliam v. Gale, 7 Cow. [N. Y.] 739) ; and he may stay execution upon a judgment, in consideration of the promise of a third person to pay the debt ; and such promise is binding, although not made to the creditor, nor expressly assented to by him at the time. Silvis v. Ely, 3 Watts & S. (Penn.) 420. He may likewise discharge a defendant from arrest, on a ca. sa. issued by him ; and the officer is bound to receive and obey his instructions. Hopkins v. Willard, 14 Yt. 474 ; Scott V. Seller, 5 Watts (Penn.), 235. The acknowledgment of satisfaction, or a discharge of a judg- ment by an attorney, binds his client. Wyckoff v. Bergen, 1 N, J. L. (Coxe) 214. And the power of an attorney extends to opening a default which he has taken (whether properly or improperly), and vacating the judgment entirely, even though his client has instructed him to the contrary. Read v. FrencTi, 28 N. Y. (1 Tiff.) 285. But see Quinn v. Lloyd, 36 How. (X. Y.) 378 ; S. C, 5 Abb. (N. S.) 281 ; 7 Rob. 538, in which it is held that an attorney has no authority, without the knowledge and conaent of his client, to consent to vacate a judgment which is Vol. L — 56 442 ATTORNEYS. pending and secured on appeal. See Howe v. Lawrence^ 2 Zabr. {N. J.) 29. So, an attorney lias no authority to execute a satis- faction of judgment on belialf of his client without payment {Carstens v. Barnstorf, 11 Abb. [N. Y.] N. S. 442 ; Be Meis v. I>agron, 53 N. Y. 635) ; or by accepting less than the full amount of the judgment. Nolan v. Jackson, 16 111. 272; Vail V. Jackson, 15 Yt. 314 ; Wilson v. Wadleigli, 36 Me. 496. And even where the attorney holds the judgment by assignment, as security for debts due from the client, his satisfaction without paj'^ment is good only for the amount of his interest. Beers v. Hendrickson, 45 N. Y. (6 Hand) 665. An attorney who is counsel upon record for the plaintiif upon a judgment, cannot release from the lien of the judgment, the real estate of the defendant, either wholly or in part, without the consent of his client. Dollar Savings Bank v. Eohh, 4 Brewst. (Penn.) 106 ; Harrow v. Farrow, 7 B. Monr. (Ky.) 126. 'Nov has he any implied authority to release property levied on under execution {Banks v. Evans, 18 Miss, [10 S. & M.J 333) ; or to discharge the defendant from execution on a ca. sa. with- out satisfaction {Kellogg v. Gilbert, 10 Johns. 220 ; Simonton v. Barrell, 21 Wend. 362) ; or to stay an execution as to a principal debtor, so as to discharge a surety ( Union Bank v. Govan, 18 Miss. 333) ; or to release the sureties of his client's debtor {Givens v. Briscoe, 3 J. J. Marsh. [Ky.] 532) ; or to purchase real estate under his client's execution. Washington v. Johnson, 7 Humph. (Tenn.) 468. But where goods, taken on execution and in the hands of the sheriff, are of a perishable nature and liable to be stolen, the attorney of the attaching creditor has authority to bind his client by consenting to a sale of them, "on the terms that the money should not be paid over to either party, but retained by the sherift* and paid into court, to abide the order of the court" {Nelson v. Cook, 19 HI. 44(>); and it makes no difference in such a case, to whom the property really belongs. Id. Whether one who has been accustomed to take judgments for a party is authorized to act as his attorney in a given case — as in indorsing a writ and directing the sheriff's levy — is held to be a question of fact for the jury. Alsjyaugh v. Jones, 64 y. C. 29. An attorney who has obtained judgment for his client con- tinues to be his agent in the collection of the money {M Donald V. Todd, 1 Grant's Cas. [Penn.] 17) ; and payment to an attorney is payment to his client. Ely v. Harvey, 9 Bush (Ky.), 620. ATTORNEYS. 443 § 8. To prosecute auxiliary proceedings. An attorney is only authorized to appear and act for tlie party in the proceedings which constitute a part of the action. He has no more authority to appear for the party in other proceedings, not forming essen- tially a part of the action, particularly when they partake of a criminal character and involve his liberty, than he would have authority to appear to answer or plead guilty to an indictment against his client. Pitt v. Davison, 37 Barb. 97. See S. C, 37 IS". Y. (10 Tiff.) 235. But it is held that an attorney who prose- cutes a suit and obtains a judgment, ma}^, without any other authority than his retainer in the suit, demand from the debtor an assignment of his choses in action, and on refusal institute pro- ceedings under the New York non- imprisonment act. Steward v. Biddlecum, 2 N. Y. (2 Comst.) 108; ante, 221. So, an attorney who receives a note for collection is authorized, by his general retainer, to bring a second suit on the note, after being nonsuited in the first for want of due proof of the execution of the note. Scoit V. Elmendorf, 12 Johns. 315. And the attorney of the plaintilf has power, under his general authority, to give direc- tions as to the time and manner of enforcing the execution. Gorliam v. Oale, 7 Cow. 739. And see Erioin v. Blake, 8 Pet (U. S.) 18. The scire facias in foreign attachment, though technically a new action, is not strictly such, but is a further proceeding in consummation of that commenced by the original process ; and it seems to have been to a considerable extent, especially formerly, the understanding of the profession, that counsel retained in the original proceedings were also retained to appear in the scire facias. Day v. Welles, 31 Conn. 344. But counsel who undertake to defend a client upon a criminal accusation do not thereby agree to defend his bailors upon a scire facias on the recognizance. Headley v. Good, 24 Tex. 232. An attorney, employed to defend a suit removed from a jus- tice's court to the common pleas by certiorari, has no authority, by virtue of his retainer for that purpose, to bring a suit in the name of his client, against the obligors in the bond given upon obtaining the certiorari. Walradt v. Maynard, 3 Barb. 584. See Adams v. Fort Plain Bank, 36 N. Y. (9 Tiff.) 255, 264. § 9. Termination of authority. The authority of an attorney who is employed to prosecute or defend a suit, in the absence of special circumstances, continues, by virtue of his original re- tainer, until it is finally determined. The client may terminate the authority at his pleasure, or the attorney may do so aftei 444 ATTORNEYS. reasonable notice ; but in tlie absence of proof to the contrary, tlie presumption is that it continues until the litigation has ended. Loi^e v. Uall^ 3 Yerg. (Tenn.) 408 ; Langdon v. Castle- ton, 30 yt. 285 ; Lush v. Hastings, 1 Hill (N. Y.), 656 ; Mygatt V. Wilcox, 45 N. Y. (6 Hand) 306 ; S. C, 6 Am. Rep. 90 ; Bath- gate V. Haslcin, 59 N. Y. (14 Sick.) 533. The authority of an attor- ney may be determined by the death of his client (1 Wait's Pr. 242) ; and he cannot give nor receive notice of motions in the cause, until the successor, made a party in due form, has author- ized him to act thereon. Austin v. Monroe, 4 Lans. (N". Y.) 67 ; Putnam v. Van Buren, 7 How. (N. Y.) 31 ; Judson v. Love, 35 Cal. 463 ; Gleason v. Dodd, 4 Mete. (Mass.) 333 ; Risley v. Fel~ lows, 10 111. (5 Gilm.) 531 ; Campbell v. Klncaid, 3 T. B. Monr. (Ky.) 566. See Succession of Liles, 24 La. Ann. 490 ; Wilson v. 8mith, 22 Gratt. (Va.) 493. That the general authority of an attorney ceases with the entry of judgment for his client, see Lfinkley v . St. Anthony Falls, etc., Co., 9 Minn. 55; Richardson y. Talbot 2 Bibb (Ky.), 382; JacJc- son V. Bartlett, 8 Johns. 361. And it is held that an attorney, who tried a cause below, is not authorized to appear in the appel- late court without a new retainer. Comll v. Bhy, 24: 111. 57, and see Walradt v. Maynard, 3 Barb. 584. But it has been held in a number of cases that the general power of an attorney continues until the judgment is satisfied, unless previously terminated by some act of the client. See Flanders v. SheV' man, 18 Wis. 575; Nichols v. Dennis, R. M. Charlt. (Ga.) 188; Gray v. Wass, 1 Me. 257 ; and see Miller v. Miller, 37 How, (N. Y.) 1 ; ante, 441, § 7. ARTICLE III. DUTIES, LIABILITIES AND DISABILITIES OF ATTORNEYS. Section 1. In general. The relation existing between attorney and counsel and client is one of trust and confidence, placing the interests and rights of the client very much under the guard- ianship and control of the counsel, and is liable to abuses result- ing in serious and lasting injury to the client. The law regards the client as very much under the influence and control of the attorney and counsel, whiile the ordinary professional relation exists between them, and for that reason tlie conduct and acts of the latter are closely watched and scrutinized. See Goodenough ATTORNEYS. 44b V. Spencer, 2 N. Y. S. C. (T. & C.) 508; S. C, 46 How. 347 ; HaicJi V. Fogarty, 33 N. Y. Supr. Ct. 166. There is, however, no implied agreement in the relation of attorney and client, or in the employment of the former by the latter, that the former will guarantee the success of his proceedings in a suit, or the soundness of his opinions, or that they will be ultimately sus- tained by a court of last resort. Bowman v. Tallman, 27 How. (N. Y.) 212 ; S. C. affirmed, 40 id. 1 . It is only required of him that he act honestly and to the best of his ability. Lynch v. Commomoealth, 16 Serg. & R. (Penn.) 368. § 2. Skill and fidelity. AVhen a person adopts the profession of the law, and assumes to exercise its duties in behalf of another, for hire and reward, he must be held to employ in his undertak- ing a reasonable degree of care and skill. 1 Wait's Pr. 242, 243. And if injury results to the client, from the want of such a degree of reasonable care and skill, the attornej^ must respond in damages, to the extent of the injury sustained. See Pidgeon v. Williams, 21 Gratt. (Ya.) 251 ; Harter v. Morris, 18 Ohio St. 492 ; Watson V. Muirhead, 57 Penn. St. 161 ; Walpole v. Carlisle, 32 Ind. 415. But it must not be understood that an attorney is liable for every mistake that may occur in practice, and held responsible for the damages that may result. If he acts with a proper degree of attention, with reasonable care, and to the best of his skill and knowledge, he will not be held responsible. Stevens V. Walker, 55 111. 151 ; Gamhert v. Hart, 44 Cal. 542 ; Bowman V. Tallman, 40 How. (N. Y.) 1 ; 1 Wait's Pr. 242, 243. He must, of course, have sufficient learning to be able to determine, with reasonable accuracy, upon the appropriate remedies for enforc- ing or securing the rights of his client ; and the degree of skill required must be sufficient to enable him to conduct the pro- ceedings appropriate to such remedies. If he fails in any of these respects, he may, and sometimes does, not only forfeit all claims for compensation, but also renders himself liable to his client for any damage which he may thereby sustain. Id. ; HatcJi V. Fogerty, 33 N. Y. Supr. Ct. 166; see Ex parte Oibberson, 4 Cranch (C. C), 503 ; Weimer v. Sloane, 6 McLean, 259. It has been held, however, that the skill required has reference to the character of the business which the attorney undertakes to do. Wilson v. Russ, 19 Me. 421 ; Cox v. Sullivan, 7 Ga. 144; 0' Barr V. Alexander, 37 id. 195. § 3. Attorney as bail. Attorneys were not disqualified to be bail by the common law. But it is a general rule of the court 446 ATTORNEYS. of King's bench, adopted at an early period, that no attorney of that, or any other court, shall be bail, in any action depend- ing in that court. 1 Tidd's Pr. 230. The same rule prevails, also, in the court of common bench {Calcish v. Ross, 1 Taunt. 164) ; and it has been adopted, generally, in the United States. See Mills v. Clarke, 4 Bosw. (N. Y.) 632 ; Coster v. Watson, 15 Johns. 535 ; Love v. SJieffelin, 7 Fla. 40 ; Massie v. Mann, 17 Iowa, 131 ; GilbanTc v. 8tevenson, 30 Wis. 155. The rule is said to be founded upon reasons of convenience, and to relieve attorneys from importunities of their clients, and clients of exorbitant exactions of their attorney. And it has been held that bail by an attorney cannot be treated as a nullity, but is ground of objection only. Banter v. Levy, 1 Chit. 713 ; King V. Sheriff of Surrey, 2 East, 181. And that an attorney is liable on his recognizance when it is entered into, notwithstanding he is prohibited from becoming bail. Llarper v. TaJiomden, 1 Chit. 714, note. In New York the rule as to bail in courts of law was not formerly adopted in the court of chancery, in respect to security required by statute, and it was held that the solicitor might be surety upon a bond for costs. MickeWiwaite v. Rhodes, 4 Sandf. Ch. (N. Y.) 434. And in a recent case in that State, il; was held that the disability of attorneys was limited to bail for the appearance of the party arrested. Ryckman v. Coleman, 13 Abb. Pr. 398. So, under the statute regulating security for costs, the attorney for a non-resident plaintiff might have become surety for his client. Walker v. Llolmes, 22 Wend. 614. Where an attorney, not of record in the action, but only an attorney at law, signed a bond as security for costs for a non-resident plain- tiff, it could not be enforced against him by the court in a sum- mary manner. The obligation could be enforced in no other manner than if it was the obligation of a person not an attorney or officer of the court. Willmont v. Meserole, 48 How. (N- Y.) 430; 16 Abb. (N. S.) 308. The New York Rules of Court, No. 8, provides : "In no case shall an attorney be surety on any under- taking, or bond required by law in any action or proceeding, or he ball in any ciml or criminal case or proceeding.'''' In Indiana it has been held that an attorney may be surety for his client. Abbott v, Zeigler, 9 Ind. 511. § 4. Attorney as witness. It is sometimes indispensable that an attorney, to prevent injustice, should give evidence for his client. It has, therefore, been held in numerous cases, that the ATTORNEYS. A4.1 attorney in a cause is not, because such, disqualified from being a witness {CoUett v. Hudson, 22 L. J. Q. B. 11 ; S. C, 1 Ell. & B. 11 ; Chartiers and Robinson Turnpike Co. v. McNamara, 72 Penn. St. 278 ; S. C, 13 Am. Rep. 673; Heed v. Colcock, 1 Nott & McCord [S. C], 592 ; Hall v. Renfro, 3 Mete. [Ky.] 51 ; Rob- inson V. Dauchy, 3 Barb. [X. Y.] 20 ; Potter v. Ware, 1 Cusli. [Mass.] 519) ; even though his judgment fee depends on his suc- cess {Newman v. Bradley^ 1 Dall. [Penn.l 241), and though he expects a larger fee if his client succeeds. Boulder y. Hebel, 17 Serg. & R. (Penn.) 32 ; Miles v. 0' Hara, 1 id. 32 ; M'Geltee v. Hansen, 13 Ala. 17 ; Slocum v. Neioby, 1 Murph. (N. C.) 423. But the practice of an attorney testifying, or making affidavit for his client, is considered objectionable (see Spencer v. Kin- nard, 12 Tex. 180 ; Stratton v. Henderson, 26 111. 68), and should be discountenanced, as far as ^^ossible, by the courts and coun- sel. State V. Woodside, 9 Ired. (N. C.) 496; Frear y. Br inker ^ 8 Penn. St. 520. In Little V. McKeon, 1 Sandf. 607, the court said : 'As to the effect of this practice upon the character of the bar, we think the evil will work its own cure. Attorneys, as well as coun- selors, of standing and character will never, except in extreme cases, present themselves before a jury as witnesses in their own causes on litigated questions, and in such cases only of some unforeseen necessity. Those gentlemen of the bar who habitually suffer themselves to be used as witnesses for their clients, soon become marked both by their associates and the courts, and forfeit in character more than will ever be compensated to them by success in such clients' controversies." § 5. Attorney cannot act in other capacity. It is held that a solicitor in a case cannot act as a special master to execute the decree. White v. Hoffaker, 27 111. 349. And, as a general rule, a receiver in an action cannot appoint, as his attorney, the attor- ney of either party. Branch v. Harrington, 49 How. (N. Y.) 196 ; Warren v. Sprague, 4 Edw. Ch. (N. Y.) 416. So, a person deputized by a justice of the peace to serve a summons issued by such justice, is to be deemed a constable quoad the action, and is prohibited from appearing as attorney for the plaintiff, upon the trial. Kniglit v. Odell, 18 How. (X. Y.) 279 ; Wilkin son V. Vorce, 41 Barb. (N. Y.) 370. See Eldredge v. McNulty, 46 How. 440 ; Ingraham v. Leland, 19 Vt. 304. And a person who is administrator of an estate cannot act as an attorne}' in the prosecution of claims against the same estate. Spinks v. 448 ATTORNEYS. Dams^ 32 Miss. 152. But one who lias acted as attorney at law of a party in obtaining a judgment, may act as commissioner in taking a deposition for his client, to be used in a claim suit growing out of the judgment ; provided he is not the attorney in the claim suit, and does not appear to have any interest in the event of the suit. Taylor v. Branch Banlc, 14 Ala. 633. § 6. Cannot act on opposite sides. An attorney owes to his client fidelity, secrecy, diligence arid skill ; and he cannot, there- fore, serve professionally, both parties to a controvei-sy, nor take a reward from the other side. 1 Wait's Pr. 243 ; Tardly v. Ellill, Hob. 8 ay King v. 8hore, Cro. Eliz. 914 ; Ilerrick v. Catley, 1 Daly (N. Y.), 512 ; S. C, 30 How. 208 ; Sherwood v. Saratoga, etc., B. B. Co., 15 Barb. (N. Y.) 650 ; see ante, 245 to 249. So, an attor- ney is never allowed to change sides in the same cause, though at different trials. Valentine v. Stewart, 15 Cal. 387 ; Gaulden V. State, 11 Ga. 47 ; Commonwealth v. Gibbs, 4 G-ray (Mass.), 146 ; Brice v. Grand Bapids, etc., B. B. Co., 18 Ind. 137. But where an attorney, in the course of other business, has obtained a knowledge of matters connected with the suit in question, he will not generally be prevented from acting against the party through whose business he obtained such knowledge. Id. xlnd connsel may act as such at the same time for both parties to a transaction, and the fact that a contract is drawn by and under the advice of one, who at the time is counsel for one of the par- ties, when such fact is known to the other party, does not, in the absence of evidence of fraud or unfairness, invalidate or affect the contract. Joslin v. Cowee, 56 N. Y. (11 Sick.) 626 ; and see Siegel v. Gould, 7 Lans. 177 ; ante, 245 to 249. § 7. LiaMlity to third persons. One who suffers an injury by an unauthorized appearance of an attorney for him, has a remedy by action against the attorney. Smith v. Bowditch, 7 Pick. (Mass.) 138 ; Coit v. Sheldon, 1 Tyler (Vt.), 304 ; Field v. Gibbs, Pet. (C. C.) 155. So, an attorney and his client have been both held liable, for an execution illegally issued by the former. Newberry v. Lee, 3 Hill (N. Y.), 523 ; see Armstrong v. Dubois, 1 Abb. Ct. App. (N. Y.) 8 ; S. C, 4 Keyes, 291 ; Foster v. Wiley, 27 Mich. 244 ; S. C, 35 Am. Rep. 185. But an attorney may so act under his general employment, to enforce a legal claim, as to render himself alone liable for a malicious prosecution or arrest. Burnap v. Marsh, 13 111. 535 ; and see Hardy v. Keeler, 56 id. 152. He does not, however, incur any civil liability for ordering a levy on property, if he acts in good faith and on reasonable ATTORNEYS. 449 cause. Hunt v. Printup, 28 Ga. 297 ; see Wigg v. Simonton, 12 Rich. (S. C.) 583. And he is not chargeable with a trespass of the constable who has chai-ge of the execution. Seaton v. Cord- ray, Wright (Ohio), 102. Nor is he responsible for conveying to an officer, his client's directions, for seizing goods on an execu tion. Ford v. Willlam.s, 13 N. Y. (3 Kern.) 577. An attorney who, by his representations and promised indorse 'ment, induces a party to take an assignment of a debt placed in his hands for collection, by way of payment of a note against his client, thereby becomes personally responsible to the assignee for its collection. Hazelrigg v. Brenton, 2 Duv. (Ky.) 525. And where an attorney procures money to be advanced by a third person, in the prosecution of an action, without attempting to pledge the credit of his client therefor, the attorney alone is responsible to such third person. Bell v. Mason, 10 Yt. 509. So, a firm of attorneys, conducting collections in various parts of the country, who give receipts "for collection," are liable for collections made by their agents, unless they expressly limit their liability. Bradstreet v. Emrson, T2 Penn. St. 124. But, where an attorney, without fraud, collects money as attorney, and pays it over to his client, although th^ on« paying it shows he is entitled to have it refunded, an order will not be granted requiring the attorney personally to refund it. The fact of pay- ment over should, however, be clearly shown in such a c.'ise. Wllmerdings v. Fowler, 55 N. Y. (10 Sick.) 641 ; S. C, 15 Abb. (N. S.) 86. As to liabilitj^ for words spoken on a trial, see 1 Wait's Pr. 245. § 8. Liability for costs, fees, etc. In some cases an attorney is held liable for costs. Thus, in South Carolina, an attorney is held liable for sheriflfs' and clerks' costs, where the plaintiff in the suit lives out of the State. Benson v. Wliitfield, 4 McCord (S. C), 149. So, in Georgia, an attorney instituting a suit for a plaintiff out of the State, is liable, if the suit is dismissed or the plaintiff cast, for all costs. CarmicJiael v. Pendleton, Dudley (Ga.), 173. And, in New York, an attorney is liable for costs to the amount of $100, when he proceeds in a suit after his client has removed out of the State, whether the costs accrued before or after such removal. Wright v. Black, 2 \Yend. 258 ; and see Moir V. Brown, 9 How. (N. Y.) 270 ; Boyce v. Bates, 8 id. 495 ; see 3 Wait' s Pr. 538, .549, 550. So, where one is made lessor in ejectment, without his authority, the plaintiflT s attorney, and not he, is liable for the costs. People v. Bradt, 6 Johns. 818. Vol. I. — 57 450 ATTOENEYS. It has been lield, tliat an attorney avIio indorses his client' 8 writ, thus, "A B, by C D, his attorney," is personally liable for costs, if the plaintiff avoid, or is unable to pay them. Chap- man v. PliilUps, 8 Pick. (Mass.) 25; Hoio v. Oodman, 4 Me. 79 ; but see contra, Hackness v. Farley, 11 id. 491 ; Minor v. SmltJt, 6 N. H. 219. And an agreement between an attorney and his client, that the former shall pay the costs of an action he has brought for his client, if unsuccessful, is illegal and void, and cannot be enforced by the client. Low v. Hutcliinson, 37 Me. 196. Courts have power to order costs to be paid by counsel, in cases of gross misconduct or gross negligence, as a branch of the general power to punish for contempt. Brown v. Brown, 4 Ind. 627 ; Kane v. Van Yrariken, 5 Paige (N. Y.), 62 ; ExpaHe RohUns, 63 N. C. 309. It is the well-settled general rule, that the attorney of record cannot be held liable for the fees of the officers of the court, unless upon proof of his express promise to pay them. See Wires v. Briggs, 5 Yt. 101 ; Preston v. Preston, 1 Dougl. (Mich). 292 ; Towle v. Hatch, 43 N". H. 270 ; Pobbins v. Bridge, 3 Mees. & W. 114; Morse v. Porter, 13 Serg. & R. (Penn.) 100. But the rule is otherwise in ISTew York, where an attorney has been I'epeatedly held liable to the sheriff for fees on process delivered to him for execution. BirTcbeck v. Stafford, 23 How. (N. Y.) 236; S. C, 14 Abb. 285; Adams v. Hopkins, 5 Johns. 2.52 ; Campbell V. Cothran, 5Q N. Y. (11 Sick.) 279 ; and see Trustees of Water- town V. Coioen, 5 Paige, 510 ; Judson v. Gray, 11 'N. Y. (1 Kern.) 408. So. an attorney is held personally liable to the prothono- tary for fees in suits wherein he was either plaintiff or plaintiff in interest, as also for fees received by him, as attorney or client, due to the prothonotary. Cone v. Donaldson, 47 Penn. St. 363. An attorney is not liable for the fees of a witness summoned to testify for his client, unless upon a special promise to pay them. Sergeant v. Pettibone, 1 Aik. (Vt.) 355. ARTICLE IV. RIGHTS AND PRIVILEGES OF ATTORJSTEYS. Section 1. In general. Attorneys and counsel, being officers of the court, are entitled to its protection in all cases where they act to the best of their skill and knowledge, and conduct tJi^^m- selves with honor and integrity. So, there are various privileges and exemptions which attach to attorneys as officers of the courts ATTORNEYS. 451 in which they are admitted, and there are others which arise in the course of their professional employment, a.l of which will be considered under appropriate heads. As it regards their privileges generally, it has been said there is nothing that coun- sel may not do in the prosecution and defense of the rights of their clients, provided the manner of doing it is courteous and respectful. Wright v. State, 13 Ga. 383. § 2. To compensation. It is the doctrine of the English com- mon law that a counselor at law cannot maintain an action for his fees. 2 Broom & Had. 28 [Wait's ed.] ; 3 Bl. Com. 28. This doc- trine was early recognized, to some extent, in this country (see 2Iooney v. Lloyd^ 5 Serg. & R. [Penn.] 411) ; and still prevails in the State of JS'ew Jersey. Seeley v. Crane, 3 Green (N. J.), 35 ; Shaver v. JVorris, Penn. (N. J.) 63. In N'ew York, however, counsel fees have always been recoverable on a quantum meruit {Steoens v. Adams, 23 Wend. 57 ; S. C, 26 id. 451) ; and gene- rally, in the United States, the fees of an attorney or counselor now constitute a legal demand for which an action will lie. And while, as between party and part}^ in a cause, the statutory fee bill fixes the amount of costs to be recovered, as between attor- iKjy or counselor and client, the former may recover whatever his services are reasonably w^orth, whether performed in or out of court. See Balshaugh v. Frazer, 19 Penn. St. 95 ; Yilas v. Downer, 21 Yt. 419 ; In re Paschal, 10 Wall. (U. S.) 483. See 1 Wait's Pr. 245, 246. In other words, the compensation of the attorney is left to be governed by the express or implied agree- ment between him and his client. Stow v. Hamlin, 11 How. (X. Y.) 452 ; Porter v. Parmly, 7 Jones & Sp. (N. Y.) 219. And implied agreements between attorney and client stand upon the same footing with the like agreements between other parties. lb. ; Garfield v. Kirli, 65 Barb. (N. Y.) 464. See Webh v. Browning, 14 Mo. 353 ; Smith v. Bams, 45 if. H. 566; Quint v. Ophir, etc.. Mining Co., 4 Nev. 304; Cunning v. Kemp, 22 Wis. 509 ; Boy- Ian V. Holt, 45 Miss. 277. The attorney must jDrove the services rendered and their value. Opinions of attorneys may be re- ceived {Breioer v. Coolc, 11 La. Ann, 637) ; and the value of the property involved in the suit may be taken into view. Garfield V. Kirlc, 65 Barb. (N. Y.) 464 ; Harlandv. Lilienthal, 53 N. Y. (8 Sick.) 438. So, the attorney may show the amount and char acter of his professional business, as tending to show his profes sional standing, and to sustain the propriety of his charges. Phelps V. Hunt, 40 Conn. 97. An attorney vho makes a con« 452 ATTORNEYS. tract with his client for a stipulated amount as his fee for attend- ing to a litigation, cannot afterward recover on a quantum •meruit, but can only claim such sum as he is entitled to under the contract with the client. Walker v. Bietry, 24 La. Ann. 349 ; Bull V. St. Johns, 39 Ga. 78. § 3. Special agreement for pay. Although an attorney is per- mitted to enter into a. special agreement with his client as to com- pensation, yet whenever such an agreement greatly inures to the advantage and benefit of the attorney, the court will scru- tinize it with great care. In such cases, all presumptions are in favor of the client and against the propriety of the transaction, and the burden of proof is upon the attorney to show, by extrin- sic evidence, that all was fair and just, and that his client acted understandingly and witli a full knowledge of all the facts con- nected with the transaction, or the subject-matter. Ford v. Har- rington, 16 N. Y. (2 Smith) 285 ; Emns v. Ellis, 5 Denio, 640 ; Haigld v. Moore, 5 Jones & Sp. (N. Y.) 161 ; Mason v. Ring, 3 Abb. Ct. App. (N. Y.) 210; McMahan v. Smith, 6 Heisk. (Tenn.) 167. But evidence on the part of a defendant that the plaintitf has agreed to give a portion of the recovery to his attorney is incompetent. Such an agreement is lawful, and does not dis- credit, as a witness, the party making it. Sussdorff v. Schmidt, 55 N. Y. (10 Sick.) 319. So, an agreement by an attorney to commence and conduct and pay all the expenses of a suit, and give the plaintiff a certain share of the proceeds, has been sus- tained. Fogerly v. Jordan, 2 Robt. (IST. Y.) 319. See Allard v Lamirande, 29 Wis. 502 ; Stearns v. Felker, 28 id. 594. Aa has likewise an agreement that the attorney shall be first paid out of the funds recovered {Christie v. Sawyer, 44 N. H. 298) ; and that the costs to be recovered in the suit shall belong to the attorney {Ely v. Cooke, 28 N. Y. [1 Tiff.] 365) ; and that tlie attorney shall have a percentage on the amount recovered in the suit. Ryan v. Martin, 18 Wis. 672 ; Benedict v. Stuart, 23 Barb. (N. Y.') 420 ; White v. Roberts, 4 Dana (Ky.), 172 ; Tapley V. Coffin, 12 Gray (Mass.), 420. But see Elliott y. McClelland, 17 Ala. 206 ; Boardman v. Thompson, 25 Iowa, 487 ; Judah v Trustees, 16 Ind. 56. So, a parol assignment of a cause by a plaintiff to his attorney, in consideration of the attorney's former services and advancements, has been held valid. Jordan V. Oillen, 44 N. H. 424. But an agreement between attorney and client, after the former has been employed, by which the original contract is varied, and greater compensation secured to ATTORNEYS. 453 tlie attorney, has been lield void. Lecatt v. Sallee, 3 Port. (Ala.) 115. And so of an agreement by a solicitor, to defend a suit concerning land, in consideration of being allowed tlie rents and profits of tlie land, pending the suit. Merritt v. Lambert. 10 Paige (N. Y.), 352. It is not, however, against public policy for a party claiming title to land to enter into a contract with au attorney, b}- which it is agreed that the attorney shall commence legal proceedings for its recovery and pay the costs, and in con- sideration of his services and expenditure of money, have an undivided one-half of all the land recovered, and the undivided One-half of all that ma}^ be recovered or obtained hj reason of any compromise or settlement of the matter, and that the party claiming the land shall not make any settlement or compromise without the consent of the attorney. Such contract constitutes the attorney the equitable owner of the undivided one-half of whatever shall result from the, prosecution or compromise of the suit instituted by him to recover the land. Hoffman v. Vallejo^ 45 Cal. 564. It is part of the general duties of members of the bar to act as counsel for persons accused of crime and destitute of means, upon appointment by the court, when not inconsistent with their ■ iucies to others, and for compensation they must trust to the possible future ability of the parties. Roioe v. Yuba County^ 17 Cal. 61 ; Peojyle v. Supervisors of Albany, 28 How. (N. Y.) 22 ; Wright Y. State, 3 Heisk. (Tenn.) 256 ; Elam\. Jolmson, 48 Ga. 348. They have no legal claim to be paid for their services in such cases out of the county funds. lb. But see Webb v. Baird, 6 Ind. 13 ; Samuels v. Dubuque, 13 Iowa, 536. An attorney is not entitled to recover for services, which, through his own neglect, proved to be of no value to his client. Nixon V. Phelps, 29 Vt. 198 ; Bowman v. Tallman. 40 How. (N. Y.) 1. Nor is he entitled to compensation for services, when he detains money collected for an unreasonable time, or until he ia sued for it. Breclin v. Eingland, 4 Watts (Penn. ), 420 ; WilU V. Kane, 2 G-rant's Gas. (Penn.) 60. So, an attorney or counsel cannot recover for such advice to a client as would enable, if not induce, him to elude the process of the law, nor for advice to the officer serving the process calculated to induce him to violate liia duty. Arrington v. Sneed, 18 Tex. 135 ; Goodenough v. Spencer, 46 How. (N. Y.) 347 ; S. C., 2 N. Y. S. C. (T. & C.) 508. § 4. Lien for costs. As a general rule, an attorney at law, who is employed to prosecute a demand, has a lien upon any judg- 454 ATTORNEYS. ment or recovery obtained througli liis services, for the fees oi compensation due liim therefor. Pindar v. Morris, 3 Cai. (N. Y.) 165 ; Andrews v. Morse, 12 Conn. 444 ; Walker v. Sargeant 14 Yt. 247 ; 1 Wait's Pr. 246, 247. And this lien will be protected by the courts against any unfair dealings by the client with the right of action, or the judgment. lb.; Bradt v. Koon, 4 Cow. 416 ; Carter \. Dams, 8 Fla. 183 ; Boyer v. ClarTc, 3 Neb. 161 ; McKenzie v. War dwell, 61 Me. 136 ; Howland v. Taylor, 6 Hun, 237. The lien does not arise, however, until judgment, and before j udgment the parties may settle the suit and give releases, without reference to any claims of attorneys for services previously rendered. Foot V. Tewkshury, 2 Yt. 97 ; Potter v. Mayo, 3 Me. 34 ; Getcliell v. Clark, 5 Mass. 309 ; Simmons v. Almy, 103 id. 33. An attorney has a lien upon his client's papers in his possession, obtained in the course of his professional employment. St. John v. Diefen- dorf, 12 Wend. 261 ; Ez parte Russell, 1 How. (N. Y.) 149. Thus, he has a lien upon a note or order deposited with him for collection or suit {Howard v. Osceola, 22 Wis. 453 ; Stewart v. Mowers, 44: Miss. 513 ; Dennett v. Cutis, 11 N. H. 163) ; or upon a bond or mortgage in his hands for foreclosure {Bowling Green Savings Bank v. Todd, 52 N. Y. [7 Sick.] 489) ; but he has no lieu upon papers of his client which came into hi^ hand« other- wise than in the course of his professional employment. Henry V. Fowler, 3 Daly (N. Y.), 199. And one member of a firm of attorneys has no lien for an individual demand upon papers received by his firm. Bowling Green Savings Bank v. Tod.d 64 Barb. 146 ; S. C, 52 N. Y. (7 Sick.) 489. In some of the States, as in Maine and Massachusetts, an attor- ney has a lien only by statute. See Potter v. Mayo, 3 Me. 34 ; Baker v. Cook, 11 Mass. 236 ; see Wood v. Anders, 5 Bush (Ky.), 601. So, in many respects, the law relative to the attorney's lien will be found to vary in the different States. In Illinois, it has been held, tliat an attorney's lien for his compensation upon a judgment which he has recovered, should be limited to the specific fees or disbursements taxable by law as costs, and in- cluded in the judgment. And that it does not extend to such sum as may be due by contract with his client as a general com- pensation for services. Forsyth v. Beveridge, 52 111. 268 ; and see Hum/phrey v. Browning, 46 111. 476 ; Wells v. Hatch, 43 N. H. 246 ; Mansfield v. Borland, 2 Cal. 507. In a more recent case in New York, it was decided that an attorney has a lien upon a judgment recovered by him for any sum agreed upon ATTORNEYS. 455 between him and his client as a compensation for his services, as well as for the costs in the judgment, and, to the amount of such lien, he is to be deemed an equitable assignee. Marshall v. Meech, 51 N. Y. (6 Sick.) 140 ; S. C, 10 Am. Rep, 572 ; see Smitli V. Young, 62 111. 210. So, when the recovery is solely for ?ostSj the judgment itself is legal notice of the lien, and this lien can- not be discharged hj payment to any one but the attorney. Lesher v. Roesner, 3 Hun (KY.), 217 ; S. C, 5 N. Y. S. C. (T. & C.) 674. But when the judgment is for damages and costs it is not notice of the lien, even for the taxed costs, and such lien can be protected only by notice to the judgment debtor. Marshall v. Meech, 51 K Y. (6 Sick.) 140 ; S. C, 10 Am. Rep. 572 ; see Pleas- ants v. Kortreclif, 5 Heisk. (Tenn.) 694 ; Neil v. Staten, 7 id. 290. The retaining of an attorney to prosecute an action and its commencement by him, gives him no lien upon what may, in the event of a trial, be recovered therein. Pulver v. Harris, 52 N. Y. (7 Sick.) 73 ; see Casey v. March, 30 Tex. 180. Possession, or the right of possession, by a person asserting a lien, is neces- sary to the existence of such lien. Si. John y. Diefendorf, 12 Wend. 261 ; Stewart v. Floioers, 44 Miss. 513. In Pennsylvania, an attorney has no lien for his professional compensation on the papers of his client in his hands, or on money collected by him for his fees. Walton v. Dicker son, 7 Penn. St. 376. As to lien for costs, see 1 Wait's Pr. 246, 247. § 5. Privileges generally. Attorneys and counselors are sup- posed to be always present, during term, attending the court on behalf of their clients. Walker v. Ruslibury, 9 Price, 27 : Peo- ple V. JSfenins, 1 Hill (N. Y.), 154 ; and their official duties in court, therefore, are legally deemed to exempt them from being called on to fill many ordinary offices. Thus, in Pennsylvania, an attorney is privileged from serving as an overseer of the poor, supervisor of the roads, constable, and in similar offices. Respublicav. Fisher, 1 Yeates (Penn.), 350. But he is aot privil- eged from serving in the militia. Id. ; Matter of Bliss, 9 Johns. (X. Y.) 347. It is an ancient privilege of attorneys to be exempt from arrest on mesne process, or being held to bail (see EmmeV s Case, 2 Cai. [N. Y.] 387; Gihhs v. Loomis, 10 Johns. 463; Common- wealth V. Monald, 4 Call [Ya.], 97) ; because attorneys, being obliged to attend officially on the courts, are presumed to be always amenable. lb. See Ogden v. Hughes, 5 INT. J. L. (3 South.) 718 ; Sperry v. Willard, 1 Wend. 32. So, an attorney 456 ATTORNEYS. has always been regarded as privileged from arrest, wliile actu ally employed in tlie conduct or management of legal proceed- ings, and tills privilege continues while the attorney is proceed- ing from his own private residence to his office for papers, etc., and from thence to court. See 1 Wait's Pr. 597 ; Secor v. Belly IS Johns. 52 ; Corey v. Russell^ 4 Wend. 204 ; BoJianan v. Peterson, 9 id. 503 ; Humphrey v. Gumming, 5 id. 90 ; Ric'ketts V. Gurney, 1 Chitty, 682. But if an attorney ceases to prac- tice for a year, not in consequence of any temporary absence or avocation, but by betaking himself to a profession or business incompatible with his practice as an attorney, his privilege ceases. BtooJcs v. Patterson, Col. Cas. 133 ; S. C, 2 Johns. Cas. 102. See Colt V. Gregory, 3 Cow. 22. He cannot, however, by plea, waive or destroy his privilege, for it is not allowed for his own sake, but for the sake of the court and the suitors in it. Scott v. Van Alstyne, 9 Johns, 216. Application must be made to the court. lb.; see Leal v. Wigram, 12 id. 88 ; Cole v. McLellan, 4 Hill (N. Y.), 59. x^n attorney or counselor has a right, at all reason- able times, to enter a prison for the purpose of advising with his client. Ex parte McClelan, 1 Wheel. Cr, Cas. (N. Y.) 303. As to privileged communications, see post, art. 9. ARTICLE V. ACTION" BY ATTOKNEY AGAIifST CLIESTT. Section 1. In general. The right of an attorney or counselor at law to maintain an action to recover compensation due him for professional services, has already been considered in a preceding section. See a?i,te, art. 4, § 2. But he cannot recover of his client for professional services, without proving a retainer ; and even proof of the actual performance of the services is not suffi- cient, where there is no proof of a knowledge or a recognition of the services by the client. Burgliart v. Gardner, 3 Barb. (N. Y.) 64. And see HotcTikiss v. LeRoy, 9 Johns. 142 ; Cooper v Hamilton. 52 111. 119. § 2. Retainer. The law warrants a party in giving faith and contidence, to one who, by law, is authorized to hold himself out as a public officer, clothed with power to represent others in the courts. Hence, where an attorney appears in an action for any party, the general rule is, that a retainer will be presumed, and the adverse party, having no notice or ground of suspicion, may act on that presumption. Hamilton v. Wright, 37 N. Y. (10 ATTORNEYS. 457 Tiff.) 502; Turner y. Caruthers, 17Cal. 43] ; People v. Mariposa Co., 39 id. 683 ; Hains v. GaTbraith, 43 111. 309 ; Ferguson v. Crawford, 7 Hun, 25. So, in case of a corporation, as well as of an individual, appearance by an attorney, legally admitted to practice, is received as evidence of his authority to represent the party in court. Oshorn v. Baiik of United States, 9 Wheat. 738 ; Mancliester Bank v. Fellows, 28 N. H. 302 ; Sclirondenheck V. Phoenix Fire Ins. Co., 15 Wis. 632. And it is held that the authority to appear cannot be questioned in the court of a23peal, If not objected to in the court below, lb, ; Kohle v. Bank of Kentucky, 3 A. K. Marsh. (Ky.) 263. § 3. Proof of retainer. Although the license of an attorney \^ prima facie evidence of his authority to appear for any per- son whom he professes to represent, he may, nevertheless, be compelled by the court to show his authority to appear for such party, at the instance of either party to the suit. West v. Hous- ton, 3Harr. (Del.) 15; Boutlier ^ . Johnson, 2 Browne (Penn.), 17 ; Commissioners v. Purdy, 36 Barb. (X. Y.) 266 ; Clark v. Holli- day, 9 Mo. 711 ; 1 Wait's Pr. 563, 564. In order to invoke the exercise of this power of the court, the opposite party must state facts showing or tending to show that the attorney does not possess the authority which he assumes {Howard v. Smith, 1 Jones & Sp. [N. Y.] 124 ; TJwmas v. Steele, 22 Wis. 207 ; People v.. Mariposa Co., 39 Cal. 683) ; otherwise the presumption aris- ing from his license and appearance will prevail. Id. ; see M' Alexander v. Wright, 8 T. B. Monr. (Ky.) 194 ; Hellman v. Mc W7ie7inie, 3 Rich. (S. C.) 364. The power of an attorney of record to act in the suit cannot be questioned on a collateral issue between third persons. Dillard v. Crocker, Spears' Ch. (S. C.) 20 ; Ferguson v. Craioford, 7 Hun, 25. Nor can objection to the right of counsel to appear in defense of an action be made after the term at which the appearance is first made. Knowlton V. Plantation No. 4, 14 Me. 20. A mere parol retainer is sufiicient to authorize an attorney to commence a suit. Manchester Bank v. Fellows, 28 N. H. 302. And as between the plaintiff and the defendant, an attorney is a competent witness to prove his authority to appear in the suit. Caniff V. Myres, 15 Johns. 246 ; Foley v. Smith, 12 N. J. L. (7 Halst.) 140; Bridgton v. Bennett, 23 Me. 420. So, the authority of the attorney to appear may be inferred from cir- cumstances, as that he was the general attorney of the defendant, and the defendant, though knowing of it, did not object to hia Vol. I. — 58 458 ATTORNEYS. appearance Bogardus v. Livingston, 2 Hilt. (N. Y.) 236. And the admission that an attornej^ was retained by the person for whose use an action is brought, shows sufficient authority. Cartioell v. Menifee, 2 Ark. 358. An attorney, properly qualified and practicing as such, in the absence of a statutory provision or of a rule of court prohibiting it, can recover for services rendered upon the employment of. a client, although he may not have been formally admitted to practice in the court where the services were rendered. And even if there is a statute or rule prohibiting such' a recovery, unless there has been a formal admission, yet, if the services are rendered by a firm, one of whom is duly admitted, the partners may recover in a joint action for such services. Harland v. Lilienthal, 53 N. Y. (8 Sick.) 438. An attorney who acts as broker for his client, in negotiating the sale or pledge of per- sonal property, is entitled to be paid as such ; but he cannot also charge a counsel fee for conversations with liis employer, in relation to the same transaction, unless by express contract. ^ydllier V. American Nat. Banlc, 49 N. Y. (4 Sick.) 659. § 4. TJnautliorized appearance. An unauthorized attorney may appear in an action for a party, and the party may be bound hj the judgment pronounced against him, unless there appear to be fraud or collusion in the case. Williams v. Builtr, 35 111. 544 ; Beckley v. Newcomb, 24 N. H. 359 ; Gager v. Babcock, 48 N. Y. (3 Sick.) 154 ; S. C, 8 Am. Eep. 532 ; Sheriff v. Smith, 47 How. (N. Y.) 470 ; Toion of Delhi v. Graham, 3 Hun, 407 ; 6 N. Y. S. C. (T. & C.) 49. The remedy of the party is against the attorney, for appearing and acting in his name without author- ity. Blodgett v. Conklin, 9 id. 442. Though, in some instances, where an attorney has assumed to appear for a party without authority, the courts, upon direct application, have granted relief, such as was consistent with the rights of all parties in- terested (Id. ; Denton v. Noyes, 6 Johns. 296 ; Ellsioorth v. Campbell, 31 Barb. 134 ; Abbott v. Button, 44 Yt. 546 ; Campbell v. Bristol, 19 Wend. 101) ; as in case of fraud or collusion, or where the attorney is insolvent. Id. So, it has been held, that although an autliority will be presumed, when an attorney appears for a defendant not served with process, yet, if the defendant prove that he had no authority, his rights cannot be affected by the attorney's acts. Hess v. Cole, 23 N. J. L. (3 Zabr.) 116 ; Handely v. Btatelor, 6 Lift. (Ky.) 186. And, in Louisiana, the right of a party to repudiate under oath, the authority oi ATTORNEYS. 459 those wlio apparently represent him, upon the records of a court, whether as plaintiff or defendant, cannot be questioned. Legere V. Richard^ 10 La. Ann. 669 ; see BoyMn v. Holden, 6 id. 120 ; Barnes v. Profilet, 5 id. 117. A writ of error, sued out b}^ an attorney, without the sanction of the plaintiff named in the writ, will be dismissed, on inotion, at the attorney' s cost. Poioell v. Spaulding, 3 Iowa, 443 ; Criclijield v. Porter, 3 Ohio, 518 ; Bell V. Ursury, 4 Litt. (Ky.) 334 ; Frye v. Calhoun County, 14 IlL 132. Proceedings regularly had by attorneys who lawfully ap- peared for the respective parties, cannot, in the absence of fraud, be questioned by their clients because of the want of specific authority to do the acts done or consented to by them. Palen V. Starr, 7 Hun, 422. ARTICLE yi. ACTIOKS AXD PEOCEEDIXGS BY CLIEiyT AGAI2<"ST ATTOENET. Section 1. In general. See ante, 4A4, art. 3, §§ 1, 2. § 2. For negligence. See a7ite, 444, art. 3, § 2. The liability of the attorney in this country is not generally limited, as is the liability of counsel in England, to gross negligence or ignorance. See Gambert v. Hart, 44 Gal. 542; see 1 Wait's Pr. 242, 243. But the client must, in some way, be injured by his attorney's negligence, or he cannot maintain an action, even for nominal damages. Harter v. Morris, 18 Ohio St. 492 ; see Suydani v. Vance, 2 McLean, 99 ; Grayson v. Wilkinson, 13 Miss. 268. Whether given facts amount to actionable negligence is, in Cal- ifornia, a question of law for the court. Gambert v. Hwrt, 44 Cal. 542. But, as a general rule, it is for the jury, under direc- tion of the court. Rliines v. Eoans, QQ Penn. St. 192 ; Beece v. Rlgley, 4 Barn. & Ad. 2u2. In Arkansas, an attorney is liable only for gross negligence, or gross ignorance in the performance of his professional duties ; and this is a question of fact to be determined by the jury, and is sometimes to be ascertained by the evidence of those who are conversant with, and skilled in, the same kind of business. Pennington v. Yell, 11 Ark. 212 ; see also Evans v. Watrous, 2 Port. (Ala.) 205 ; Hogg v. Martin^ Riley (S. C), 156; but see Goodman v. Walker, 30 Ala. (N. S.) 482. It has been held to be actionable negligence for an attorney to lay the venue in the wrong county {Kemp v. Bart, 4 Barn. & Ad. 460 ATTORNEYS. 424) ; to bring Ms action in a court whicli has no jurisdiction ( Williams V, Gibbs, 5 Ad. & El. 208) ; to prosecute the action too soon {Hopping v. Quin, 12 Wend. 517 ; Long v. Orsi, IS C, B. 619 ; Hiwaites y. Mackenzie^ 3 Carr. & P. 341) ; or to delay bringing an action until it is too late to be available, and tlie claim is lost. Smedes v. Elmendorf, 3 Johns. 185. And see Walpole V. Carlisle, 32 Ind. 415 ; Rldnes v. Ecans, 66 Penn. St. 192 ; Fitch v. Scott, 4 Miss. (3 How.) 314. So, if an attorney disobeys the lawful instructions of his client, and a loss ensues, he is responsible {Gilbert v. Williams, 8 Mass. 51 ; Armstrong v. Craig, 18 Barb. 387) ; although he may have acted in good faith and done what he honestly supposed to be for the interests of his client. Cox v. Limngston, 2 Watts & S. (Penn.) 103. And he will be held liable for improperly dismissing his client's suit {Bvans v. Watrous, 2 Port. [Ala.] 205) ; but he is not liable for omitting to defend a suit, if he be not instructed in the defense. Boston V. Craig, 2 Mo. 198, We have already seen in the pre- ceding article (2), that an attorney who appears for another without authority, is liable to such person for injuries sustained by this intrusion. And see O Hara v. Brophy, 24 How. (N. Y.) 379 ; Bradt v. Walton, 8 Johns. 298. An attorney has been held liable for omitting to insert in a writ necessary words, as where he counts for $12, instead of $1,200, whereby his client sustains a loss. Varnum v. Martin, 15 Pick. (Mass.) 440. So, although it may not be the strict pro- fessional duty of an attorney to prepare or supervise the prepara- tion of an affidavit for an attachment or a writ of attachment, yet if he undertakes to do so, and does it so negligently, or unskillf ally, that his client in the progress of the cause suffers an injury by reason of such want of care and skill, the attorney is liable to an action. Walker v. Goodman, 21 Ala. (N. S.) 647. And an attorney employed to record a mortgage, but who neglects to do so until after other subsequent incumbrances have been recorded, is liable immediately to the mortgagee, for all the dam- ages which are likely to be sustained by his default. Miller v. Wilson, 24 Penn. St. 114. See Arnold v. Robertson. 3 Daly (N. Y.), 298. An attorney is also liable to his client for the amount of damages consequent upon his gross neglect to collect a clahn received by him for collection. Reilly v. Cananaugli, 29 Ind. 435 ; Dearborn v. Dearborn, 15 Mass. 316 ; Oldham v. Sjyarks^ 28 Tex. 425 ; Uccles v. Stevenson, 3 Bibb (Ky.), 517. And the law imputes to an attorney knowledge of defects in legal i^ro- ATTOR^S^EYS. 46i ceedings for the sale of property taken under liis direction. Oalpin V. Page, IS Wall. (U. S.) 350. § 3. For accounting and payment. It is tlie general rule that an attorney is not liable to an action by his client for money col lected until after demand made, or a direction to remit. Rath- hull V. Ingals, 7 Wend. 320 ; People v. Broiherson, 36 Barb. (X. Y.) 662, P terse v. TJiornton, 44 Ind. 235; Cummins v. Jf Lain, 2 Ark. 402 ; Mardis v. ShacUeford^ 4 Ala. 493 ; Voss V. BacJiop, 5 Kans. 59. In other words, he is not considered in default until he receives orders from his principal. See Krause v. Dorrance, 10 Penn. St. 462 ; ante, 252 to 254. But although the general rule be as thus stated, circum- stances may exist which will dispense with the necessity of a demand ; as, when the attorney has been guilty of fraud or mal- practice, or of culpable negligence in not giving notice of the receipt of the money in a reasonable time [Glenn v. Cuttle, 2 Grant's Cas. [Penn.] 273 ; Benton v. Enibury, 10 Ark. 228; ante, 252) ; or when he puts in a sham plea for delay, or exhibits a manifest desire to baffle the plaintiif, or to withhold from him his just demand. Krause v. Dorrance, 10 Penn. St. 462 See Cum- mins V. M'' Lain, 2 Ark, 402. So, an engagement by an attorney to pay over money, when collected, to a third party, and a fail- ure to do so, dispenses with demand. Mardis v. SJiackleford, 4 Ala. 493. If he has any doubt whether the debts collected belong to his client, all that he has any right to ask, is indemnity on paying over the money. Marvin v. Ellmood, 11 Paige, 365 ; Sims V. Brown, 6 N. Y. S. C. (T. & C.) 5. An action for monej^ had and received will lie against an attor- ney, who, having a debt to collect, receives in payment debts on himself or on others, without authority from his principal. Houx V. Russell, 10 Mo. 246. And if an attorney collects money for his client, and uses the money as his own, he may be held liable for interest thereon during snch use. Mansfield v. Wllker- son, 26 Iowa, 482. See Walpole v. Bishop, 31 Ind. 156 ; Hover v. Heath, 3 Hun, 283 ; 5 N. Y. S. C. (T. & C) 488. So, if he receives property from a defendant, in satisfaction of a client's judgment, and disposes of it without rendering an account, he may be charged the amount he received for it as money. Christy v. Douglas, Wright (Ohio), 485. And it is held that an attorney, like any other agent, is liable in trover for the conversion of the money of his principal. Cotton v. Sharp- stein, 14 Wis. 226. A collecting agency, receiving and remitting 462 ATTORNEYS. a claim to their own attorney, who collects the money and fail a to pay it over, is liable for his neglect. Bradsireet v. Everson^ 72 Penn. St. 124 ; aiite, 266. § 4. Summary proceedings to collect, etc. Resort may be also had to the remedy by summary proceedings, to compel the pay- ment of moneys collected by an attorney. See Bowling Green Savings Bank v. Todd, 52 N. Y. (7 Sick.) 489. And in order to give the right to proceed summarily against him, it is not essen- tial that the attorney should have received the money in any suit or legal proceeding, or that he should have been employed to commence legal proceedings. It is enough if the money was received in his professional character ; as, where the demand on which he received it was left with him under instructions to call for payment, or obtain better securit}^, but without any direc- tions to sue. Matter of DaMn, 4 Hill, 42; Rxid. ^e.e Ex parte Staats, 4 Cow. 76 ; JIatter of Aitkin, 4 Barn. & Aid. 47 ; Wil- merdlngs v. Fowler, 55 N. Y. (10 Sick.) 641 ; 14 Abb. (N. S.) 249; 15 id. 86. It is held, however, that a summary applica- tion to compel an attorney to pay over money received in his professional capacity, is only entertained on motion of the client. It is a privilege given to clients for their protection against exactions and overreachings, and is not extended either to out-- side parties, or to assignees of clients. Hess v. Joseph, 7 Rob. (N. Y.) 609. The remedy is regulated, to a great extent, by local practice. § 5. Other relief. A default for not pleading will be opened, where it is suffered by the neglect of an attorney, who is insol- vent. Meacham v. Dudley, 6 Wend. 514. So, where the delay or irregularity in the cause has proceeded from the gross negli- gence or ignorance of the attorney, the court will, in its discre- tion, relieve the client against the consequences of the delay or irregularity. Pratt v. Adams, 7 Paige, 615. A right of action to recover back money paid to an attorney, in advance, for services to be rendered at a future day, accrues from the time when he neglects or refuses to render the service, Benton v. Craig^ 2 Mo. 198. ARTICLE \l\. CHANGE, ETC., OF ATTORNEYS. Section 1. In general, by client. A party to a suit has the right to discharge his attorney when he pleases, and the attop ATTORNEYS. 465 ney thus discliarged has no right to charge for his services after- ward. Wells V. RatcJi, 43 ]S'. H. 246 ; Carver v. United States, 7 Ct. of CI. 499 ; In re Paschal, 10 Wall. 483 ; Arrington v. Sneed, 18 Tex. 135. But a party cannot insist, as a matter of right, upon a substitution of one attorney for another, without the payment of the costs earned. Board of Supervisors v. Brod- Tiead, 44 How. (X. Y.) 411. And, upon the application for an order of substitution, the court will see to it, that any rights of the attorney, as to compensation for past services, etc., are properly protected. Id. HoioardY. Taylor, 6 Hun, 237; Hoff- man V. Van Nostrand, 14 Abb. (N, Y.) 336 ; Walton v. Sugg, Phill. L. (X. C.) 98 ; Sloo v. Law, 4 Blatchf. 268 ; and see Gardner v. Taylor, 5 Abb. X. S. (X. Y.) 33 ; S. C, 36 How. 63 ; 1 Wait's Pr. 248. If the attorney of one of the parties dies, or becomes incapable of conducting the suit, the opposite party should give the other notice to appoint a new attorney, before taking any ijew proceedings. Crivenv. Driggs, 3 Cai. (X. Y.) 150. § 2. Withdrawing, by attorney. An attorney may be changed on his own consent, but the consent must be filed on an order entered, substituting in Ms place the new attorney, and notice of the order must be served upon the opposite party. Ryland v, Noalces, 1 Taunt. 342; Borlon v. Lewis, 7 How. (X. Y.) 132. But in no case can an attorney be changed without leave of the court, or upon an order of a judge of the court. Anonymous, 7 Mod. 50 ; Mumford v. Murray, Hopk. 369 ; Krelceler v. Thaulc, 49 How. (X. Y.) 138 ; 1 Wait's Pr. 248. And until so changed (upon notice of the change or withdrawal, given to the opposite attorney), he will be held responsible, and service u ^on him will be deemed good. United States v. Curry, 6 How. (U. S.) 106 ; Boyd V. Stone, o Wis. 240. § 3. Assistants or substitutes. An attorney employed to prose- cute or defend an action has no implied authority to employ a substitute to act in his place. The relation being one of per- sonal trust and confidence, the attorney cannot delegate hia duties, without the consent of his client. Matter v. Bleakly, 5 Paige, 311 ; Hitclicock v . M' Gehee,! Vovt (Ala.) 556 But, if the client knew of the substitution, and either accepts the ser- vices of the substitute, or does not object, he is bound by the substitution, and must pay whatever he has agreed to pay the principal attorney. Smith v. Lipsoiuib, 13 Tex. 532 ; and see King V. Pope, 28 Ala. 601 ; Johnson v. Cunningham, 1 id. 249 ; Fenno v. English, 22 Ark. 170. So, an attorney employed to 464 ATTORNEYS. manage a suit may, in the absence of liis employer, engage assistant counsel, and sucli counsel may charge his fees to the attorney or his client. Briggs v. Georgia, 10 Vt. 68. Though it is otherwise, if the party, or his authorized agent, is present at the trial. Id. And, as a general rule, the attorney in a case has no power, as such, to employ assistant counsel at the expense of his client ; and such employment will not bind his client, unless it can be fairly inferred, from the facts in the case, that such authority was ^iven to him by the client. CooJc v. Bitter, 4 E. D. Smith (N. Y.), 253 ; Scott v. Hoxsie, 13 Vt. 50 ; Paddock v. Colby, 18 id. 485. Where an attorney receives a demand for collection, and, without the client's knowledge, delivers it to another attorney, who collects and fails to pay it over, the first attorney is liable for the money. Pollard v. Row land, 2 Blackf. (Ind.) 22 ; Bradstreet v. E'oerson, 72 Penn. St. 124 ; Kellogg v. Norris, 10 Ark. 18 ; see Lewis v. Peck, 10 Ala. 142; Herron v. Bullitt, 3 Sneed (Tenn.), 497; Oummins v. ,WLain, 2 Ark. 402. An attorney at law, who has been elected a judge, cannot sub- stitute another to perform his subsisting professional contracts • for, what a person is legally incapacitated to do himself, he can not do by another. Batcliff v. Baird, 14 Tex. 43. § 4. Partners of attorney. The law recognizes professional asso ciations between attorneys for the prosecution of their particular business, as lawful, and admits of no distinction between them and other partnerships, at least so far as relative rights and lia- bilities are involved. As in other partnerships, each member is entitled to any benefit accruing from the conduct of the others, and all are liable for the acts and receipts of each within the scope of the partnership business. Livingston- v. Cox, 6 Penn. St. 360. Thus, although but one of them appears in and con- ducts a suit in court, all are entitled to the fees earned, and an action may be maintained in their joint names. Warner v. Gris- wold, 8 Wend. 665. So, the service of papers upon the partner not appearing is service upon all. Lansing v. McKillnjp, 7 Cow. 416. And attorneys practicing in partnership) are equally responsible for money collected and not paid over, though one of them had no participation in that particular transaction. DioigM V. Simon, 4 La. Ann. 490 ; W Farland v. Crary, 8 Cow. 253. So, if a suit be unskillfully or negligently conducted b}'" one of the partners, they are all responsible to the client in an action for damages. Warner v. Oriswold, 8 Wend. 665 ; Liv- ATTORNEYS. 465 ingston v. Oox, 6 Penn. St. 360. If a firm be employed, the client has a right to the services of all of its members. Cholmondeley V. Clinton, 19 Yes. 261. And if one of them die, the engage- ment is at an end, unless by its terms it is still to subsist, and the business is to be attended to by the survivors. For the services rendered during the continuance of the engagement, the firm is entitled to compensation; but by the death of one of the persons employed, the engagement is determined if its comple- tion requires any exercise of professional skill. McGill v. Mc- Gill, 2 Mete. (Ky.) 258. Attorneys who are partners are not, however, released from the obligations they have assumed, so far as their clients are concerned, by a dissolution of their firm, or by any other act or agreement between themselves. WaUi:er V. GoodricJi, 16 111. 341 ; Fool v. Gist, 4 McCord (S. C), 259 ; Wilkiason v. Griswold, 12 Sm. & M. (Miss.) 669 ; Morgan v. Roberts, 38 111. Q6. In 2f ew Jersey it has been held not to be lawful for two or more attorneys to create a partnership and prosecute and defend suits in the name of the firm. Wilson v. Wilson, 5 IST. J. L. (2 South.) 791. § 5. Clerks. During an attorney ' s absence, his clerk represents him as to all ordinary business of the office {Poioer v. Kent, 1 Cow. 211) ; and the attorney is bound by the acts and declara tions of his clerk, in all matters within the scope of the latter' 3 agency. lb.; BlrJcbeck v. Staford, 23 How. (N. Y.) 236; S. C, 14 Abb. 285. But however extensive the general powers of the clerk may be, he cannot discontinue an action without the con- sent of his principal {Iroine v. Spring, 35 How. [N. Y.] 479 ; S. C, 7 Rob. 293) ; nor can he bind the attorney's client by a discharge, without satisfaction, of a debt due the client. Even the attorney has no authority to do this. Carter v. Talcott, 10 Yt. 471. ARTICLE YIII DEALIXGS BETWEEX ATTORXEY AXD CLIEXT. Section 1. In general. The highest degree of good faith is required from an attorney, who, while the relation and tlie con- fidence incident to it, exists enters into bargains and dealings .with his client. The confidential nature of the relation enables the attorney to exercise a strong influence over the actions of his client, puts it in his power to avail himself of his necessities, his YoL. 1 — 59 466 ATTORNEYS. good nature, liberalitj- and credulity ; and lience the law not only watches over all the transactions of parties in this predica- ment, but often interposes to declare void transactions which, between other parties, would be held unobjectionable. See Bibb T. Smith, 1 Dana(Ky.), 582 ; Hills v. Mills, 26 Conn. 213 ; Starr \ Yanderlieyden, 9 Johns. 258 ; Downing v. Major, 2 Dana (Ky.), 228 ; Payne v. Aoery, 21 Mich. 524. But where the rela- tion of attorney and client is completely dissolved, and the par- ties are no longer under the antecedent influence, this rule ceases, and tlie}^ stand upon the rights and duties common to all other persons. Gibson v. Jeyes, 6 Yes. 277 ; Hose v. Mynatt, 7 Yerg. (Tenn.) 30; Phillips v. Overton. 4 Hayw. (Tenn.) 291 ; Mason v. Bing, 3 Abb. Ct. App. (N. Y.) 210. § 2. Presumptions. Whenever a contract between an attorney and his client inures greatly to the advantage and benefit of the attorney, the court will scrutinize the transaction with extreme Tigilance. In such cases, all presumptions are in favor of the client, and against the propriety of the transaction, and the bur- den of proof is upon the attorney to show, by extrinsic evidence, that all was fair and just, and that his client acted understand- ingljr and with a full knowledge of all the lacts connected with the transaction or the subject-matter. McMahoii v. Smith, 6 Heisk. (Tenn.) 167 ; Jennings v. McConnell, 17 111. 148; Haight V. Moore, 5 Jones & Sp. (IST. Y.) 161 ; Kisling v. Shaw, 33 Cal. 425. So, where a person acting as attorney, agent, or confiden- tial adviser of another receives a gift from the latter, the pre- sumption is against the propriety and validity of the transaction; but this presumption may be overcome by evidence that the transaction was voluntary and fair. Nesbit v. Lockman, 34 N. Y. (7 Tiff.) 167; Burling v. King. 46 How. (N. Y.) 452 ; S. C, 2 N. Y. S. C. (T. & C.) 545. § 3. Relief granted to client. In case of hard and unconscion- able bargains between a client and his attorney, made under the pressure of adverse circumstances, equity will alford appropriate relief. Downing v. Major, 2 Dana (Ky.), 228 ; and see Miles v. Brwin, 1 McCor'd's Cli. (S. C.) 524; De Pose v. Pay, 4 Edw. (N. Y.) 40; Broc/c v. Barnes, 40 Barb. (N. Y.) 521. If an attorney conceals from his client a ^proposition made by the debtor to the client, through the attorney, and the latter derives a benelit from Buch concealment, it is a fraud, and he cannot profit by the con- cealment. Hoopes V. Burnett, 26 Miss. 428. So, if an attorney deceives his client by false representations, or kiiowingl}- pei-mits ATTORNEYS. 467 aim to be deceived by tlie false representations of others, \ie vio- lates liis duty as such, and will not be permitted to avail himself of a contract made under such circumstances. Smith v. Tfcomp- son, 7 B. Monr. (Ky.) 805 ; MarsJiall v. Joy, 17 Yt. 546 ; see Trotter v. Smith, 59 111. 240. And the receipt by a client from his attorney of a part of the proceeds of his claim, when more might have been collected by the employment of ordinary care and skill, is neither an accord and satisfaction, nor an estoppel. Goodman, v. WalJcer, 30 Ala. 482. § 4. Protection to attorney. While a bargain, between attorney and client, is viewed with great jealousy and suspicion, and while its entire fairness must be shown by the attorney who claims the benefit of it, there is no inexorable rule pronouncing its illegality. Thus, a deed from a client to his attorney and counsel, for the consideration of affection, and also for a sum of money, though much less than the value of the land conveyed, will not be set aside, in the absence of evidence of incapacity or imbecility in the grantor, or of fraud and imposition by the grantee. Wendell v. Van Rensselaer, 1 Johns. Ch. 344. The presumption of fraud or undite influence is not so strong in law, that it cannot be overcome by evidence ; and if the attorney can show that all was fair, and that the client acted freely and nnderstandingly, he will be protected. See Brock v. Barries, 40 Barb. 521 ; JSTesMt v. LocTcman, 34 N. Y. (7 Tiff.) 167 ; Miles v. Ermn, 1 McCord's Ch. (S. C.) 524. §5. Purchases adverse to client. While the relation of attorney and counsel exists, the attorney is not permitted to take advant- age of his client' s affairs or speculate upon his interests. Hence, the law forbids an attorney to purchase, against the interest of his client, property sold in the course of litigation, in which he is retained, and holds such sales void, or the attorney will be treated as the trustee of the client. Harper v. Perry, 28 Iowa, 57 ; Hawley v. Cramer, 4 Cow. 717 ; Davis v. Smith, 43 Vt. 269 ; Hatch V. Fogerty, 40 How. (N. Y.) 492; S. C, 10 Abb. (N. S.) 147 ; Warren v. Hawkins, 49 Mo. 137 ; aide, 246. § 6. Attorney held as trustee. In many cases a client may require an estate purchased by the attorney to be held in trust for the former. Wheeler v. Willard, 44 Vt. 640. Thus, if an attorney purchases an opposing or outstanding title to land, the knowledge of which he has obtained during the continuance of professional relations to his client, such purchase will inure to the benefit of the client, while he holds the land, or to that of 468 ATTORNEYS. his vendee, after he lias conveyed his interest. Henry v. Haman^ 25 Penn. St. 354 ; Hockenbury v. Carlisle^ 5 Watts ^ S. (Penn.) 348 ; and see Moore v. Bracken, 27 111. 23 ; Giddings v. East- man, 5 Paige, 561 ; ante, 246. The cestui que trust must, how- ever, do equity by reimbursing the outlay and costs of the trustee, unless it may be in a case of manifest fraud intended and attempted to be perpetrated. Smith v. Brotlierline, 62 Penn. St. 461. ARTICLE IX. PRIVILEGED COMMUNICATIONS. Section 1. In general. It is the general rule, that communica- tions between attorney and client in reference to all matters which a7'e the proper subject of professional employment are privileged. This includes all communications made by a client to his attorney or counsel, for the purposes of professional advice or assistance, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid. Yates v. Olmsted, 56 N. Y. (11 Sick.) 632 ; Britton v. Lorenz, 45 N. Y. (6 Hand) 51 ; Blgler v. Reylier, 43 Ind. 112 ; McClellan v. Longfellow, 32 Me. 494 ; Johnson v. Sullivan, 23 Mo. 474 ; Wetherhee v. Ezekiel, 25 Vt. 47. And the privilege extends equally to both parties. Games v. Piatt, 4 Jones & Sp. (N. Y.) 360 ; S. C, 15 Abb. (N. S.) 337 ; 59 N. Y. (14 Sick.) 405 ; Minet V. Morgan, L. R., 8 Ch. 361. So, it extends to an attor- ney employed to draw a deed {Linthicum v. Remington, 5 Cranch [C. C], 546) ; and to an interpreter employed to translate between the attorney and the client {Parker v. Carter, 4 Munf. [Va.] 273); and a communication made by a client to an attorney's clerk, in regard to a suit prosecuted by the clerk's principal as attorney, is equally privileged as if made to the attorney in person. Landsberger v. Gorham, 5 Cal. 450; Sibley v. Waffle, 16 N. Y. (2 Smith) 180. Coram anicationa made to a prosecuting attorney, relative to criminals or suspected persons, are likewise privileged, and cannot be divulged without the consent of the "person makiug theui. Oliver V. Pate, 4'Sli\d. Vi^2', State v. Hazleton, 15 La. Ann. 7!^/, And a sheriff is entitled to the same privilege, in his communi- cations with his attorney, as other person*^. Paxton v. Steckel, 2 Penn. St. 93. But the rule does not extend to the protection of communications made to mere conveyancers, or to a scrivener. ATTORNEYS. 469 Matthews' Estate^ 5 Penn. Law J. Eep. 149 ; Randel v. YateSf 48 Miss. 685. The privilege is accorded on grounds of public policy, and in order to facilitate the administration of justice. That the attor- ney is willing to divulge the communications is not enough to warrant receiving them. Chirac \. MeinicJier, lW^\\e?ii.2S0\ JenJdnson v. State^ 5 Blackf. (Ind.) 4G5. And where they are made by two or more clients jointly, to their common legal adviser, the seal of confidence can only be removed by all of them ; the consent of a majority is not even sufficient, and one or more of tliem cannot require a disclosure as evidence against the others, without their consent. Wliiting v. Barney, 38 Barb. 893 ; Bank of Utlca v. Mersereau, 3 Barb. Ch. 528, 596 ; see Chahoon v. State, 21 Gratt. (Va.) 822. The privilege of the attor- ney extends to all information derived from his client, as such, either by oral communications, or from books or papers shown to him by his client, or placed in his hands in his character of attorney or counsel by such client. Crosby v. Berger, 11 Paige, 377. And the privilege is not affected by the fact that no fee was asked or expected. McManners v. State, 2 Head (Tenn.), 213 ; March V. Ludlum, 3 Sandf. Ch. (N. Y.) 35. The relation of attorney and client must, however, exist at the time, and the communication must be made for the purpose of obtaining advice in regard to legal rights. Earle v. Grout, 46 Yt. 113 ; see Childs v. Delaney, 1 K Y. S. C. (T. & C.) 506. The burden lies on him who seeks to exclude communications as privileged, to show facts constituting the privilege. Id. § 2. Exceptions and limits to rule. The rule as to the exclu« sion of testimony on privileged communications, should be strictly construed. Satterlee v. Bliss, 36 Cal. 487. The commu- nications must be of a confidential and professional character, and the attorney must be acting for the time being, in the charac- ter of legal adviser, or the party must have good reason to sup- pose he is so acting {Coon v. Swan, 30 Yt. 6); and acting upon the very matter to which the communication referred. Branden V. Gowing, 7 Rich. (S. C.) 459 ; McManus v. State, 2 Head (Tenn.), 213 ; Flack v. Neill, 26 Tex. 273. An attorney is bound to testify, like any other witness, to statements made by the client to other persons, or by other persons to the client, or to each other in his presence {Gallagher v. Williamson, 23 Cal. 331) ; and generally, an attorney may be required to disclose facts which he learned from other sources than his client. Crosby v. Berger, 11 Paige, 377; Rogers v. Bare, Wright 470 ATTORNEYS. (Ohio), 136 ; Hunter v. Watson, 12 Cal. 363 ; Beeson v. Beeson^ 9 Penn. St. 279. And he may be required to testify as to acta done by the client, in his presence, such as the execution of a writing, though he was present in consequence of his engage- ment as counsel. Patten v. Moor, 29 N. H. 163. Communica- tions made by one who is a nominal party, but has no interest in the suit, are not privileged {Allen v. Harrison, 30 Vt. 219) ; nor does the privilege extend to information received, from the party, by one in the character of a friend, and not as counsel {Hoffman v. Smith, 1 Cai. 157 ; Goltra v. Wolcott, 14 111. 89) ; nor to a communication voluntarily made to counsel, after he has refused to be employed by the party making it. Setzar v. Wil- son, 4 Ired. L. (IST. C.) 501. So, where the attorney or counsel has an interest in the facts communicated to him, or when their disclosure becomes necessary to protect his own personal rights, he is exempted from the obligation of secrecy. Rochester City Banlc V. Suydam, 5 How. (N". Y.) 254 ; see Mitchell v. Brorii- herger, 2 Nev. 345 ; Nam v. Baird, 12 Ind. 318. The privilege does not extend to a mere conveyancer {Mat- thews'' Estoie, 1 Phil. [Penn.] 292); nor to an attorney who is merely employed to draw a deed or mortgage without giving any legal advice in regard thereto {Hutton v. Robinson, 14 Pick. [Mass.] 416 ; Be Wolf v. Strader, 26 111. 225 ; Borum v. Fonts, 15 Ind. 50 ; Randel v. Yates, 48 Miss. 685 ; but see Linthicum V. Remington, 5 Crancli [C. C], 546) ; nor to a student at law, because studying in an attorney's office, or under his direction {Holman v. Kimball, 22 Vt. 555 ; Barnes v. Harris, 7 Gush. [Mass.] 576) ; nor to third persons present at a conference between attorney and client. Hay v. Morris, 13 Gray (Mass.), 519; Goddard v. Gardner, 28 Conn. 172. § 3. Presence of both parties. Agi-eements made in the pres- ence of an attorney, between his client and the opposite party, are not privileged. Carr v. Weld, 15 N. J. L. (3 Green) 314. Nor is a communication made by one party to his attorney and counsel, in the presence of the other party, privileged. Dunn v. Amos, 14 Wis. 106 ; WJiiting v. Barney, 30 N. Y. (3 Tiff.) 330 ; see Hemenway v. Smith, 28 Vt. 701. And the same is true of communications by one party to the attorney of the other, look- ing toward a compromise. McLean v. Clark, 47 Ga. 24. So, where two parties select the same attorney, and make their com munications in the presence of each oth(u\ in regard to the same subject-matter, each party waives his right to regard those com- munications as confidential, and in asserting their rights undei ATTORNEYS. 471 the contract, each is entitled to a disclosure of its stipulations. Parish v. Gates, 29 Ala. 254. An attorney is not privileged as a witness from communicat- ing facts concerning his client, when he himself is a party to the transaction. Jeanes v. Fridenherg, 3 Penn. Law J. Rep. 199. § 4. Production of papers. An attorney, who, as such, has been intrusted with papers, is not bound to j)roduce them in evidence, on the call of the opposite party, or of a third person. Kellogg v. Kellogg, 6 Barb. 116 ; BurJcee v. Lelancl, 4 Vt. 612 ; Lyiide v. Judd, 3 Day (Conn.), 499 ; People v. Benjamin, 9 How. (]^. Y.) 419 ; 2 Wait's Pr. 536 ; 1 id. 240. But all papers intrusted to an attorney in professional confidence are not neces- sarily to be deemed conlidentipJ communications {MltclielV s Case, 12 Abb. [N. Y.] 249) ; and it has been held, that their production can be resisted only when a controversy exists, or is anticipated between the parties, in relation to the subject on which commu- nications were made to counsel, on the documents intrusted to him. PecJi v. Wllliains, 13 id. 68. An attorney who has in his possession receipts which his client could be compelled to pro- duce or disclose, can also hQ compelled to produce them or testify as to their contents. Ex parte Maulshy, 13 Md, 625 ; Andrews v. Ohio, etc., R. R. Co., 14 Ind. 169. § 5. Waiviug- privilege. The client may waive his privilege, and when he calls upon the attorney to testify, or his consent is in some way shown, the attorney may be required to do so, Benjamin v. Coventry, 19 Wend. 353 ; Fossler v. Schriher, 38 111. 172 ; Riddles v. Aildn, 29 Mo. 453. And where the plaintiff examines his attorney as a witness, he thereby waives his privi- lege, and, upon a cross-examination, the attorney is bound to answer generally. Crittenden v. Strother, 2 Cranch (C. C), 464 ; see King v. Barrett, 11 Ohio St. 261 ; Woburn v. Henshaw, 101 Mass. 193. § 6. Termination of privilege. The privilege endures forever, unless removed by the client {Bank of Utica v. Mersereau, 3 Barb. Ch. [iS". Y.] 528, 596) ; and the attorney cannot, after he ceases to be the attorney of a party, disclose what was com- municated to him in that capacity. Andrews v. Thompson, 1 Houst. (Del.) 522 ; Yordon v. Hess, 13 Johns. 492. But if, after that relation has ceased, the client voluntarily repeats to the attorney what he had communicated during the existence of the relation, the attorney is a competent witness as to this commu- nication. Id. ; and see Williams v. Benton, 12 La. Ann. 91. So, the privilege ceases after the death of the client, where the 472 ATTORNEY' S. solicitor lias been made his executor and residuary legatee. Croshy v. Berger, 4Edw. (N.Y.) 254; S. C. affirmed, 11 Paige, 377. § 7. What are privileged comiuiiuicatioiis. It has been held, that an attorney cannot be compelled to testify as to what claim or title he was employed to maintain (CJiirac v. Reinicker^ 11 Wheat. 280) ; nor, as to the condition and appearance of a deed of trust and the trust notes at the time they were exhibited to him on the occasion of his employment for the purpose of fore- closing the deed of trust [Gray v. Fox^ 43 Mo. 570) ; nor, as ta whether or not a certain guaranty, written above the payee's name, in a different handwriting, on a back of a note, was there when placed in his hands for collection. Dietrich v. Miicliell^ 43 111. 40. And the attorney of a plaintiff in ejectment, who is administrator of an estate, cannot be compelled to testify whether or not he is employed to bring the suit for the individual benefit of his client. Stephens v. Mattox, 37 Ga. 289. So, where an attorney had erased an indorsement on a bond, held by his client, on which a suit was pending, and had no knowledge of the contents of the indorsement, except what was obtained as attorney in the cause, he was held not to be bound to testify as to those contents. Crawford v. IP Kissack, 1 Port. (Ala.) 433. In an action on a promissory note, the plaintiff's attorney was called as a witness to prove that the note was not the property of the plaintiff. He declined to state any communications inade to him by his client, and the court refused to compel him. Miller v. Weeks, 22 Penn. St. 89. § 8. What not privileged. An attorney may, however, be com- pelled to disclose the name of the person by whom he was employed {Martin v. Anderson, 21 G-a. 301 ; Brown v. Payson, 6 N. H. 443; Gower v. Emery, 18 Me. 79); the character in which his client employed him {Beckwith v. Benner, 6 C. & P. 681) ; the time when an instrument was put into his hands {Broion v. Pay son, 6 N". H. 443 ; Wheatley v. Williams, 1 Mees. & Wels. 533) ; collateral facts, as that a bond was lodged with the client, by way of indemnity, or that he expressed himself satisfied with a certain security. Heister v. Davis, 3 Yeates (Penn.), 4. He may also be examined as to the handwriting of his client [Johnson v. Daverne, 19 Johns. 134) ; or be called to prove the identity of his client [Beckwith v. Benner, 6 C. & P. 681); or to disclose terms of compromise offered by him to his client's creditors {M^ Tavish v. Dunning, Anth. N. P. [N. Y.] 82 ; id. 113) ; and a question as to the amount of an attorney's* fee, and the terms on which it was paid, when relevant, is allow- ATTORNEYS. 473 able. Shauglmessy v. Fogg, 15 La. Ann. 330 ; Smithwick v. Etans, 24 Ga. 461. So, an attorney who draws up a will is competent to testify of its contents, in order to set it up as a lost will. GraJiam v. 0' Fallon, 4 Mo. 338. Where the attorney and client both engage in committing a wrongful act, the former cannot refuse to disclose the facts of the transaction, on the ground that his knowledge thereof i-esulted from the relationship of attorney and client. Dudley V. Beck, 3 Wis. 274. And facts stated to an attorney, to show that the cause in which he is sought to be retained, does not conflict with the interests of a client for whom he is already emploj'ed, are not confidential communications. Heaton v. Findlay, 21 Penn. St. 304. So, when an attorney, while acting professionally for a client, receives at the latter' s request a deed of his land, and conveys it to a third party, no consideration moving in either of the transactions, these facts are not privi- leged. Hager v. Shindler, 29 Cal. 47. ARTICLE X. DISBARRIXG. Section 1. In general. The power to disbar an attorney is ])ossessed by all courts which have authority to admit attorneys to ].)ractice. But it is a power which should only be exercised for the most weighty reasons, such as would render the con- tinuance of the attorney in practice incompatible with a proper respect of the couri for itself, or a proper regard for the integritj of the profession. And it has been said that a removal from the bar should never be decreed where any punishment less severe — such as reprimand, temporary suspension, or tine — would accomplish the end desired. See Bradley v. Flslier, 13 Wall. 335 ; Ex loarte Garland, 4 id. 333, 379 ; Ex parte Burr, 9 Wlieat. 529. § 2. What is ground for. An attorney can be disbarred, only on the ground of moral or professional delinquency. The doc- trine has been held that the power of the court to disbar may be exercised, either for a contempt, which is an offense against the court itself, or for unlitness, which disqualilies the attorney from lining the office properly. Austin's Case, 5 Rawle (Penn.), ]91„ So, the obligation which attorneys assume when they are admitted to the bar is not discharged by merely observing the rules of courteous demeanor in open court, but also includes Vol. I. — 60 474 ATTOHNEYS. the abstaining out of court from insulting language and offen- sive conduct toward the judges personally for tlieir judicial acts. And a threat of personal chastisement, made by an attor- ney to a judge out of court for his conduct during the trial of a cause pending, is sufficient ground for striking his name from the rolls. Bradley v. Flslier^ 13 Wall. 335. See Jackson v. State, 21 Tex. 668. Where an attorney had been convicted of subornation of per- jury, he was held to have been properly disbarred {State v. Holding, 1 McCord [S. C], 379) ; and so, for a false oath or pro- fessional statement without a conviction for perjury. Perry v. State, 3 Iowa, 550. And see In re Percy, 36 N. V. (9 Tiff.) 651. It is good cause for striking an attorney from the roll, that he accepted a challenge to fight a duel, or, that he fought a duel in a sister State, and killed his antagonist {Smith v. State, 1 Yerg. [Tenn.] 928) ; or that he attempted to make an opposing attorney drunk, in order to obtain an advantage over him in the trial of a cause {Dic'kens' Case, 67 Penn. St. 169); and generally, it seems that the court may strike the name of an attorney at law from the rolls for fraudulent conduct, although it is not so gross as to be criminally punishable. United States v. Porter, 2 Cranch (C. C), 60. But discreditable acts, if not infamous and not con- nected with an attorney's duties, will not give the court juris- diction to strike him from the roll. Dickens'' Case, 67 Penn. St. 169; S. C, 5 Am. Rep. 420. Where a statute prescribes causes for which an attorney may be disbarred, the courts cannot disbar him for causes not speci- fied in the statute. Ex parte Smitli, 28 Ind. 47 ; see, also, Red- man V. State, id. 205 ; Kane v. Haywood, 66 N. C. 1. § 3. Notice to attorney. Except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, the power of the court to disbar should never be exercised without notice to the offending party of the grounds of complaint against him, and affording him ample oppoitunity of explanation and defense. This is said to be a rule of natural justice, and it is as applicable to cases where a proceeding is taken to reach the right of an attorney to practice his profession, as it is when the proceeding is taken to reach his real or per- sonal property. Bradley v. Fisher, 13 Wall. 335, 354. And even where the matters constituting the grounds of complaint have occurred in open court, under the personal observation of the judges, the attorney should ordinarily be heard before the ATTORNEYS. 475 order of removal is made ; for those matters may not be incon- sistent with the absence of improper motives on his part, or may- be susceptible of such explanation as would mitigate their offensive character, or he may be readj^ to make all proper reparation and apology. Id. ; Ex parte Robinson, 19 id 505 ; Ex parte Bradley, 7 id. 364 ; Ex parte Heyfron, 7 How. (Miss.) 127 ; Beene v. State, 22 Ark. 157 ; Peoj^le v. Tamer, 1 Cal. 148; Eletcher v. Dainrjer field, 20 id. 430 ; Saxton v. Stoicell, 11 Paige, 526. If an attorney wishes to divest himself of the burden and dis tinction of his office, he must apply to the court; and the court will strike his name oflF the roll, unless the application is made to avoid an impending censure. Scott v. Van Alstyne, 9 Johns. 216 § 4. Decision and effect of. The punishment of an attorney, by striking his name off the roll, is not in every case to be con- sidered a perpetual disability. If his offense has been attended with circumstances of extenuation, and his subsequent conduct proves him deserving of its lenity, the court may order him to be re-admitted, upon a proper application made for the purpose. Rex V. Greenwood, 1 W. Bl. 222 ; Ex parte Frost, 1 Chit. 558, n. But if the name of an attorney be struck off by one court, he will not afterward be admitted in any other {Re iSralth^ 1 B. & B. 522 ; S. C, 4 Moore, 319) : and the removal of a solici- tor from his office, as solicitor of the court of chancery, deprives him of the jjower to practice as solicitor, attorney or counsel, in an}^ other court. Matter of Peterson^ 3 Paige, 510. So, when an attorney has been suspended, he will not be permitted to act for the party under a letter of attorney. Paul v. Purcell, 1 Browne (Penn.), 348. § 5. Restoration. Mandamus is the appropriate remedy to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter. Ex parte Robinson, 19 Wall. 505 ; Ex parte Bradley, 7 id. 364. Thus, the district court has no authority to remove from office one who has been admitted as an attorney of the supreme court ; and, if it does so, a man- damus may issue to restore the attorney to his office. People v. Turner, 1 Cal. 143, 188, 190 ; and see People v. Justices, etc., 1 Johns. Cas. (N. Y.) 181. The reason given for the issuing of the writ is, that the office is of public concern, and regards the administration of justice ; and because there is no other remedy. White's Case, 6 Mod. 18; Leigh's Case^ 3 id. 335; S. C, Car* thew, 169, 170. 476 AUCTIONEERS. CHAPTER XIX. AUCTIONEERS. TITLE I. OF AUCTIONS xVND AUCTIONEEES IN GENERAL. ARTICLE I. WHO MAY BE AN^ AUCTIONEER. Section 1. In general. An auction is a public sale of property to the highest bidder (see Rex v. Taylor, McClel. 362 ; S. C, 13 Price, 336 ; Walker v. Advocate, etc., ] Dow, H. L. Ill) ; and an auctioneer is one who (conducts a public sale or auction, gen- erally under the authority of a license granted to him for that purpose. Hunt v. Philadelphia, 35 Penn. St. 277 ; State v. Conlding, 19 Cal. 601 ; Clark v. Cushman, 5 Mas. 505 ; State v, Riwker, 24 Mo. 557 ; Waterhouse v. Dorr, 4 Me. 333. A distinc- tion is to be observed between an auctioneer and a broker. The former can neither buy for himself nor for a third person ; nor can he sell at private sale. But the latter can both buy and sell at private sale. Barker v. Mar. Ins. Co., 2 Mas. (C. C.) 369 ; Wilkes V. Bills, 2 H. Bl. 555 ; and see M^ Mechen v. Mayor, etc., of Baltimore, 3 Harr. & J. (Md.) 534 ; ante, 79." § 2. Statutes relating to. Primarily, an auctioneer is the agent of the seller of the goods, appointed in the same manner as other special agents. His rights and duties are to a great extent peculiar to his special business, and in many of the States these are limited by statute, and the taking out of a license is made a prerequisite to the exercise of his calling. See cases cited above. And so in England, by 8 and 9 Vict. c. 15 ; 27 and 28 Vict. c. 56, § 14. A bond is likewise sometimes required by statute, to be executed by a person desirous of doing an auction ])usiness, as a security for his private customers, as well as for the duties payable to the State. See Dams v. Commonwealth, 3 Watts (Penn.), 297; Florence v. Richardson, 2 La. Ann. 663; Mayor y etc., of Georgetown v. Baker, 2 Cranch (C. C), 291 ; City Council V. Patterson, 2 Bailey (S. C), 165. AUCTIOXEERS. 477 A mere verbal authority is sufficient to authorize an agent to act as auctioneer and to sell lands, but not to make a deed of them. Yourt v. Hopkins, 24 111. 326. ARTICLE II. RIGHTS AND POWERS OF AUCTION'EERS. Section 1. As to conditions of sale. An auctioneer has a right to prescribe the rules of bidding and the terms of sale. And the conditions of sale, printed and pasted up under the auc- tioneer's box, or in the auction room, where he declares that the conditions are as usual, is sufficient notice to purchasers of the conditions. Mesnard v. Aldridge, B Esp. 271. So, verbal dec- larations by the auctioneer at the sale are admissible against the principal and will bind him, unless they contradict the printed conditions, in which case they are not binding {Poioell v. Ed- munds, 12 East, 6 ; Gunnis v. Erliart, 1 H. Bl. 289 ; Wright v. Deklyne, Pet. [C. C] 199) ; though an advertisement of a sale of property by an auctioneer may be explained at the time of sale. Rankin v. Matthews, 7 Ired. L. (N. C.) 2S6. See, also, Boinest v. Leiznez, 2 Rich. (S. C.) 464 ; Waimoright v. Read., 1 Desau. (S. C.)573. And if there be any special agreement, vary- ing the written or printed conditions of sale, the parties would not, of course, be bound b}^ them. Barttett v. Purnell, 4 Ad. & El. 792 ; Ex parte Gioynne, 12 Ves. 379. § 2. Ma}' receive payment. An auctioneer employed to sell goods under the usual conditions may receive payment for them from the purchaser. Yourt v. Hopkins, 24 111. 326 ; Captl v. Thornton, L. R., 1 Q. B. 352. But he must sell for cash, and has no authority to receive a bill of exchange instead of cash (id.); though it would seem to be otherwise as to a check. Thorold V. Smith, 11 Mod. 87. Where, under the terms of the conditions of sale, the vendor is to receive the purchase-money, the auc- tioneer is not authorized to accept paj'ment. Sgkes v. Giles, 5 Mees. & W. 645, 652. But if the terms of sale provide that a portion of the purchase-money shall be paid within a given time, and the auctioneer is authorized to receive it, his authority is not revoked immediately upon the expiration of tlie time limited without further orders from his principal prohibiting the subse- quent reception of such money. Pinckney v. Hagadorn, 1 Duer :N. Y.), 89. 478 AUCTIONEERS. § 3. No right to warrant. There seems to be a doubt whether, in an ordinary sale of goods by auction, an auctioneer, in virtue of his office, has any right or authority to warrant goods sold by him, in the absence of any express autliurity from his princi- pal to do so, and without proof of some known and established usage of trade, from which an authority can be implied. See Upton V. Buffolli County Mills, 11 Cush. (Mass.) 589 ; Blood v. French, 9 Gray (Mass.), 197. It is clear, however, that an auc- tioneer has no authority to bind an administrator personally, by a warranty of the condition of goods of the intestate (id.); and it may be accepted generally as the true doctrine that auc- tioneers are special agents, having authority only to sell, and not to warrant, unless speciall}^ instructed so to do. The Monte Allegre, 9 Wheat. 616, 647. See Denty. McGratli, 3 Bush (Ky.), 174. ^ 4. Cannot delegate his powers. The authority committed to an auctioneer is a personal trust and confidence, which he cannot delegate to another. Stone v. State, 12 Mo. 400. Pie may, how- ever, employ another person to use the hammer and make the outcr}^, under his immediate suj^ervision and direction ; and, although he is occasionally absent during the sale, the agent will not incur the penalty of selling without license. Com- momoealth v. Ilarnden, 19 Pick. (Mass.) 482. He may also employ all necessary and proper clerks and servants to assist him in the sale. Id. ; ante, 244. And see Force v. Bonneval, 6 La. Ann. 386. § 5. Limited to perfecting sale by auction. An auctioneer is an agent to effect a sale, and as soon as the sale is perfected his agency ceases. If he has pursued his instructions, he is in no manner liable for the execution of the contract, and can neither add to nor take from the terms and conditions the princi})al has prescribed. Bolnestv- Leignez, 2 Rich. (S, 0.) 464; Nelson v. AldrUlge, 2 Stark. N. P. 485. Although he may sell lands under a verbal authority, he cannot execute a deed of them without a written power. Yourt v. Hopkins, 24 111. 326. § 6. May bring actions. In case of personal property, an auctioneer employed to sell may ordinarily maintain an action for the price, or for the property itself. Atkyns v. Amber, 2 Esp. 493'; Tyler v. Freeman, 3 Cush. (Mass.) 261. This doctrine is founded upon the right of the auctioneer to receive, and hia responsibility to his principal for, the price of the property Bold, and his lien thereon for his commissions, which give him • AUCTIONEERS. 479 a special property in the goods intrusted to liim for sale, and an interest in the proceeds. Beller v. Blacky 19 Ark. 566 ; Ilulse v. Young, 16 Johns. 1 ; Minturn v. Main, 7 N. Y. (3 Seld.) 220. As it regards real estate the case is different. The auctioneer can have no such special property in it, and would not ordi- naiily bo held entitled to receive the price for it. But when the terms of his employment, and of the authorized sale, contein- ])late the payment of a deposit into his hands at the time of the auction, and before the completion of the sale b}^ the delivery of the deed, he stands, in relation to such deposit, in tlie same position as he does to the price of personal property sold and delivered by him. He may receive and receipt for the deposit ; his lien for commissions will attach to it; and he may sue for it in his own name whenever an action for the deposit, separate from the other purcliase-mone}', may become necessary. Thomp- son V. Kdly, 101 Mass. 291 ; S. C, 3 Am. Rep. 352. See post, 488, art. 8, § 1. § 7. Caniiot sell at private sale. In no case can an auctioneer, under his authority as such, negotiate a private sale after failure at an auction sale. Daniel v. Adams, Ambl. 495 ; Jones v. ranney, 13 Price, 76 ; S. C, M'Clel. 25 ; Seton v. Slade, 7 "Ves. -76 ; MarsJi v. Jelf, 3 F. & F. 234. § 8. Cannot bid or buy for another. Ordinarily, an auctioneer cannot purchase the goods of his principal, either for himself or for a third person. Were he permitted to do so, his interest as agent would be utterly incompatible with his interest as pur- chaser, and would tend to promote fraudulent dealing. See Cojyeland v. Mercantile Ins. Co., 6 Pick. (Mass.) 204 ; Barker v. Mar. Ins. Co., 2 Mason, 369. But see Scott v. Mann, 36 Tex. 157 ; ante, 246. ARTICLE III. DUTIES AXD LIABILITIES OF AUCTIOXEERS. Section 1. As to care of property. An auctioneer is bound to take due care of property sent to him for sale, the same as ha would of his own goods. He assumes the responsibilities and duties of a bailee, for hire of labor and services, and must exer- cise ordinary diligence and skill. He is not liable for unavoid- able accidents. Maltby v. Christie. 1 Esp. 340. An auctioneer has no right to place goods, intended for sale, in the public streets, because there is no necessitj^ therefor ; and if he does, 480 AUCTIONEERS. he is indictable for a nuisance. CovimonweaWi v. Passmore, 1 Serg. & R. (Penn.) 219. § 2. To obey instructions. An auctioneer is bound strictly to observe the instructions of his principal, and if he deviate from such instructions, he is liable in damages, like other agents. Wilkinson v. Campbell, 1 Bay (S. C), 169 ; Wolfe v. Luyster, 1 Hall (N. Y.), 146 ; Steele v. EllniaJcer, 11 Serg. & R. (Penn.) 86 ; ante, 242, 243. If the price is limited, his duty is to set the goods up at that price. If they will not sell at the price limited, he must not sell. And if the goods perish because they cannot be sold at that price, the loss must fall on tlie owner. Williams v. Poor, 3 Cranch (C. C), 221. And see Bush v. Cole, 28 N. Y. (1 Tiff.) 261. In the absence of special instructions, it is the duty of the auctioneer to follow the common custom in the business. See Johnston v. Ushorne, 11 Ad. & El. 549 ; ante, 243. § 3. Selling for undiscovered principal. An auctioneer, acting as the agent of another in the sale of property, is personally responsible as vendor, unless at the time of the sale he disclose the nanae of his principal. His general employment as auc- tioneer is wot per se notice that he acts as agent. Hills v. Hunt, 20 Wend. 431 ; Schell v. StepTiens, 50 Mo. 375 ; ante, 258, 259. So, a bidder may repudiate a purchase of goods knocked down to him, if the auctioneer refuses to disclose his princiiDal. Thomas v. Kerr, 3 Bush (Ky.), 619. § 4. Diligence and honesty. Auctioneers assume upon them- selves an obligation to their employers to perform the service confided to them, with ordinary care and skill, and they become responsible in default of either. In other words, they are respon- sible for loss arising from gross negligence or ignorance. Beyond this, their duties or liabilities do not extend. Hicks v. Minturn, 19 Wend. 550. The degree of care and skill required to be exer- cised by an auctioneer is such as is ordinarily possessed by men of his profession or business in the same neighborhood or place, lb.; Denew v. Daverell, 3 Camp. 452. § 5. Sale of stolen goods. An auctioneer who innocently sells stolen goods, or goods as the property of one not the owner, is liable for the goods or their value to the real owner, in an action brought by the latter to recover the value. Hoffman v. Carow, 20 Wend. 21; S. C. affirmed, 22 id. 285 ; Allen y. Broion, 5 Mo. 323. Thus, where one hired a piano-forte, and afterward bor- rowed money upon it from an auctioneer, who sold it by auction and paid over the proceeds, it was held that the party from AUCTIONEERS. 481 whom it was hired could maintain trover therefor against the auctioneer. Chambers v. McCormicJc, 4 N. Y. Leg. Obs. 342. It has, however, been held, in an early case, that if an auc- tioneer pays to his employer the proceeds of goods sold, with- out notice that a third person claims property in them, he is not afterward liable to such third person, though he be the real owner of the goods. Jacobs^ Case, 2 Bay (S. C), 84. And although he be responsible to the real owner in such case, in the first instance, yet he has his remedy against the one who em- ployed him to sell the goods. Adamson v. Jarms, 4 Bing. 66 ; S. C, 12 Moore, 241. See Murray v. Mann, 2 Exch. 538 ; Stevens V. Legh, 24 Eng. Law & Eq. 210. Where the persons present at an auction sale were distrustful of the title of the reputed owner of the article to be sold, and the auctioneer announced that he "knew him well, and he was all right, and that he (the auctioneer) would warrant that his title was good," it was held that this amounted to a warranty by the auctioneer, upon which an action might be sustained. DentY. McGratn, 3 Bush (Ky.), 174. See ante, 256, 257. § 6. Liable as a stakeholder. It is not unusual for an auc- tioneer to be made a stakeholder; and, as such, it is his duty, where he sells an estate by public auction and receives a deposit from the purchaser, to retain the deposit until the sale is com- plete, and it is ascertained to whom the money belongs. Gray V. Gutter idge, 3 C. & P. 40. If he pay over the sum deposited to the vendor before the completion of the contract of sale, and the contract be rescinded or abandoned on account of the ven- dor's defect of title, he does so in his own wrong, and will be liable to the purchaser for the deposit, in an action for money had and received. Id. ; Edwards v. Hodding, 5 Taunt. 815 ; S. C, 1 Marsh. 377 ; BurrougTi v. Skinner, 5 Burr. 2639. And the action may be brought to recover the deposit, without not'ce to the auctioneer that the contract had been rescinded by the parties. Duncombe v. Cafe, 2 M. & W. 244. But unless such notice has been given, or the repayment of the deposit has been demanded, interest thereon cannot be recovered. Lee v. Munn, 8 Taunt. 45 ; S. C, 1 Moore, 481 ; Calton v. Bragg, 15 East, 223. In an action for the deposit, in which the auctioneer pays the costs, he cannot afterward recover these costs from the principal, in an action for monej^ had and received, but must declare specially. Spurrier v. Elderton, 5 Esp. 1. Where a solicitor, acting for 9 vf,ndor, receives the deposit on Vol. L— 61 482 AUCTIONEERS. the sale of an estate, the law will not imply, as in the case of an auctioneer, that he receives it as a stakeholder. If he professea to receive it as agent for the vendor, he is bound to pay it over to him on demand. Edgell v. Day^ 1 H. & R, 8 ; S. C , L. K., 1 C. P. 80. ARTICLE IV. EFPECT OF PUFFING AND COMBINATIONS. Section 1. In general. It is a fraud upon honest bidders for an owner of property offered for sale at auction, or, in the case of a judicial sale, for creditors in whose behalf the sale is made, to employ puffers or by-bidders for the purpose of increasing the price by iictitious bids ; and a buyer whose bid immediately followed one made by puffer cannot be compelled to complete the contract, or he may have it set aside in equity. National Baiik of Metropolis v. 8prague, 20 N. J. Eq. 159 ; Donaldson V. McRoy, 1 Browne (Penn.), 346 ; Moreliead v. Hunt, 1 Dev. Eq. (N. C.) teioard, 14 Com. B. 595 ; WJiitaJcer v. Banlc of England, 1 Cr. Mees. & Ros. 744 ; JIarzetil v. Williams, 1 Barn. & Ad. 415 ; Bo?/d V. Emmerson, 2 Ad. «& E. 184, 202. But the right of the depositor is a chose in action, and his check does not transfer the debt, or give a lien upon it to a third person, without the assent of the depositary. Chapman v. WJiite, 6 N. Y. (2 Seld.) 412 ; Ballard v. Randall, 1 Gray, 605 ; Wharton v. WalJcer, 4 B. & C. 163 ; Duncan v. Berlin, 60 N. Y^. (15 Sick.) 151. The holder of a check cannot, therefore, sue the bank for refusing payment in the absence of some special matter creating a privity between the bank and the holder. Carr v. Nat. Security Banlc, 107 Mass. 45 ; S. C, 9 Am. Rep. 6, and note ; Banlc of Repub- lic V. Millard, 10 Wall. 152 ; 2 Pars, on Notes & Bills, 61, and note ; Duncan v. Berlin, 60 N. Y. (10 Sick.) 151. The recourse of the holder, in such case, is against the drawer, and not against the bank, although the bank, at the time the check was pre- sented, held funds of the drawer sufficient to pay the check. lb. ; Moses V. Franlclin Bank, 34 Md. 574. It has, however, been held that where a bank receives a check drawn upon it and charges it against the drawer and settles with him upon that basis, the payee of the check has a right of action against the bank for the amount of the check. Seventh Nat. Bank v. Qook, 73 Penn. St. 751 ; S. C, 13 Am. Rep. 751 ; 3 Pitts. L. J. 193. See Bills and Notes. A bank check is, in form and effect, substantially the same as an inland bill of exchange, and the rules applicable to the one are in general applicable to the other. Murray V. Judah, 6 Cow. 484 ; Barker v. Anderson, 21 Wend. 372 ; Barnet v. Smith, 10 Post. (N. H.) 256. Checks are said, however, to possess the distinguishing characteristics that they are always drawn on a bank or banker ; that they are payable Vol. I. — 64 506 BANKS AND BANKING. immedii^tely on presentment, without the allowance of an}^ day a of grace, and that they are never presentable for mere acceptance, but only for payment. Story, J., In Matter of Brown, 2 Story (C. C), 502. See Yeazie BanJt v. Winn, 40 Me. 60 ; Henderson V. Pope, 34 Ga. 361 ; Boioen v. Newell, 5 Sandf. (N. Y.) 326 ; S. C, 2 Duer, 584; 8 N. Y. (4 Seld.) 190 ; Ivory v. BanTc of State of Missouri, 3^^ Mo. 475 ; Andrew v. BlacTdy, 11 Ohio St 89 ; Harris v. Clarlx:, 3 N. Y. (3 Comst.) 93. The holder of a check can recover against the indorser only when he has nsed due diligence in presenting it and giving notice of demand and non-paj^ment by the bank. When the parties all reside in the same place, the holder should present the check on the day it is received, or on the following daj^, and when payable in a different place from that in which it is nego- tiable, the check should be forwarded by mail on the same or the next succeeding day for presentment. Yeazie BanTc v. Winn, 40 Me. 60 ; Smith v. Jones, 20 Wend. 192 ; Smitli v. Miller, 43 N. Y. (4 Hand) 171 ; S. C, 3 Am. Rep. 690 ; Bickford v. First Nat. BanTc of CTiicago, 42 111. 238. So, it has been held that, in order to charge the drawer in case of the dishonor of a check, it must be presented for payment within a reasonable time, and notice given to the drawer within a like reasonable time, otherwise the delay is at the peril of the holder. Daniels v. Kyle, 5 Ga. 245 ; HarTcer v. Anderson, 21 Wend. 372. Other cases hold, however, that mere delay in presenting a check for payment will not discharge the drawer, unless he has been injured thereby. See Little v. PTioenix BanTc, 2 Hill (N. Y^.), 425 ; Woodin v. Frazee, 6 Jones & Sp. (N. Y.) 190 ; Stewart v. SmitTi, 17 Ohio St. 82 ; SmitTi v. Jones, 2 Bush (Ky.), 103 ; Laws v. Rand, 3 C B. (N. S.) 442. But, while there is this confusion in the cases, as to the time within which a check payable on demand should be presented, there seems to be none in regard to the necessity of a demand of payment, a refusal to pay, and a notice thereof to the drawer, before he can be made liable by suit. lb. ; Case v. Morris, 31 Penn. St. 100 ; Judd v. SmitTi, 3 Hun (N. Y.), 190 ; 5 N. Y. S. C. (T. & C.) 255. If, however, the drawer of a check, payable instantly, has no funds at the time in the bank upon which it is drawn, it is, when unexplained, deemed a fraud, and the holder can sustain an action upon it, without presentment for payment or notice. Hoyt v. Seeley, 18 Conn. 353 ; True v. TTiomas, 16 Me. 36 ; FitcTi v. Redding, 4 Sandf. (N. Y.) 130. So, the drawer of a check, by stopping ita BANKS AND BANKING. SiH payment at the bank, relieves the holder, as against him, from any necessity of presentment and notice of non-payment. Jacks V. Darrin, 3 E. D. Smith (N. Y.), 557; Purchase v. Mattison, 6 Duer (N. Y.), 587. And, payment by the drawer, of part of a check, after it becomes due, excuses the holder from proving a demand on the bank. Levy v. Peters, 9 Serg. & R. (Penn ) 125. A holder who takes a check in good faith and for value received, several days after it is drawn, receives it without being subject to defenses of which he has no notice before or at the time his title accrues. In re Brown, 2 Story, 502 ; Ames v. Meriam, 98 Mass. 294. See Lancaster BanJc v. Woodward, 18 Penn. St. 357. Post-dated checks are paj^able on the day of their date, al- though negotiated beforehand. Taylor v. 8ip, 1 Yroom. (N. J.) 284. And the jDayment by a bank of such a check before the day upon which it is dated, is a payment in its own wrong, and the money so paid remains to the credit of the drawer. lb. The assignee, in good faith of this fund, may maintain an action against the bank for its recovery. Godin v. Baiik of Coinmon- loealth, 6 Duer, 76. For a full discussion of this subject see Bills and Notes. §11. Certified checks. When a check payable to bearer, or order, is presented with a view to its being marked " good," and is so certified, the sum mentioned in it must necessarily cease to stand to the credit of the depositor. It thenceforth passes to the credit of the holder of the check, and is specifically appropri- ated to pay it when presented ; and as the purpose of having it so certified is not to obtain payment, but to continue with the bank the custody of the money, the holder can have no greater rights than those of any other depositor. Farmers and Mechanics^ Bank of Kent Co. v. Butchers and Drovers' Bank, 4 Duer (N. Y.), 219 ; Willets v. The Phosnix Bank, 2 id. 121 ; Girard Bank v. Bank of Penn Township, 39 Penn. St. 92. When a check is certified "good" by a bank, the bank does not warrant the genuineness of the body of the check, either as to paj^ee or amount. It simply certifies to the genuineness of the signature of the drawer, and that he has funds sufiicient to meet the check, and engages that those funds will not l)e withdrawn from the bank by him. It has accordingly been held, that w^here the plaintiff certified a check which had been altered, by changing the date, name of payee, and raising the amount, and subse- quently paid the same to the defendant, that the amount could be recovered back as for money paid by mistake {Marine 508 BANKS AND BANKING. National Bank v. National City Banlc, 59 N. Y. [14 Sick.] 67 ; reversing S. C, 4 Jones & Sp. 470. See also Espy v. Bank of Cincinnati, 18 Wall, 604 ; Bank of North America v. National Bank of Commonwealth, 59 N. Y. [14 Sick.] 628 ; N Bank of C. in N Y. V. N. M. Bank A. of N. F., 55 N. Y. [10 Sick.] 211 ; Mussey v. Eagle Bank, 7 Mete. [Mass.] 306. But see Seventh National Bank v. Cook, 73 Penn. St. 483 ; Barnet v. Smith, 30 N. 11. 256; Rounds v. Smith, 42 111. 245; Merchants' Bank v. State Bank, 10 Wall. 604), from which it would appear that the certification of a check as " good," by the authorized officer of a bank, absolutely binds the bank as acceptor. And see Meads V. Merchants' Bank, 25 N. Y. (11 Smith) 143. § 12. Paying forged checks. The drawee of a check is pre- sumed to know the handwriting of the drawer and the genuine- ness of his signature to the paper ; and having paid the same, although it should afterward be discovered that the name of the drawer was forged, the drawee cannot recover back the money from the party to whom it was paid. Price v. Neat, 3 Burr. 1354; Weisser v. Denison, 10 N. Y. (6 Seld.) Q8. But the rule is otherwise where the forgery is not in counterfeiting the name of the drawer, but in altering the body of the check ; for to require the drawee to know the handwriting of the body of the check is unreasonable, and, in most cases, would be requiring an im- possibility. Bank of Commerce v. Union Bank, 3 N. Y. (3 Comst.) 230. See Belknap v. National Bank, 100 Mass. 376 ; Commer- cial, etc.. Bank v. First National Bank, 30 Md. 11. Hence, it is held that where a bank has paid by mistake to a bona fide holder a certified check, which, either before or after certification, had been fraudulently altered by raising the amount, it can recover back the sum thus paid. National Bank of Commerce in New York v. National Mechanics' Banking Asso- ciation of New York, 55 N. Y. (10 Sick.) 211 ; Marine National Bank v. National City Bank, 59 N. Y. (14 Sick.) 67. See ante., % 11, and cases there cited. It is likewise held that a bank ia not responsible for the genuineness of each indorsement pre- ceding the party presenting or depositing the check. Levy v. Bank of America, 24 La. Ann. 220. But where a forged certifi- cation of a check is presented, at the bank upon which the check 18 drawn, to the teller whose certificate it purports to be, and he pronounces it genuine, he adopts the certification, and the bank is bound by it the same as though it were genuine. Continental Bank v. Bank of t?te CommonwealtJt, 50 N. Y. (5 Sick.) 575. BANKS AND BANKING. 509 § 13. Notes payable at a bauk. By making a note negotiable at bank, the maker authorizes the bank to advance, on his credit, to the holder, the sum expressed in the note. Mandemlle v. Union Bank of Georgetoion, 9 Cranch, 9. The direction in a note, making it payable at a given bank, is equivalent to a request to the bank to pay it. Griffin v; Rice, 1 Hilt. (N. Y.) 184; see Wood\ Merchants' Savings, etc., Co., 41 111.267. It would, therefore, be a fraud on the bank to attempt a set-off against the note on account of transactions between the maker and the holder. MandeviUe v. Union Bank of Georgetown, 9 Cranch, 9. The certificate of a bank where a note is payable, that it is "good," is merely information that the maker has funds in the bank, and such information may be given verbally, by letter, or by a certificate on the note itself The correctness of the cer- tificate is a matter which the certifying bank has the means of knowing, and is bound to state correctly; being estopped from denying the truth of its statement, if the presenting bank, rely- ing thereon, fails to charge the indorsers. Irving Bank v. Wether aid, 36 N. Y. (9 Tiff,) 335 ; and see Marine Nat. Bank v. Nat City Bank, 59 N. Y. (14 Sick.) 67, 77. § 14. Over-drafts. A usage to allow customers to overdraw, and to have their checks and notes charged up, without present funds in the bank, is a usage and a practice to misapply the funds of the bank, which is not countenanced in a court of jus- tice. See Lancaster Bank v. Woodicard, 18 Penn. St. 357 ; Minor v. Mechanics'' Bank, 1 Pet. 46. It is not, however, an uncommon thing for bankers to permit over-drafts, with an understanding that the account should be made good before the close of banking hours on that day, or soon after ; and whether such over-drafts are prudent or not, depends upon the character and standing of the drawer, and upon the circumstances ol each case. And where the transaction is in reality a loan upon sufficient security, if loss is sustained, a cashier is not liable for permitting it to be done in the form of an over-draft. Commer- cial Bank of Albany v. Ten Eyck, 48 N. Y. (3 Sick.) 305. A bank may maintain an action against the drawer who has received moneys from their cashier on checks overdrawn. Frank- lin Bank v. Byram, 39 Me. 489 ; see Keene v. Collier, 1 Mete. (Ky.) 415; Tradesmen' s Banlc v. Astor, 11 Wend. 87. And it is held that where a party fraudulently overdraws his account at a bank, the property of the bills drawn out is not changed ; 510 BANKS AND BANKING. and tlie bank may follow tliem, except in the hands of a "bona fide holder for valuable consideration, who has taken them in the ordinary course of business. Tradesmen^ s Bank v. Merritt, 1 Paige, 302. See Justli v. Nat. Bank of Commonwealth, 56 N. Y. (11 Sick.) 478. If a party draws a' check on a bank, without funds there to meet it, he is not entitled to notice of non-payment, nor is he discharged by the holder's delaying to present it within a rea- sonable time. CusMng v. Gore, 15 Mass. 69, 74 ; Eichelberger V. Finley, 7 Harr. & J. (Md.) 381. The drawing of a check under such circumstances is, when unexplained, a fraud which deprives the maker of all right to require presentment and demand of payment. Franklin v. Vanderpool, 1 Hall (N. Y.), 78 ; Fitch V. Redding, 4 Sandf. 130 ; Healy v. Oilman, 1 Bosw. 235. § 16. Pass-books. A regulation by a savings bank that the deposit will be paid only upon production of the pass-book, is held to be reasonable ; with the qualification, however, that proof of its loss, or that the fact that it cannot be found after due search, will entitle the depositor to draw his deposit without it. Warhus v. Bowery Savings Bank, 21 N. Y. (7 Smith) 543. See Heath v. Savings Bank, 46 N. H. 78. And while the officers of a bank are held to the exercise of reasonable care and dili- gence, yet in paying money upon the presentation of a deposit- book, the disbursing officer is not required to demand strict proof of the identity of the depositor. Sullivan v. Lewiston Institution for Savings, 56 Me, 507 ; Hay den v. Brooklyn San- ings Bank, 15 Abb. N. S. (N. Y.) 297 ; Schoenwald v. Metro- politan Savings Bank, 57 N. Y. (12 Sick.) 418 ; reversing S. C, 1 Jones & Sp. (N. Y.) 440 ; Kelly v. Emigrant, etc.. Savings Bank, 2 Daly (N. Y.), 27. A by-law of a savings bank, assented to by its depositors, that the pass-book of each depositor con- taining his account shall be transferable to order, does not ren- der such pass-book a negotiable instrument ; and even if it did, it would not be so as to third parties. Witte v. Vincenot, 43 Cal. 825. An entry by a bank teller, of the amount of a deposit in the bank-book of a dealer with the bank, being the act only of the agent of the bank, and not of both parties, is not conclusive. If, therefore, the dealer can afterward prove that there was a mis* take in the entry, there is a remedy as in ordinary cases of mistake. Mechanics and Farmers'' Bank v. Smith, 19 Johns 115. BANKS AND BANKING. 611 § 16. Certificate of deposit. A certificate of deposit in the ordi< nary form is regarded, by some authorities, as possessing all the requisites of a negotiable promissory note. See Bank of Orleans V. Merrill, 2 Hill (N. Y.), 295 ; Kilgore v. Bulkley, 14 Conn. 363 ; Laughlin v. Marsliall, 19 111. 390 ; Carey v. McBougald, 17 Ga. 84 ; Gate v. Patterson, 25 Mich. 191 ; Leamtt v. Palmer, 3 N. Y. (3 Conist.) 19. Other authorities regard it, however, as merely an instrument recording the agreement of the parties in respect of a certain deposit of money, the consideration of which is stated in the memorandum itself, and to be rather an agreement than a promissory note. See Cliarnley v. Bulles, 8 Watts & S. (Penn.) 353 ; Talladega Ins. Co. v. Woodward, 44 Ala. 287 ; Sibree V. Tripp, 15 Mees. & Wels. 23. In a recent case it was held that a certificate of deposit issued by a bank is not a contract, but an evidence of debt, in the nature of a receipt, and that parol evidence is admissible to explain it, as in case of a receipt. HotcTiJciss v. Mosher, 48 N. Y. (3 Sick.) 478. A certificate of deposit, like a deposit credited in a pass- book, is intended to represent moneys actually left with the bank for safe-keeping, which are to be retained until the depositor actually demands them. And such a certificate is not dishonored until presented. National Bank of Fort Edward v. Washing- ton Co. Nat. Bank:, 5 Hun (N. Y.), 605. A bank certificate of deposit in the following form — "A has deposited in this bank $440, subject to his order, payable only on the return of this certificate" — was held not negotiable. Lebanon Bank v. Mangan, 28 Penn. St. 452. Under the provisions of a statute, which forbid the circulation of bills or notes not payable on demand, banks have no power to issue time certificates of deposit, and, if issued, they will be void. Bank of Peru v. FarnswortJi, 18 111. 563 ; see also Lea- mtt V. Palmer, 3 N. Y. (3 Corast.) 19 ; Bank: of Orleans v. Merrill, 2 Hill, 295. § 17. Nature of l)aiik notes or bills, xl bank note, popularly termed a " bank-bill," is a promissory note, payable on demand to the bearer, made and issued by a person or persons acting as bankers and authorized by law to issue such notes. 1 Bouv. Diet. 187. Bank notes, strictly speaking, are not money, but for every purpose in the ordinary tntnsaction of busines, they are consid- ered as money. Jl/brriZ? V. ^rowJTi, 15 Pick. (Mass.) 177 ; Gover- nor V. Carter, 3 Hawks (N. C), 328 ; Pierson v. Wallace, 2 Eng (Ark.) 282. 512 BANKS AND BANKING. They are a good tender, unless especially objected to ( Warren V. Mains, 7 Johns. 476 ; Hoyt v. Byrnes, 11 Me. 475 ; Wheeler V. Knaggs, 8 Ohio, 169) ; and they pass under the word " money " in a will, and, generally speaking, are treated as cash. See Miller v. Race, 1 Burr. 452 ; United States Bank v. Baiik of Georgia, 10 Wheat. 347 ; Drury y. Smith, 1 P. Wms. 404 ; Mor- ris V. Edioards, 1 Ohio, 189 ; S. C. again, id. 524. Bank post notes, being intended to circulate after they are due, like other bank notes, are not subject to the rules applicable to ordinary promissory notes, but are assimilated to ordinary bank notes. Fulton BanJi v. Phcenix Bank, 1 Hall (N. Y.), 577. See, gener- ally, as to bank notes, Hastings v. Johnson, 2 Nev. 190 ; Cox v. Smith, 1 id. 161 ; Hood v. Miller, 2 Duv. (Ky.) 103 ; Buchegger V. Schultz, 13 Mich. 420 ; Bedford v. Smith, 6 Bush (Ky.), 129. See Bills and Notes. § 18. Destroyed^ mutilated, or lost notes. Where the destruc- tion of a bank note is clearly established, the bank is bound to pay the owner the amount of it. Bank of Louisville v. Sum- mers, 14 B. Monr. (Ky.) 306 ; Hagerstown Bank v. Adams Ex- press Co., 45 Penn. St. 419. See Irwin v. Planters'' Bank, 1 Humph. (Tenn.) 145 ; Tower v. Appleton Bank, 3 Allen (Mass.), 387. So the holder of a bank note, who has divided it for the purpose of transmission by mail, and has lost one-half, can re- cover of the maker the amount of the whole note ; but the nego- tiability is thereby destroyed, and no other person can recover therefor on the other half. Bank of Virginia v. Ward, 6 Munf (Va.) 166 ; Hinsdale v. Bank of Orange, 6 Wend. 378. § 19. Forged or stolen bills. Any holder of lost or stolen bank bills, who has received them in good faith in the regular course of business and for a valuable consideration, can recover upon them against the bank. City Bank v. Farmer s\ etc.. Bank, Taney, 119 ; Olmstead v. Winsted Bank, 32 Conn. 278. And an action to recover cannot be defeated by proof that the bills were protested before the plaintiff purchased them, and that he ob- tained them at a discount. lb. Such bona jide holder does not, however, acquire an absolute title which he can transmit to a pur- chaser who has notice that the bills were stolen. lb. Notes issued by a bank, organized under an unconstitutional law, are void, and will constitute no consideration for a promis- sory note. Skinner v. Demming, 2 Ind. 558. If a bank receive as genuine forged notes purporting to be its own, and pass them to the credit of a depositor who acts in good faith, the bank is BANKS AND BLINKING. 513 bound by the credit thus given, and the notes must be treated as cash. Baiik of United States v. Bank of Georgia, 10 Wheat. 333 ; Gloucester Banlc v. Salem Banlc, 17 Mass. 33 ; Salem Bank V. Gloucester Bank, id. 1. But where a person obtained bank notes of a bank by means of a forgery, and exchanged them for other bank notes with another bank and individuals, it was held that the bank imposed on by the forger}^ was entitled to the last- mentioned bank notes, whicli were in the forger's possession, and had been received by him as its property. Coffin v. Anderson, 4 Blackf. (Ind.) 395. § 20. Demanding payment of bank bill. Before an action can be sustained upon a bank bill, promising payment upon demand, there must be a demand of payment, or circumstances must ex- ist excusing a demand, although a bill is not made payable at any particular place [Thurston v. Wolf borough Bank, 18 N. H. 391. '^Q^- Dougherty Y . Western Bank, 13 Ga. 287; Bryant v. DamarisGotta Bank, 17 Me. 240 ; Sta.te Bank v. Van Horn, 4 N. J. L. [1 South.] 382), from which it would appear that a bank bill, like any other note of hand payable on demand, but having no place of payment appointed therein, may be sued, and the action may be sustained without proof of any special demand. See also Ware v. Street, 2 Head (Tenn.), 609. It is generally true, however, that a cause of action on bank bills does not accrue until a demand and refusal. Crawford v. Bank of Wilmington, Pliill. L. (N. C.) 136 ; National Bank of Fort Edward v. Washington County National Bank, 5 Hun, 605. But one demand of payment in the aggregate is sufficient on presenting to a bank a number of its own bills {Suffolk Bank V. Lincoln Bank, 3 Mason, 1 ; Reapers^ Bank v. Willard, 24 111. 433) ; and if a bank closes its doors, and has no place of busi- ness, a demand is not at all necessary in order to sustain an action upon its bills. Thurston v. Wolfborough Bank, 18 N. H. 391. So if notes made payable at a branch of the principal bank are called in by the latter, a demand at the latter entitles the holder to sue that bank on non-payment. Nashville Bank v. Henderson, 5 Yerg. (Tenn.) 104. And in a suit against one who passes the note of a broken bank, fraudulently, or with a promise to take it back if found to be uucurrent, a demand on the makers need not be proved. Helling s v. Hamilton, 4 Watts & Serg. (Penn.) 462. Upon demand and refusal to pay a bank note, the holder be- comes entitled to interest from that time to the date of actual Vol. I. — 65 514 BANKS AND BANKING. payment, the same as upon ordinary liquidated debts L-ver due. And the fact that the note is i«ot expressed to be payable ' with interest" does not defeat the right. Estate of the Baiik of Pennsylvania, 60 Penn. St. 471. And see Banlh v. Thornsl)erry, 3 B. Monr. (Ky.) 619. § 21. Mode of payment. It is the duty of a bank, on the money being demanded upon its notes, to pay within a reason- able time according to circumstances. And if there be unrea- sonable delay, it amounts to a refusal of payment. Reapers'' BanTi v. Willard, 24 111. 433. Thus a bank cannot, at its option, pay out in small pieces when it has large on hand, thereby cre- ating delay ; and it should keep money ready counted out, or servants sufficient to count it out witliin a reasonable time. lb. Suffolk Banlc v. Lincoln Bank, 3 Mason, 1 ; Hubhard v. Che- nango Bank, 8 Cow. 88. See People v. Dubois, 18 111. 333 ; Boatman' s, etc., Inst v. Bank of Missouri, 33 Mo. 497. The fact that bank notes are below par does not render their circulation illegal ; but the bank must pay the face of them to the holder, although he took them below par. Pohison v. Beall, 26 Ga. 17. So, the maker of a note payable to a bank of issue, has a right to tender the bills of such bank in payment of the note ; and the bank cannot, by an assignment of its effects, de- prive its debtor of this right. Blount v. Windley, 68 N. C. 1. § 22. Refusal to redeem, consequence of. The failure of a bank to redeem its notes is a question for the State to inquire into, and the bank possesses the power to make loans until its charter shall have been declared forfeited. liohinson v. Bank of Darien^ 18 Ga. 65 ; Maury v. Ingraham. 28 Miss. 171. The mere act of suspending payment, without any general derangement of the business of the bank, is not, intrinsically, and apart from any statute provision, a forfeiture of its charter ; and especially where the legislature have provided a remedy by imposing a penalty or damages for refusal to redeem notes. State v. Com- mercial Bank of Cincinnati, 10 Ohio, 535. But the suspension may be carried so far as to afford evidence of an entire misuser of its powers, and thus extinguish its chartered privileges. lb. See Rockwell v. State, 11 id. 130 ; Limngston v. Bank of N. Y., 26 Barb. (N. Y.) 304; S. C, 5 Abb. 338 ; 2 Broom & Had. 412, 413, and notes (Wait's ed.). § 23. Loans and discounts. As a general rule a bank, in making a loan, must confine itself to its capital, or to its own notes, which it is legally liable to redeem ; and if it give out soiuething else it BANKS AND BANKING. fJlS must show that the transaction is in substance ;he same. Maurij V. IngraTiam, 28 Miss. 171. See BaiiJc of the State v. Ford, 5 Ired. (N. C.) 692. But a power in the charter to loan on banking prin- ciples does not restrict the corporation from loaning their notes at a discount, with an agreement on the part of the borrower to redeem with specie the identical bank notes received by him on the loan, if they should be returned to the bank during the con- tinuance of the loan, and also to purchase of the company, with specie during the loan, a certain amount of other bank notes not current at par. Northamiyton Bank v. Allen, 10 Mass. 284. If a bank charge a higher rate of interest than is allowed by its charter, and the charter is silent as to the effect or penalty of such overcharge, the effect is not to render the whole note void, but only the excess beyond the legal rate ; which excess, if paid, can be recovered by the borrower or his assignee, either at law or in equitj^ Darby y. Boatmen's Sav. Inst, 1 Dill. 141. See jRocJc Hlver Banlc v. Slierioood, 10 Wis. 230 ; Commercial Bank V. Nolan, 8 Miss. 508. A bank buying a usurious note stands upon the same footing as an individual, unless its charter or some statute provides differently. Chafin v. Lincoln Sav. Bank, 7 Heisk. (Tenn.) 499. In the case of a mercantile discount, and ordinary bills and notes are to be deemed such, the bank may deduct the whole interest for the time they have to run. This is only an anticipation of funds and not usury. Bank of Alexan- dria V. Mandemlle, 1 Cranch, 552. But the privilege given to a bank, in its charter, to discount upon mone3^s deposited for safe keeping, does not extend to special deposits. Foster v. Essex Bank, 17 Mass. 479. Where one borrowing money at a bank has an opportunity and is able to count the money himself, but does not, and accepts the count of thfe bank officer as a performance of the contract of loan, then, although such acquiescence and acceptance will not be conclusive upon him, if there be, in fact, a mistake, yet the courts should require clear and satisfactory proof to open the transaction and recover for such mistake. And the burden of showing a mistake rests upon the party seeking to recover. First Nat. Bank v. Haigld, 55 111. 191. An agreement by the president and cashier of a bank that the indorser of a promissory note shall not be liable on his indorse- ment, does not bind the bank. Bank of the United States v. Dunn, 6 Pet. 51. All discounts are made under the authority 616 BANKS AND BANKING. of the directors, and it is for tliem to fix any -conditions whicb may be proper in loaning money. lb. § 24. Collectious by banks and bankers. When a note is depos- ited with a banlv for collection, and no special agreement is made, the contract to be implied is one of agency merely, and the duties and liabilities of the bank are those of an agent of tlie holder or depositor. Montgomery County Bank v. Albany City Bank, 7 N. Y. (3 Seld.) 459 ; Bank of Mobile v. Hug gins, 8 Ala. 206 ; Alley v. Rogers, 19 Gratt. (Va.) 366. But in no sense is the bank the agent of the maker of the note. And a maker, who pays his note at bank, cannot recover back the payment from the bank on the ground that it has failed to account to the owner. Smith v. Essex Co. Bank, 22 Barb. (N. Y.) 627; see Runyon v. Latham, 5 Ired. L. (N. C.) 551. The fact that a bank, receiving paper for collection, may rea- sonably expect that, according to the usual course of business, the proceeds may lie in their hands a longer or shorter period, is a sufficient consideration for their undertaking to collect- Smedes v. Utica Bank, 20 Johns. 372. See Thompson v. Bank of the State, 3 Hill (S. C), 77. § 25. Liability of collecting bank. A bank receiving a bill or promissory note for collection, in the usual course of business, is bound to use reasonable skill and diligence in making the collection {Fabens v. Mercantile Bank, 23 Pick. [Mass.] 330) ; and whether the bill or note be payable at its counter or else- where, the bank is held liable for any neglect of duty occurring in its collection, by which any of the parties are discharged, whether of the officers and immediate servants, or other agents of the bank, or its correspondents, or agents employed by such correspondents. Ayrault v. The Pacific Bank, 47 N. Y. (2 Sick.) 670; S. C, 7 Am. Rep. 439; ante, 244. But see I)aly\. Butchers and Drovers'' Bank, etc., bQ Mo. 93. This general liability may be varied by express contract or by implication arising from general usage, but the practice or usage of banks adopted for their own convenience in the transaction of their business, cannot vary the contract between them and their dealers. lb. See Croio v. Mechanics and Traders'' Bank, 12 La. Ann. 692 ; Bank of Montgomery v. Knox, 1 Ala. 148 ; Montgomery County Bank v. Albany City Bank, 7 N. Y. (3 Seld.) 459. In accordance with the rule above stated, it is held that if a bank employs a notary to present the note for payment, and to give the proper noticesi to charge the parties, the notary is the ag'-iut of the bank, and BANKS AND BANKING. 517 not of the depositor or owner of tlie paper, and the bank is liable for any neglect of duty by him, by which any of the par- ties are discharged. Ayrault v. The Pacific Bank, 47 N. T. (2 Sick.) 570; S. C, 7 Am. Rep. 489; ante, 244. But see, contra, Bawl- ing V. Art?Lur, 84 Miss. 41; Citizens^ Bank v. Howell, 8 Md. 530; Daly V. Butchers and Broilers' Bank, etc., 56 Mo. 93; Wingate v. Mechanics^ Bank, 10 Penn. St. 104 ; Mtna Ins. Co. v. Allen Bank, 25 111. 243. § 26. Employing second bank. Bills of exchange payable at distant places, and left with a bank for collection, are presumed to be intended to be transmitted to, and collected by, suitable sub-agents at the places where payable ; since it cannot be expected that a bank will employ one of its officers to journey about and collect such bills. It has, therefore, been held that, in such case, as in the case of bills exj)ressly left with a bank for transmission only, if the bank in good faith employs suitable sub-agenis for collection, it is not liable for their neglect or default. Bank of Washington v. Triplett, 1 Pet. 25 ; Mechanics^ Bank v. Earp, 4 Rawle (Penn.), 384; Fahens v. Mercantile Bank, 23 Pick. (Mass.) 330; Daly v. Butchers and Droxers'' Bank, etc., 5Q Mo. 93 ; ante, 251. An opposite doctrine is, how- f-ver, held in New York. Allen v. Merchants' Bank, 22 Wend. 215 ; Ayrault v. T^te Pacific Bank, 47 N. Y. (2 Sick.) 570 ; S. C, 7 Am. Rep. 489. And see Young v. Noble, 2 Disney (Ohio), 485. Ante, § 25 ; ante, 251. § 27. Liability of second bank. The ordinary course of busi- ness in transmitting paper from a bank holding it to another bank for collection, does not give the bank employed to collect any better title to the paper or its proceeds, than that of the original bank. And unless there are special circumstances tending to constitute the collecting bank an owner for value, it holds the paper subject to any rights of one showing himself to be the true owner, or any equities or defenses of the maker, which would be available against the principal bank. Commercial Bank of Clyde V. Marine Bank, 1 Abb. Ct. App. (N. Y.) 405 ; S. C, 3 Keyes, 337 ; 6 Abb. N. S. 33 ; 1 Trans App. 302 ; 37 How. 432 ; Dicker son v. Wason, 47 N. Y. (2 Sick.) 439 ; S. C, 7 Am. Rep. 455 ; Dod v. National Bank, 59 Barb. 265 ; Quebec Bank of To^ ronto v. Weyand, 2 Cinn. (Ohio) 538. See First Nat. Bank v. Bache, 71 Penn. St. 213; Arnold v. Macungle Savings Bank, id. S?87- The collecting bank is bound to present the bill or note for payment, and if not paid at maturity, to give due notice of 518 BANKS AND BANKING. the dishonor to the bank from which the note was received ; but it is not required, in the absence of express contract or usage, to give notice to any other party to the note. Phip2?s v. Millbury Banli, 8 Mete. (Mass.) 79 ; State Baiik v. BanJc of the Capitol, 41 Barb. 343. But see Smedes v. Baiik of Utica, 20 Johns. 372. Money collected by one bank for another, placed by the col- lecting bank with the bulk of its ordinary banking funds and credited to the transmitting bank in account, becomes the money of the former. Hence, it is held that any depreciation in the specific bank bills received by the collecting bank, which may happen between the date of the collecting bank' s receiving them and the other bank's drawing for the amount collected, falls upon the former. Marine Bank v. Fulton Bank. 2 Wall. 252. That a bank may recover from another bank, employed by it to collect a note, a sum of money paid out by mistake of fact, see Union Nat Bank v. mxtli Nat Bank, 43 N. Y. (4 Hand) 452. A Cincinnati banking firm, Y. & P., after receiving from the owner a bill of exchange, and undertaking, gratuitously, to send it for collection to a bank in New York, where payable, and pay over the proceeds to the owner, ordered the bank when the bill was paid to place the proceeds to their general accounts, which the bank did, but failed before the money was drawn by Y &• P. It was held that Y. & P. were liable to the owners for the proceeds. The bank became their agent in the collection. Young v. NoMe, 2 Disney (Ohio), 485. § 28. Powers and duties of cashier. In all transactions in which a bank may lawfully engage, the cashier is its managing agent, and speaks for the corporation. Caldwell v. Mohawk, etc., Bank, 64 Barb. 333. He is the general executive officer to manage the concerns of the bank, in all things not peculiarly committed to the directors. Blssell v. First Nat Bank, 69 Penn. St. 415 ; ante, 221. His acts, to be binding upon the bank, must be done within the ordinary course of his duties. His ordinary duties are to keep all the funds of the bank, its notes, bills and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He usually receives, directly or through the subordinate officers of the bank, all moneys and notes of the bank, delivers up all discounted notes and other securities, when they have been paid, draws checks to withdraAv the funds of the bank, when they have been deposited, and, as the executive officer of the bank, transacts most of its business. United States v. City Bank of BANKS AND BANKING. 51& Columbtis, 21 How. 356 ; Bank of Metropolis v. Jones, 8 Pet. 12 ; State v. Commercial Bank, 14 Miss. (6 Smed. & M.) 218 ; Uyan v. Dunlap, 17 111. 40 ; Bank of Kentucky v. Schuylkill Bank, 1 Pars. Sel. Cas. (Penn.) 180, 243. He is the financial officer of the bank, and his agreements in behalf of his princi- pal, in all matters relating to its business of discounting and banking, are binding upon it to the same extent as if made by a resolution of the board of directors. Wakefield Bank v. Trues- deV, oo Barb. 602. But the acts of a cashier are only binding upon the bank when he acts within the scope of his " ordinary duties." And this is held not to comprehend a contract made by a cashier, without an express delegation of power from a board of directors to do so, which involves the payment of money, unless it is such as has been loaned in the customary way {JJ/iiied States v. City Bank of Columhus, 21 How. 356) ; nor can a cashier purchase or sell the property of, or create an agency of any kind for, a bank, without authority so to do (lb.) ; and he has no authority, upon a note being offered for discount, to bind the bank by his declaration to a person about to become an indorser on it, that he will incur no risk or responsibility by his becoming an in- dorser upon such discount. Bank of Metropolis Y.Jones, 8 Pet. 12 ; see Merchants" Bank: v. Marine Bank. 3 Gill. (Md.) 96 ; Harrishurg Bank v. Tyler, 3 Watts & S. CPenu.) 373. So the general powers of a cashier do not include an authority to bind tlie bank to indemnify an officer for levying upon property on an execution in favor of the bank ( Watson v. Bennett, 12 Barb. 196) ; and the president and cashier of a bank have no power as such to execute a mortgage on the real estate of the corporation yLpogett v. New Jersey Manuf. and Banking Co., 1 N. J. Eq. 441) ; nor is either one of them empowered, mrtiite officii, merely and without express authority from the board of directors, to release the maker of a note, payable to and held by the bank, from his legal liability on such note i Hodge v. National Bank, 22 Gratt. [Va.] 51) ; nor has the cashier, as such, any authority in another State, to settle an account, taking private notes and drafts, and giving a receipt in full. Manhattan Life Ins. Co. v. Farmers', etc., Nat. Bank, 1 Biss. 146. He may, however, in virtue of his general employment, borrow on behalf of the bank. Barnes v. Ontario Bank, 19 N. Y. (5 Smith) 152 ; Ballston Spa Bank v. Marine Bank, 16 Wis. 120. And the acts of a cashier of a bank in pursuance of authority from the board of directors, 520 BANKS AND BA^s^KING. altliougli in violation of tlie law of its existence, bind the bank. Hag erstown Bank y. London, etc., Soc, 3 Grant's Cas. (Penn.) 135; Badger v. Bank of Cumberland, 26 Me. 428. So, if the direct- ors, either through inattention or otherwise, suffer the cashier to pursue a particular line of conduct for a considerable period, without objection, the bank will be bound by his acts. Caldwell V. Moliawk, etc., Bank, 64 Barb. 333. The cashier of a bank is bound to exercise reasonable skill and ordinary care and diligence in the performance of his duties. Commercial Bank of Albany v. Ten Eyck, 48 N. Y. (3 Sick.) 305. In the absence of fraud or collusion, he is not liable to the bank for an act done under the direction of its president, the manag- ing officer, and where the circumstances do not disclose the ab- sence of due care and diligence upon his part. Thus, where the transaction is in reality a loan upon sufficient security, if loss is sustained, a cashier is not liable for permitting it to be done in the form of an overdraft. lb. Where a cashier applies the notes of the bank to his own use, he is liable for the full nominal amount, and cannot avail himself of their depreciation. Pendleton v. Bank of Kentucky^ 1 T. B. Monr. (Ky.) 177. BILLS OF LADING. 521 CHAPTER XXIII. BILLS OF LADING. TITLE I. OF THE EIGHTS^ DUTIES, LIABILITIES AND REMEDIES OF PARTIES TO BILLS OF LADING, OR TO INDORSEES OR HOLDERS OF THEM, OR OF POSSESSORS OF THE PROP- ERTY IN THEM. ARTICLE I. GEXERAL PRIXCIPLES RELATING TO BILLS OF LADING. Section 1. Nature of a Ml of lading. A bill of lading is a document that has been in general use among all commercial nations from the earliest times, and it is briefly defined to be the written evidence of a contract for the carriage and delivery of goods sent by sea for a certain freight {Mason v. LicJcbarrow, 1 H. Bl. 359) ; or it forms the contract between the consignor and the carrier for the transportation of the goods. Grace v, Adams, 100 Mass. 505. A more extended definition, and one approved by the courts is, that the bill of lading is a written acknowledgment, signed by the master, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed, to the described place of destina- tion, and there to be delivered to the consignee or parties therein designated. Abbott Ship. 823; and see O'Brien v. Gilchrist, 34 Me. 558 ; The Delaware, 14 Wall. 600. Some writers give it as an example of an instrument which partakes of a two-fold character ; that is, it is a receipt as to the quantity and descrip- tion of the goods shipped, and a contract to transport and deliver the goods to the consignee or other person ther^^in designated, and upon the terms specified in the same instrument. lb. The Mayflower, 3 Ware, 300 ; Cafiero v. Welsh, 1 Leg. Gaz. Rep. (Pa.) 121 ; Sack v. Ford, 13 C B. (N. S.) 100 ; Adams v. Packet Co.^ 5 id. 492 ; Wolfe v. Myers, 3 Sandf. (N. Y.) 7. And it is held that any instrument, however informal, which has tliese character- istics, will take effect as a bill of lading. See Wayland v. Mosely^ 5 Ala. 430 ; Doics v. Greene, 24 N. Y. (10 Smith) 638 ; Hawls v. Vol. I. — 66 52J BILLS OF LADING. Desliler, 4 Abb. Ct. App. (N. Y.) 12, 19 ; S. C, 3 Keyes, 572; Li debar row v. Mason, 1 Sm. Lead. Gas. 900. A bill of lading is called a maritime contract — a sea docu- ment — and it has been questioned whether a receipt given by a carrier for goods or merchandise placed in his hands for trans- portation from one part of the same country to another, along the line of a canal or railroad, is a bill of lading in the sense of the commercial law. See Bryans v. Nix, 4 Mees. & Wels. 775 ; Uolhrook v. Yose, 6 Bosw. (N. Y.) 76, 109 ; 1 Sm. Lead. Cas. 900. But this doubt is said to have but little foundation, and is im- pliedly excluded by the decisions in this country, which treat the legal effect of instruments of this description as the same, whether the property which they represent is carried by land or across the ocean. lb. Bows v. P err in, 16 N. Y. (2 Smith) 325 ; Grace v. Adams, 100 Mass. 505 ; Blade v. CMcago, etc., R. B,., 10 Wis. 505 ; Doios v. Bush, 28 Barb. 157. § 2. Who may make them. The bill of lading must be signed by the master, or by some one authorized by him [Comll v. Hill, 4 Denio [N. Y.], 323 ; Wolfe v. Myers, 3 Sandf. [N. Y.] 7) ; and a v/riting, which is, in form, a bill of lading, but signed only by the consignor, is not a bill of lading. Gage v. Jaqueth, 1 Lans. (N. Y.) 207 ; but see Bows v. Greene, 32 Barb. 490. By a usage recognized, however, in some of our commercial cities, the bill of lading is signed and delivered in the counting-room of the own- ers by a clerk of the owner. And a bill of lading signed by the clerk of a canal boat line, in the name of the owners, was held a valid bill of lading. Bows v. P err in, 16 N. Y. (2 Smith) 328. The signature of the master would seem to be important, only as representing the owner. lb. See Putnam v Tillotson, 13 Mete. (Mass) 517 ; Coosa Biver Steamboat Co. v. Barclay, 30 Ala. 120 ; Boios V. Greene, 30 Barb. 490 ; HolbrooJc Y.Vose, 6 Bosw. (N. Y.) 76, 110. § 3. To whom given. Bills of lading are usuall}^ made out in sets of three One is retained by the consignor, one is sent either with the goods or by a separate conveyance to the consignee, and the master should always retain one for his own use. See The Belaioare, 14 Wall. 579, 596 ; Covill v. Hill, 4 Denio, 323, 330. §4. Form and requisites. A bill of lading should state, among other things, by whom the goods are shipped, and where, and to whom they are to be delivered, and all its statements should be exactly accurate. Such an instrument acknowledges the bail- ment of the goods, and is evidence of a contract for the safe cuS' BILLS OF LADING. f23 tody, due transport, and right delivery of the same, upt)n the terms, as to freight, therein described, the extent of the obliga- tion being specified in the instrument. See Knox y. The Ninetta^ Crabbe, 584; Dicker son v. Seelye, 12 Barb. 99 ; 0''Brien v. Gil- christ, 34 Me. 554. Contracts for the freighting of goods on our canals and railroads are usually less full and formal than when the property is to be carried by sea ; but they must have all the essential qualities or else they cannot have the effect of bills of lading. Comll v. Hill, 4 Denio, 330 ; Wolfe v. Myers, 3 Sandf. 7. See Daws v. Perrin, 16 N. Y. (2 Smith) 328. The master is not bound to specify the freight in a bill of lading. The Mayflc^oery 3 Ware, 300. Regularl}^, the goods ought to be on board before the bill of lading is signed. The Loon, 7 Blatchf. 244 ; Lickharroio v. Mason, 2 T. R. 63, 75. But if the bill of lading, through inad- vertence or otherwise, is signed before the goods are actually shipped, as if they are received on the wharf or sent to the ware- house of the carrier, or are delivered into the custody of the master or other agent of the owner or charterer of the vessel, and are afterward placed on board, as and for the goods embraced in the bill of lading, it is clear that the bill of lading will operate on those goods as between the shipper and the carrier by w^ay of relation and estoppel, and that the rights and obligations of all concerned are' the same as if the goods had been actually shipped before the bill of lading had been signed. The Eddy, 5 Wall. 495 ; Rowley v. Bigelow, 12 Pick. (Mass.) 307 ; Tlie Dela- ware, 14 Wall. 579, 600. See The Peytona, 2 Curtis (C. C), 21; Graham v. Ledda, 17 La. Ann. 45. AVhere the goods of a consignment are not all sent on board at the same time, it is usual for the master, mate or other person in charge of the deck, and acting for the carrier, to give a receipt for the parcels as th^y are received ; and when the whole con- signment is delivered, the master, upon the receipt being given up to him, makes out the bill of lading in the usual form. He should be careful, however, not to give a bill of lading until the receipts are given back to him ; for if he does, he will render himself doubly liable {Gosling v. Birnie, 7 Bing. 339 ; Keyser v. Harheck, 3 Duer [N. Y.J, 373; Merc. Mat Lis. Co. v. Chase, 1 E. D. Smith [N. Y.], 115 ; Bryans v. Nix, 4 Mees. & Wels. 775) ; as he would also do, by giving two bills of lading for the same goods to different persons. Stille v. Traverse, 3 Wash. (C. C.) 43. § 5. Duration and currency. A bill of lading remains in force DM BILLS OF LADING. until there has been a complete delivery of the goods thereunder to a person having a right to receive tliem. Meyer stein v. Bar- her, L. R., 2 C. P. 38 ; S. C. affirmed, id. 661. But while this is the general rule, there is nothing iiiial or irrevocable in the na- ture of a bill of lading. The owner of the goods may, therefore, change his purpose before the delivery of the goods themselves or of the bill of lading to the party named in it, and may order the delivery to be to some other person, to B instead of to A. Mitchell V. Ede, 11 Ad. &E1 888, 902 ; S, C, 3 P. & D. 513. But when goods have been put on board a ship to be conveyed on freight, and bills of lading have been signed by the master, the owner of the goods cannot, before the sailing of the ship, insist on their being re-delivered to him without paying the freight that would become due for their carriage, and indemnifying the master against the consequences of his signing the bills of lading. Tindall v. Taylor, 4 El. & Bl. 219; S. C, 24 L. J., Q. B. 12. § 6. Negotiability. A bill of lading is frequently called a *' negotiable instrument," from the resemblance it bears, in some respects, to a promissory note payable to order. LicJcharrow v. Mason, 2 T. B. 63 ; The Water Witch, 1 Black, 494 ; Jenkyns v. Ushorne, 7 Man. & Gr. 678, 698 ; McCants v. Wells, 4 Rich. N. S. 381. But it is now settled that, properly speaking, a bill of lading is not a negotiable, but only a quasi negotiable instru- ment. See Stanton v. Eager, 16. Pick. (Mass.) 467, 474 ; Moio- leyy. Bigelow, 12 id. 307, 314; Saltusv. Everett, 20 Wend. 267, 280 ; Becan v. SJiipper, 35 Penn. St. 239. The word "assigns" is used, and not the word " order." At common law the mere use of the former word would not make a cJiose in action transferable ; but the law merchant establishes an exception in favor of bills of lading, so that by their indorse- ment and delivery an indorsee may sustain an action against the owner or master as the prima facie owner of the goods therein speciiied. But he cannot, generally, bring the action on the bill of lading in his own name. Thomjyson v. Bominy, 14 Mees. & Wels. 402 ; Bows v. Cohh, 12 Barb. 310 ; Lineker v. Ayeshford, 1 Cal. 75 ; Blanchard v. Page, 8 Gray (Mass.), 297. See Tindal v. Taylor, 4 El. & Bl. 219 ; S. C, 28 Eng. L. & Eq. 210, 216. In admiralty, the assignee may, however, sue in liia own name, Cohh v. Hoioard, 3 Blatchf. (C. C.) 624. And see The Vaughan, 14 Wall. 258; The Thames, id. 98; McKinlayy. MorrisJi, 21 How. 355. BILLS OF LADING. 52t And wlieii tlie common-law rule has been clianged by a statute. as where it authorizes an action to be brought in the name of the real party in interest, the party beneficially interested may sue in his own name. In New York, and in several other States, this rule prevails under the provisions of the Codes of Procedure. Goods will not pass to third parties by the mere delivery of a bill of lading without indorsement ; so the operation of the bill may be qualified and restricted by a conditional indorsement. Mitchell V. Ede, 11 Ad. & El. 90.3 ; Aclterman v. Humplirey, 1 C. & P. 57. § 7. Exemption of risks. The rule is now well established that the signing of a bill of lading, acknowledging to have leceived the goods in question in good order and well conditioned, is prima facie evidence that, as to all circumstances which were open to inspection and visible, the goods were in good order; but it does not preclude the carrier from showing, in case of loss or damage, that the loss proceeded fi-om some cause which existed, but was not apparent when he received the goods, and which, if sliown satisfactorily, will discharge the carrier from liability Nelson v. Woodruff, 1 Black, 1.5H ; Hastings v. Pepper, 11 Pick. • (Mass.) 41 ; RicTiards v. Doe, 100 Mass. 524 ; TVie Others, 3 Bt-n 148. But in case of such loss or damage the presumption of law is that it was occasion<^d by the act or default of the carrier, and of course the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods for carriao-e, and for which he is not responsible. Hastings v. Pepper, 11 Pick. (Mass.) 41. In other words, after the damage to the goods has been established the burden lies upon the respondent to show that it was occasioned b}^ one of the perils from which they were exempted by the bill of lading. Clark v. Barnioell, 12 How. 272. And see Hooper v. Ratlibone, Tanej^, 519 ; The Oriflamme, 1 Sawyer, 176; Transportation Co. V. Downer, 11 Wall. 129; CoUy. M' Mechan^ 6 Johns. 160 ; The Juniata Paton, 1 Biss. 15 : Bissell v. Price, 16 111. 408; Grieffx. Switzer, 11 La. Ann. 324. But if the bill of lading contains the clause "loss by breakage or leakage ex- cepted," this rule is changed, and under such a bill the shipper, in order to recover for leakage, must make affirmative proof of negligence on the part of the carrier. Thomas v. Ship JSforninQ Glory, 13 La. Ann. 269 ; The Invincible, 1 Low, 225 ; Ohrloff v. Briscall, L. B,., 1 P. C. 231. Where goods were laden on board a ship, the bill of lading containing an exception of "the perils of the seas," and the 526 BILLS OF LADING. ship ran foul of another ship without any fault in the master oi either, it was held to be an injury by the perils of the sea within the exception. Buller v. FlsTter^ Peake's Ad. Cas. 183. But it is otherwise if the loss of goods occur by reason of a collision caused by the gross negligence of the master or crew. Lloyd v. General Iron Screw Collier Company^ 3 H. & C. 284. So, the explosion of a boiler on a steam vessel is held not "one of the perils of navigation," within the usual exception in a bill of lading. Tlie MohawJc, 8 Wall. 153. It is stated as a general principle, tliat if the bill of lading is accepted by the consignor without objection to its terms, any conditions which it may contain, restrictive of the carrier's lia- bility, if such as the law will allow to be made by an express contract, become binding upon him. Or ace v. Adams, 100 Mass. ^05. See Bostwlck v. Baltimore, etc., R. JR.. Co., 45 N. Y. (6 Hand) 712. And this principle has been applied to an ordinary express receipt, given by an express company, and containing a stipulation that the company sliould not be liable for any loss, etc., occasioned by the dangers of railroad transportation, or ocean or river navigation, or by fire or steam. lb. See 2^ost. § 17; Farnliam v. Camden, etc., R. R. Co., 55 Penn. St. 53. § 8. Eights of sliipper of property. The delivery of a biil of lading should be as effectual as the delivery of the goods them- selves. Ileyerstein v. Barber, L. R., 2 C. P. 38, 44. But in order to render the bill of lading equivalent to the possession of the goods which it represents, it must be obtained from the true owner, or from some one duly authorized by him, or by virtue of some act on his part which justifies the belief that such authority has been given. Wester7i Trans. Co. v. Marshall, 24 N. Y. (10 Smith) 638. And the unauthorized delivery of a bill of lading by the master of a vessel, or by an agent to whom it has been intrusted for a temporary or special purpose, or with instructions not to deliver it except on terms which are not ful- filled, followed by its indorsement to a bona jide purchaser, will not raise the title of the latter higher than that of the indorser, or preclude the vendor from stopping the goods in transitu, or from rescinding the contract. lb.; Craven v. Ryder, 6 Taunt. 433 ; Blossom v. Champion, 37 Barb. 554 ; Lickharrow v. Mason^ 1 Sm. Lead. Cas. 900 ; Decan v. Shipper, 35 Penn. St. 243. § 9. Rights of indorsee (u* Ijolder. The delivery of a bill of lading indorsed puts it in the power of the indorsee to transfei; the property to a bona, fide ])ui'chaser for a valuable consideration, BILLS OF LADING. 527 and deprives the original owner of any riglit of stoppage in tran- situ. Jenkyns v. TJsborne, 7 Man. & Grang. 678; 13 L. J., C P. 196; Neiosom v. Thornton, 6 East, 41 ; Dows v. Oreene, 24 IST. Y. (10 Smith) 638. When the goods are shipped or afloat the bill of lading represents them, and the indorsement and delivery of it has exactly the same eflTect as the delivery of the goods themselves, when the intention is to transfer thereby the title to the goods, or to pledge them by way of secarity for advances made, or other- wise. Meyer stein v. Barber, L. R., 2 C. P. 661 ; Indiana, etc.^ Bank v. Colgate, 4 Daly (X. Y.), 41 ; Marine Bank v. Wright, 48 jN". Y. (3 Sick.) 1 ; First Nat. Bank of Oincinnati v. Kelly, 57 N. Y. (12 Sick.) 34. So, in the absence of a bill of lading, the intention to vest the property in the goods in the consignee upon the shipment, so as to give him a constructive possession, subject only to the equitable right of stoppage in transit, may be inferred from other documents, such as receiyjts, or orders, or by the correspondence which has taken place between the par- ties. Heard v. Brewer, 4 Daly (N. Y.), 136; Philadelphia, etc., R. R. Co. V. Barnard, 3 Ben. 39. See Stanton v. Eager, 16 PiL-k. (Mass.) 467 ; Fragano v. Long, 4 B. & C. 219 ; Brandt v. Bowlhy, 2 B. & Ad. 932. ^ 10. Who is a bona fide holder. The transfer of a bill of lading must be for value, and not a mere securit}^ for an antecedent debt, Lee V. Kimball, 45 Me. 172 ; Holbrook v. Vose, 6 Bosw. (N. Y.) 76, 107 ; and see Harris v. Heard, 6 Duer (N. Y.), 606 ; Dur- horroio v. McDonald, 5 Bosw. 150. And the value must be given in good faith, without notice of any fact or circumstance showing that the indorsement is in fraud of the original vendor. The Argentina, 1 L. R., Adm. 370 See Holbrook v. Vose, 6 Bosw. (iST. Y.) 67, 109. But the mere fact that goods which are in transitu were bought on credit and have not been paid for, is no reason why they should not be resold, because this may be the best method of procuring the means to pay, and it may fairly be presumed the bill of lading was transmitted to the purchaser with timt view. lb.; Ciimmings v. Brown, 9 East, 506 ; 2 Sm. Lead. Cas. 890. Notice of the vendee's insolvency, and that the vendor has not been paid, would seem to be sufficient to put third persons on their guard, and render any title that they may acquire by the indorsement of the bill liable to be defeated by a subsequent stoppage. lb.; The Argentina, 1 L. R., Adm. 370 ; Holbrook v. Vose, 6 Bosw. (N. Y.) 76, 109. But this can be true only while the transit continues, and has no application after the 528 BILLS OF LADING. cargo arrives. Stevens v. Wlieeler^ 21 Barb. 658. The unpaid vendor cannot, therefore, reclaim his property from an assignee for the benefit of his creditors, who lias succeeded in obtaining an actual or constructive possession, although the conduct of the latter shows that he knew that the vendee was insolvent, and did not pay for the goods. Jones v. Jones, 8 Mees. & Wels. 431 ; Wliitehead v. Anderson, 9 id. 518, 534. So, it has been held that one who buys or makes advances bona fide on the faith of an indorsement of the bill of lading by a fraudulent vendee, will acquire a good title against the original vendor {Dows v. Greene, 32 Barb. 493 ; Rowley v. Bige- low, 12 Pick. [Mass.] 387) ; and this on the ground that sales induced by fraud are voidable, not void, and cannot be set aside to the injury of an innocent purchaser. The principle is said not to apply, however, where the bill of lading itself is procured by deceit or artifice {Dows v. Perrin, 16 N. Y. [2 Smith] 325 ; Barnard v. Oamphell, 55 N. Y. [10 Sick.] 456, 462) ; or where the fraud consists in an assertion that the purchaser is acting as igent for a third person, who did not authorize him to buy. Decan v. Shipper, 35 Penn. St. 239, 244; 2 Sm. Lead. Gas. 890. But see Keyser v. HarhecJc, 3 Duer (N.Y.), 391 ; Rowley v. Bige- low, 12 Pick. (Mass.) 387. § 11. Right of vendor or consignor to stop in transitu. It was settled, as a rule of commercial law, in the important case of Liclcbarrow v. Mason, 6 East, 21 ; S. C, 2 T. R. 63 ; 1 H. Bl. 357 ; 2 id. 211 ; 5 T. R. 317, 683, that the right to stop goods while on their way to an insolvent buyer, may be defeated by a sale to a third person, attended by a transfer or indorsement of the bill of lading ; and this rule has been frequently recognized since as the established law by the courts, both in England and in this country. See Ourney v. Belirend, 3 El. & Bl. 622 ; Pennell v, Alexander, id. 282 ; Meyersteln v. Barber, L. R., 2 C. P. 38 ; ITewsom v. TJiornton, 6 East, 17 ; Jordon v. James, 5 Ham. (Ohio) 88, 219 ; Lee v. Kimball, 45 Me. 172 ; Sclmmaker v. Ely^ 24 Penn. St. 521 ; Holbroolc v. Yose, 6 Bosw. (N. Y.) 76, 109 ; Doios V. Greene, 24 IS". Y. (10 Smith) 638. So, the same effect will follow from a loan or advance on the faith of such an indorse- ment, or from any other transaction which, though not a sale in the ordinary sense of the term, yet places the indorsee in the position and invests him with the rights of a purchaser for value. lb.; Blossom v. Champion, 28 Barb. 217 ; Liclcbarrow V. Mason, 1 Sm. Lead. Gas. 889. The transfer of the bill of BILLS OF LADING. P2U lading, under such circumstances, gives rise to an equity which is superior to that of the vendor, and may net only preclude the latter from arresting the transit of goods which had been forwarded, but from making payment a condition precedent to the delivery of merchandise which is still in his own keeping. lb.; Doios V. HusJi, 28 Barb. 157. See Walter v. Boss, 2 Wash. (C. C.) 283 ; Winsloio v. Norton, 29 Me. 419 ; Conrad v. Atlantic Ins. Co., 1 Pet. 386. The assignment of the bill of lading in bona fide furtherance of a contract, conferring an interest in the goods for a valuable consideration, has, as it regards the question of stoppage in transitu, the same effect at law that an actual delivery of the goods would have had. Gardner v. Rowland, 2 Pick. 599 ; Indiana, etc., Bank v. Colgate, 4 Daly (N. Y.), 41 ; Meyerstein V. Barber, L. R., 2 C. P. 45 ; Tlie Tlianies, 14 Wall. 98, 106. But the mere receipt of the bill of lading by the original consignee and vendee and remaining in his hands, unindorsed, does not in any way interfere with or defeat the right of stoppage in tran- situ of the consignor and vendor. Tucker v. Humjphrey, 4 Bing. 516, 522 ; Stanton v. Eager, 16 Pick. (Mass.) 474 ; Scliol- field V. Bell, 14 Mass. 40. § 12. Who not a holder for value. A bill of lading, given by the master before the goods are put on board the ship, is held to be fraudulent, and the indorsement of the bill will convey no property in the goods, even to a bona fide indorsee {Lickbarrow V. Mason, 2 T. R. 63, 75. See ante, § 4) ; and much less if the indorsee knows that the transaction on the part of the consignee is fraudulent and dishonest. Thus, if he connive with the latter in contravening the actual terms of the sale, or the ]-ights of the consignor, he will stand in no better position than the consignee or indorser, and his claim Avill not be allowed to defeat the con- signor's right of stoppage in transitu. Salomons v. Kissen, 2 T. R. 674 ; Cuming v. Brown, 9 East, 506 ; Stanton v. Eager, 16 Pick. (Mass.) 467, 476. § 13. Pledging. The mere pledging of a bill of lading hj the vendee as a security for a debt does not operate absolutelj'' to defeat the vendor's right of stoppage in transitu. Chandler v. Fulton, 10 Tex. 2. The vendor may still assert his interest iu the goods, subject to the rights of the pledgee, and will be enti- tled, at least in equity, to the residue, after satisfaction of the pledgee's claim. See Coventry y. Gladstone, L. R., 6 Eq. 48; Spalding v. Ruding, 6 Beav. 376 ; Matter of Westzinthus. 5 Vol. I. — 67 530 BILLS OF LADING. Barn: & Ad. 817. And in England the vendor's right of stop- page in transitu is not defeated by a transfer of a bill of lading where the consideration for the indorsement is a pre-existing debt {Rodger v. T/ie Oomptoir D' Escompte de Paris, 5 Moore's P. C. [N. S.] 538 ; S. C, L. R., 2 P. C. 393 ; 8 Eng. R. [Moak's Ed.] 209) ; thongh it has been held otherwise in this country. Lee V. Kimhall, 4o Me. 172. § 14. Lien of sliipping agent. A shipping ^agent having a lien on the bill of lading of goods which he has shipped, may, if the lien is not satisfied before they have reached their destination, have the goods brought home in order to retain his lien upon them, and is not liable to an action for so doing. Edioards v. Southgate, 10 W. R. (Eng.) 528. "Where the consideration for the indorsement of the bill of lading by the vendee was the ad- vance of money b}^ the indorsee, it was held that the vendor still retained an equitable right of qitasi stoppage in transitu, sub- ject, however, to the right of the indorsee to be paid his advances. But, if the indorsee has other property of the vendee in his hands, he is bound to repay himself from that ; and if he does not, but retains the goods sold for this purpose, the vendor him- self acquires a lien on such other property for the price of the goods. Chandler v. Fulton, 10 Tex. 2 ; Matter of Westzintlius, 5 Barn. & Ad. 817. § 15. Presentation and production. The bill of lading should be delivered as soon after its arrival as possible, without refer- ence to the arrival or unloading of the goods. Barber v. Tay- lor, 5 Mees. & Wels. 527. After waiting a reasonable time at a foreign port, and no one having produced the bill of lading, the master may deliver the goods into the keeping of some pei-- son until the bill of lading is produced. Howard v. Shepherd, 9 C. B. 297 : 19 L. J., C. P. 249. See Green v. Sichel, 29 id. 213 ; S. C, 7 C. B. (K S.) 747. If A has an equitable title to goods on board a ship, and B, knowing of such title, gets an indorsement of the bill of lading, he cannot recover such goods in an action of trover, but the cap- tain will be justified in delivering the goods to A. Dick v. Lums- den, Peake, 189. § 16. How affected or varied by parol evidence. A bill of lading partakes of the nature both of a receipt and a contract, and, so far as it is a receipt, it has always been held that it was not con- clusive but was open to explanation between the original parties. Bates V. Todd, 1 M. & Rob. 106 ; 0' Brien v. Gilchrist, 34 Me. BILLS OF LADING. 531 554; The Lady FranJclin, 8 AVall. 325; The De.ainare, l-± id, 601 ; The J. W. Brown, 1 Biss. 76 ; Cafiero v. Weuh, 1 Penn. Leg. Gaz. R. 121. Thus, as to the quantity of goods delivered to a carrier, the bill of lading furnishes yrima facie evidence only, and is always open to contradiction and explanation by parol evidence, like any receipt. Abhe v. Eaton, 51 N. Y. (6 Sick.) 410 ; Wo.yland v. Mosely, 5 Ala. 480 ; Bissel v. Price, 16 111. 408. The rules that should govern it in its character of a receipt have been thus stated in a Massachusetts case: First The receipt in the bill of lading is open to explanation between the master and the shipper of the goods. Secondly. The master is estopped, as against a consignee who i.g not a part}^ to the contract, and as against an assignee of the bill of lading, when either has taken it for a valuable considera- tion upon the faith of the acknowledgments which it contains, to den}^ the truth of the statements to which he has given credit b}^ liis signature, so far as those statements relate to matters which are, or ought to be, within his knowledge. Thirdly. When the master is acting within the limits of his authority, the owners are estopped in like manner with him ; but it is not within the general scope of the master's authority to sign bills of lading for any goods not actually received on board. Hoar, J., in Sears v. Wingate, 3 Allen (Mass.), 103. And see Warden v. Oreer, 6 Watts (Penn.), 424 ; Portland BanJc V. Stuhbs, 6 Mass. 425 ; Sutton v. Kettell, 1 Sprague, 309 ; Dickerson v. Seelye, 12 Barb. 102. In its character of a contract, a bill of lading is no more open to alteration or explanation by parol than are other contracts. Wolfe V. Myers, 3 Sandf. (N. Y.) 7; The Lady FranTdin, 8 Wall. 325; Barher v. Brace. 3 Conn. 9. Thus, if the bill of lading state that the property was to go to Liverpool, the master cannot prove that by verbal agreement it was to be sent to London. Wolfe V. Myers, 3 Sandf. 7, 13. Nor is parol evidence admissi- ble to prove an agreement that the vessel might deviate {May v. BahcocJc, 4 Ohio, 334) : and generally such evidence is inadmissi- ble to vary, in any manner, the terms of the bill of lading in its character of a contract (ib.; Shaio v. Gardner, 12 Gray [Mass.], 488 ; Cincinnati, etc., R. R. Co. v. Pontius, 19 Ohio St. 221 ; Cgx v. Peterson, 30 Ala. 608 ; Wliite v. Van KirJc, 25 Barb. 16) ; though it ma}' be admitted in explanation of an ambiguiiy. See ChoiUeau v. Leech, 18 Penn. St. 224 ; Butler v. The Arrow., 632 BILLS OF LADING. 1 IS'ewb Adm. 59 ; Russian Steam Nai\ Co. v, ^dia, 13 C. B (N". S.) 616 ; Barnard v. Kellogg, 10 Wall. 383. A "clean" bill of lading, that is, a bill of lading which is silent as to the place of stowage, imports a contract that the goods are to be stowed under deck. This being so, parol evi- dence of an agreement that they were to be stowed on deck is inadmissible. The Delaware., 14 Wall. 579 ; and see TJie Well- ington, 1 Biss. 279. It has been held that the mere delivery by a shipper, without examination, of a bill of lading, limiting the carrier's liability, and expressing on its face that, by accepting it, the shipper agrees to its provisions, after the goods have been actually shipped under a verbal agreement, does not conclude the plaintiff from showing the actual agreement. The rule that prior negotiations are merged in a subsequent written contract does not apply. Bostwlck v. Baltimore, etc., R. R. Co., 45 N. Y. (6 Hand) 712 ; reversing S. C, 55 Barb. 137 ; Lamb v. Cam- den & Aniboy R. R. Co., 4 Daly (N. Y-), 483. But see Long v. N. T. C. R. R. Co.. 50 N. Y. (5 Sick.) 76 ; HincUey v. JST. Y. Gen. & H. Riv. R. R. Co., 56 N. Y. (11 Sick.) 429 ; Huntington v. Dinsmore, 6 N. Y. S. C. (T. & C.) 195 ; S. C, 4 Hun, 66 ; Collen- der V. Dinsmore, 55 N". Y. (10 Sick.) 200 ; Magnin v. Dinsmore, 56 N. Y. (11 Sick.) 168, in all of which cases the general rule is sustained that where a shipper of property takes from the carrier a bill of lading, receipt or other voucher, expressing the terms and conditions upon which the property is to be transported, the writing, in the absence of proof of fraud or mistake, mast be taken as the evidence, and the sole evidence, of the final agreement of the parties, and by it their duties and liabilities must be regulated. Resort cannot be had to prior parol negotia- tions to vary its terms. See also, ante, 525, § 7, and cases cited. § 17. Legal remedies. An indorsee of a bill of lading has a right, founded on his ownership of the goods, to sustain an action against the owner or master, but he cannot, generally, bring the action on the bill of lading in his own name. See Thorrvpson v. Dominy, 14 Mees. & Welsh. 402; Tindal v. Taylor., 4 El. & Bi. 219 ; ante., 524, § 6. As a general rule, a suit founded upon the express contract contained in the bill of lading, should be brought by the shipper with whom the master contracted, or by the owner of the goods, in a case where the shipper acted as his agent. Berkley v. Watting., 7 Ad. & El. 29. And a consignee or Indorser of a bill of lading has not the right to sue upon the special contract, unlf^ss he is also the shipper or owner of the BILLS OF LADme. 533 goods, for the obvious reason that otherwise no express contract is made with him. Anderson v. ClarJc, 2 Bing. 20 ; Dows v Cobb, 12 Barb. 310; S. C, 10 K Y. Leg. Obs. 161? If bills of lading are presented to the master by two different holders, and he delivers ta one, a right of action against him accrues to the disappointed holder, as it is for the master to inquire who has the best right. The Tigress, 32 L. J. (Ad.) 97 ; 2 Tudor's Lead. Cas. 673. § 18. Equitable remedies. It has been doubted whether a bill of interpleader w^ould lie at the suit of a captain of a trading vessel against a party claiming, not under, but paramount to? the bill of lading, on the ground that delivery, according to the bill of lading, would fully justify the captain. Zoioe and Eich- ardson v. , 3 Madd. 278. In a more recent case,, however, it was thought that such a bill would lie, as the right of possession in chattels may be in one person, and the right of property in another. Warington v. Wlieatstone, Jac. 202. 534 BILLS AND NOTES. CHAPTER XXIV. BILLS OF EXCHANGE AND PROMISSOEY NOTES. ARTICLE L GEIsTERAL PRINCIPLES AND DEFINITIONS. Section 1. In geiieraL Bills of excliange and promissory notes are so much alike, in many respects, that a separate discussion of each subject would lead to a iiseless repetition. For that reason they will be treated of together, though the peculiarities of each will be pointed out with distinctness. In the Urst place a definition will be given of the more important terms which are used in relation to bills and notes. In this definition nothing more is intended to be stated than merely to define the terms employed. But in a subsequent place, the rights and duties of the parties to a bill or note will be discussed and illustrated by a reference to the adjudged cases. A hill of exchange is a written order or request by one person to another, for the payment of a particular sum of money at a specified time, absolutely and at all events, to the person named in the bill as payee. Luff v. Pope, 5 Hill, 413; 7 id. 677. A bill of exchange is sometimes termed a draft in popular lan- guage. Both names signify the same thing, and the same rules of law are applicable to the instrument, by whatever name it may be called. A promissory note is a wTitten promise by one person for the payment of money to another person therein named, at another specified time, absolutely and at all events. A check is an inland bill of exchange drawn upon a bank or a banker, and payable to the bearer or to the order of the payee. The giving and presenting of a check for money, deposited for safe-keeping, operates as a demand of the sum specified in it. Cheney v. Beats, 47 Barb. 523. A check in tlie ordinary general form, which does not describe any particular fund, nor use any words of transfer of the whole or any part of the account stand- ing to the credit of the drawer, is in legal effect a bill of exchange, and does not amount to an assignment of the funds of the drawer in the bank drawn upon. Lunt v. Bank of BILLS AND NOTES. 535 North America, 49 Barb. 221; JEtna National Bank v. Fourth National Bank, 46 N. Y. (1 Sick.) 82 ; 7 Am. Rep. 314. See ante, Banks and Banking. A l)ank hill or note is simply a promissory note, made and issued by a bank or a banker, and payable to tke bearer or demand. Bills of exchange are either foreign or inland; they are for eign when drawn by a person in one State or countrj^ upon a person in another State or country, and they are inland, when both the drawer and the drawee reside in the same State or country, and when both drawn and payable in the same State or country", though accepted abroad. Bills drawn by a resident of one State of the Union upon a resident of another State therein, will be considered a foreign bill, and subject to the rules which are applicable to such bills. Bills and notes are divided into those which are negotiable, and those which are not negotiable. A negotiable instrument is one which may be transferred by indorsement, or delivery, so as to give a right of action to the person to whom it is so indorsed or delivered in his own name, and upon the instrument so trans- ferred. The rules of the common law did not permit ordinary unnegotiable choses in action to be assigned by one person to another, so as to authorize an action in the name of the assignee. But the Code, §§ 111, 112, 113, has changed the rule ; and now every action must be brought in the name of the person who is the real party in interest. The term negotiable instrument has a definite signification in the law merchant. And the meaning of the term has not been changed by the Code. A note payable in chattels may now be assigned, and the assignee may enforce its collection in his own name; but that fact will not render the note a negotiable one. For all purposes, and as to all the rights of the parties to bills and notes, the law in relation to negotiability remains unchanged, except in the single fact that actions may now be brought in the name of the party interested in them. In a bill of exchange, there are usually three original parties, the drawer, the payee, and the drawee, who, after acceptance, becomes the accei:)tor. In a promissory note, there are but two original parties, the maker and the payee. In a bill of exchange the acceptor is in contemplation of law the primary debtor. AVhen a negotiable note has been indorsed by the paj^ee. then tlif'rc occuis a striking resemblance in the relations of the i)artie3 536 BILLS AND NOTES. upon both instruments, althoiigh they are not in all respects identical. The indorser of a note stands in the ifame relation to the subsequent parties to it as the drawer of a bill; and the maker of a note is under the same liabilities as the acceptor of a bill. The maker is the principal debtor in a promissory note, who signs it as such on the face of the note, and promises to pay it when due. The payee is the person to whom a promissory note is made payable, or the person in whose favor a bill of exchange is drawn. An indorser is one who writes his name on a bill of exchange, or a promissory note, or other negotiable paper. He undertakes to be responsible to the holder for the amount of the bill or note, if the latter shall make a legal demand of the payer, and in default of payment give proper notice to such indorser. An indorsee is the person in whose favor an indorsement is made. The Jiolder of a bill of exchange or of a promissory note is the person who is legally in possession of it, either by indorse- ment or delivery, or both, and entitled to receive payment eithei from the drawer or acceptor, or the maker. The drawer is the person who makes a bill of exchange. The drawee is the person to whom a bill of exchange is addressed, and who is requested to pay the amount of money therein men- tioned. The acceptor is the person who agrees to pay a bill of exchange drawn upon him. Acceptance is the act by which the drawee or other person evinces his assent or intention to comply with, and be bound by, the request contained in a bill of exchange to pay the same; or, in other words, it is an engagement to pay the bill when due. An indorsement is the act of writing the indorser' s name upon the back or a bill of exchange or a promissory note. It also signifies the writing of the indorser. An illustration of the use of a bill of exchaLge may render the subject more intelligible. If A, living in New York, wishes to receive one thousand dollars, which await his orders in the hands of B, in London, he applies to C, going from New York to London, to pay him one thousand dollars, and take his draft on B for that sum, payable at sight. This is an accommodation to all parties, A receives his debt for transferring it to C, who carries his money across the Atlan- tic in the shape of a bill of exchange, without any danger or risk in tlic transportation ; and on his arrival at London, lie presents BILLS AND NOTES. 587 tlie bill to B and is paid. This illustration introdaces all the parties to a bill of exchange. A, who draws the bill, is called the draioer, B, to whom it is addressed, is called the drawee^ and on acceptance he becomes the acceptor ; C, to whom the bill is made paj^able, is called the payee. As the bill is payable to C or his order, he may, by indorsement, direct the bill to be paid to D, and in that case C becomes the indorser, and D, to whom the bill is indorsed, is called the indorsee or liolder. It is impor- tant to be remembered that the acceptor of a bill of exchange is the principal debtor, while the indorsers are regarded as mere sureties, and even the drawer of the bill is regarded as a mere surety for the acceptor. The maker of a note and the acceptor of a bill are always the principal debtors so far as the holder of the paper is concerned. The holder, however, may recover the amount of the bill of either or all the parties to it, unless he is himself a party, when he may recover against all who are liable on the paper prior to himself, though he cannot recover as against those who become parties to it subsequently to himself, unless there is some special agreement to authorize it. ARTICLE IL PARTIES. TO A BILL OR XOTE. Section 1. In general. A bill or note is a contract, and the assent of the parties is as requisite in making such a contract as in making any other. There must be legal capacity to assent or the contract will not be binding. See ante^ 82. The presumption is that all persons are capable of contracting, unless they are declared incapable by law. The disability or want of legal capacity is an exception to the general rule, and it must be pleaded and established by evidence to be available as a defense to an action on a bill or note. As a general rule, every person who is capable of making a valid contract in relation to other matters is equally capable of making a valid bill or note. There may be some exceptions to the rule, though they are not numerous. See title Assent, ante^ 82. An infant's note is voidable. See Infanc}'. Cor])orations may make notes if that is necessary to the transaction of their business, and within the scope of their charter. See Corpora- tions. As to notes made by partners, see Partnership. At common law the note of a married woman is absolutely void. But since the statute, which authorizes her to transact Vol. I. —^'$> r>3S BILLS AND NOTES. business on her own account in the same manner that she might do if she were a single female, there cannot be any doubt of her ability to make a valid note or bill, if it is in good faith made and given in the course of the business which the statute author- izes her to transact. Laws of 1860, chap. 90, and as amended, Laws 1862, chajD. 172. See Married Women. An agent may make a bill or note for his principal ; but he must be careful to keep within the limits of his authority or he will render himself personally liable. Ante, 236, 240. ARTICLE III. POEMS AND KEQUISITES OF BILLS A]«fD NOTES, ETC. Section 1. Iii generaL A prominent characteristic of bills of exchange^ promissory notes and of checks is, that they import an absolute promise or order to pay a specified sum of monej'^ to some designated person. And to effectuate the intention of the parties, any promise or order which possesses these requisites will be held to be a valid instrument. Wells v. Brigham, 6 Cush, 6 ; Coursin v. Tedlie's Adm^rs, 31 Penn. St. 506 ; Arnold V. Spraguc, 34 Vt. 402 ; Bates v. Butler, 46 Me. 387. A bill, though not payable to bearer or order, is still a bill of ex- change, lb. Every valid promissory note requires a competent maker, who can make a valid legal promise to pay the money. So, every bill of exchange must be accepted by a person who is legally capable of making such a contract. There must also be a proper person to whom a note is made payable ; and there must not be any uncertainty as to the person to whom it is payable. If no payee is named, or if no person is designated, so that there is no person specified as payee, the note will be void. A note read thus : " I promise to pay to the secretary for tlie time heing of the Indian, etc., Society," and it was held void because no per- son was designated as payee. Storm v. Stirling, 3 Ell. & Bla, 832 ; S. C, Cowie v. Storm, 6 id. 333. The principle of this decision is, that the note was not payable to the person wlio was secretary at the time when the note was made, but to some nnknown person who might be secretary at a future time, when tlie note was payable, which was nine months after date. A bill of exchange was drawn in this form : " Six months after date pay to the order of the treasurer for the time being of the (Jommercial Travelers' Benevolent Institution, the sum of twenty BILLS AND NOTES. 539 pouPxds for value received." This bill was held to be void, and the court said : " I think the true construction of the instrument is. that the acceptor undertakes to pay the amount to the order of the person whoever he may be, who at the time of the maturity of the bill shall be the treasurer of the institution. I take it, that in order to constitute a valid bill of exchange, it is essential that there should be a draw^er, a drawee and a payee ; and although the payee need not be expressly designated by name, still it is essential to the validity of the bill, that he shall be a person who is capable of being ascertained at the time the bill is accepted. He cannot be a person who is not ascertainable at that time, con- sequently, the payee not being an ascertained person at the time of the acceptance, the instrument here sued on is not a valid bill of exchange." Yates v. Nasli, 8 J. Scott, 581, 586. A written promise to pay " to the estate of A, deceased^ and not to any per- son by name, is not a promissory note. Lyon v. 3far shall, 11 Barb. 241 ; see, also. Tittle v. Thomas, 30 Miss. 125 ; Benning- ton V. DinsTTiore, 2 Gill. 348. The cases just cited are distinguishable from anj^ other class of cases which seem to be quite similar. If the note or bill is pay- able to some person who is designated by name, it will be valid, although payable also to some other person as his successor in office. A note was written in this form : "Twelve months after date, I promise to pay to Joseph M. White, Charles A. Davis and Louis McLane, Trustees of the Apalachicola Land Company, or their successors in office, or order," etc. ; and this note was held valid. Dams v. Garr, 6 N. Y. (2 Seld.) 12-1. A note pay- able to " the administrators " of a particular estate has been held negotiable. Moody v. Threlkeld, 13 Ga. 55 ; Adams v. King, 16 111. 169. So, if a note payable to "the steamboat Juda and owners, or order." Moore v. Anderson, 8 Ind. IS. In Davis v. Garr, there were payees designated by name to whom the note might be paid. And, in case of a change of officers, the note would be in legal effect payable to the successors. The contract was complete and legal at the time when it was made, and if any change subsequently occurred as to the persons to whom it became payable, that would not invalidate the note. And see The King v. Box, 6 Taunt. 325. But a note which is payable in the alternative is not negotiable within the statute, as, for instance, if it is made payable to A, or to B and C. Blancken- hagen v. Blundell, 2 Barn. & Aid. 417; Walrad v. Petrie, 4 Wend. 575 ; Musselman v. Oakes, 19 111. 81 ; Osgood v. Pear sort-, 540 BILLS AND NOTES. i Gray, 455 ; CJiilds v. Davidson, 38 111. 437. Siicti a note can- not be declared on as a promissory note within the statute. If, liowever, it purports on its face to be for value received, the setting forth of the note according to its terms is a sufficient statement of the consideration to enable the plaintiff to recover as on a contract. Walrad v. Petrle, 4 Wend. 575 ; Jerome v. Whitney, 7 Johns. 321 ; Ta2yU7i v. Packard, 8 Barb. 220. So, an instrument thus: "On demand, we jointly and severally promise to pay to W. S. and M., or to their order, or the major ])ai-t of them, one thousand pounds," is a valid promissory note, upon which the three payees may maintain an action. Watson V. Emns, 1 H. & Colt. 662. The contingency as to the payee must be apparent on the face of the note, or it will not prevent it from being negotiable. Richards v. Richards, 2 Barn. & Aid. 447 ; Sweeting v. Fowler, 1 Stark. 106. The makers of a promissory note, which, in terms, is payable to their own order, and is by them indorsed, thereby contract with whomsoever may be the legal indorsee when it becomes payable, to pay it to him. Smith v. Gardner, 4 Bosw\ 54. Where a note is made by several persons payable to one of their own number, though payment cannot be enforced at law, as between the original parties, yet if it be indorsed to a third per- son, he may maintain an action upon it. Pitcher v. Barrows, 17 Pick. 361 ; Heywood v. Wright, 14 N. H. 73 ; Ramlo v. Metz, 5 Strobh. 108 ; see, also, Muldrow v. Caldwell, 7 Mo. 663 ; Mur- doch V. Caruthers, 21 Ala. 785. In this State it is declared by statute that notes made payable to the order of the maker thereof, or to the order of a fictitious per- son, shall, if negotiated by the maker, have the same effect and be of the same validity as against the maker and all persons having knowlege of the facts as if payable to bearer. 1 R. S. 721, § 5, Edm. ed. This statute was made for the purpose of obviating a difficulty in the way of the holder, in making title and suing on a note which had not been indorsed by the person to whose order it was made payable. It applies to cases where the maker, who is also payee, negotiates the note without indorsement. Plets v. John son, 3 Hill, 115, Brojstson, J. A promissory note was, by ita terms, made payable to the makers' own order, but they omitted to indorse it. It was delivered by the makers as a premium note upon an open policy to a marine insurance company. That company was authorized "to negotiate premium notes for the BILLS AND NOTES. 541 purpose of paying claims, or otherwise, in tlie regular transaction of its business." They delivered the note in suit, with others, to tlie plaintiff, and had them discounted and received the proceeds A small amount of risks compared with the amount of the note had been taken and premiums earned. The note w^as to cover premiums to be earned. There was no evidence as to the appli- cation of the proceeds of the note by the insurance company. It was held that the note was so negotiated by the makers, by its deliver}^ to the company, as to make it the same in legal effect as if payable to bearer within the statute, that the plaintiffs were bond fide holders of the note, and that they were entitled to recover the whole amount of the note, whatever might be the equities or rights between the makers and the insurance com- pany. Central Baiik of Brooklyn v. Lang, 1 Bosw. 202, and see Brower v. Hill, 1 Sandf. 629, 648. A note payable to a fictitious person or firm is recoverable as payable to bearer under the statute, on proof that it was negotiated by the makers. A note which is made payable to a fictitious person or firm, and is ne- gotiated by the makers is valid, and the holder may recover upon it under the statute, in the same manner as though the note had been made payable to the bearer. Stexens v. Strong, 2 Sandf. 138 ; Flets v. Johnson, 3 Hill, 112. Where a note is made payable to the order of the maker, and he transfers it by indorsement, the note is valid and negotiable, and the holder could have recovered upon it even before this statute. Plets v. Johnson, 3 Hill, 112 ; Smith v. Lusher, 5 Cow. 6S8. See Gale v. Miller, .54 N. Y. (9 Sick.) 536, 538"; Miller v. Weeks. 22 Penn. St, 89 ; Muldroio v. CaldioeU, 7 Mo. 563. Where a bill or note is payable otherwise than to the bearer, it must contain the name of the payee. A promise to pay a given sum on demand for value received.- without saving to whom, has been held to be mere waste paper. Douglass v. Willieson, 6 Wend. 637, 644 ; Gibson v. Minet, 1 H. Bla. 609, 610, Eyke, Ch. B. But a note which is made payable to the person who should tliereafter indorse it is negotiable. United States v. ^Vhite, 2 nil), 59. The court said, page 61 : " The maker of a note may bind him- self to the bearer generally ; and a promise to j)ay such bearer as shall come to the possession of the note in any given mode is but a more limited exercise of the same power. It is like making a note paj-able in blank, which may be filled up by a hona fide holder with his own name ; indeed it is but a more enlarged form 542 BILLS AND NOTES. of the ordinary promise to tlie payee or order, or the order of the payee. If it could have effect in no other way, we should hold it payable to bearer generally, like a bill payable to a fictitious paj'ee or order." A bank check which is niade payable "to the order of bills payable," or "to the order of 1658," cannot be passed by an indorsement, and it is, therefore, in judgment of law, payable to bearer. It stands upon the same ground as a check pa}' able to the order of a fictitious person . WilletsY. Phcenix Bank, 2 Duer, 121 ; Gibson v. Mind, 1 H. Bla. 569 ; and see Leonard v. Mason, 1 Wend. 522 ; O'Donnell v. Smitl), 2 E. D. Smith, 124. To entitle the holder of a note, claiming thereon without the indorsement of the payee, to recover, he must prove affirmatively that the payee is a fictitious person. Maniort v. Boherts, 4 E. D. Smith, 84. A bill or note which is made paj^able to the order of may be filled up by any bearer, with his own name, if he can show that he came regularly by it. Hardy v. Morton, 66 Barb. 527, 533 ; Oratcliley v. Mann, 5 Taunt. 529 ; CrucMey v. Clarence, 2 Maule & Seiw. 90 ; Atwood v. Griffin, 2 Carr. & Payne, 368. A United States treasury note is valid although issued with th»^ name of the payee left in blank. Dinsmore v. Duncan, 57 N. Y. (12 Sick.) 573. When a bill or note is issued with a b^ank for the name of the payee, a hona fide holder has authority to insert his name in such blank. lb. If a promissory note is made pay- able to A B, generally, it is prima facie evidence of a promise to A B, tlie father, and not to A B, the son, if the names are the same ; but if A B the ^^ounger is in possession of the note, he may recover upon it. Sweeting v. Fowler, 1 Stark. 106. The words "or order," "or bearer," and "bearer," in notes, bills and checks, are words of negotiability, and the use of either of them makes the paper negotiable, although impersonal words be used in place of naming a payee, and if such words be used it is negotiable by delivery without indorsement. Me- chanics' Bank v. Straiton, 8 Abb. Ct. App. 269 ; 5 Abb. (N. S.) 11 ; 36 How. 190; 3 Keyes, 365; 1 Trans. App. 201. So of a note payable to the "holder." Putnam v. Crymes, 1 McMul- lan's Law. 9. If a promissory note, not payable to order or bearer, is indorsed by the payee and transferred by him, he may be sued as an indorser of a promissory note. Bates v. Butler, 46 Me. 387. A mistake in tlie name of the payee, or a misdescription of it, will not invalidate a bill or note, if tlie evidence leaves no doubt BILLS AND NOTES. 643 as to the intended payee. Tlie King v. Box^ 6 Taunt. 325 ; Ste- vens V. Strong, 2 Sandf. 138. An ordinary due bill in tlie following form : "Due A B one hundred dollars paj^able on demand," is a valid promissory note within the statute, if signed by the maker. Kimball v. Bu7i- tlngton. 10 Wend. 675 ; Luqueer v. Prosser, 1 Hill, 256. Or it is valid if in this form : " Due A B or bearer, one day from date, one hundred dollars, for value received." Russell v. WTilp- 'ple, 2 Cow. 536. So of a due bill thus : " Due A B, or bearer, one hundred dollars, for value received, with interest, at L.'s office in R.," and not specifying any time of payment. 8ac7cett V. Spencer, 29 Barb. 180. No time of payment being specified, the law declares it to be payable immediately. lb. A sealed instrument in the form of a negotiable note is not negotiable. Helper v. Alclen, 3 Minn. 332. But the affixing of a seal to a bill of exchange does not deprive it of its commercial character. Bain v. Wilson, 14 Ohio St. 14. A United States treasur}' note is not rendered unnegotiable because it is under the treasury seal. Dinsmore v. Duncan, 57 N. Y. (12 Sick.) 573. A written instrnment, in the usual form of a bond, but with- out a seal, is a promissory note within the statute. Woodward V. Genet, 2 Hilt. 526 ; Lynani v. Calif er, 64 No. Car. 572. So an instrument in these words : " Six months from date I guar- anty to pay," etc., is a valid note. Bruce v. Westcott, 3 Barb. 374. So of an agreement to be accountable for a specified sum. Morris v. Lee, 1 Strange, 629; S. C, 2 Ld. Raym. 1396; 8 Mod. 362. An instrument in the form of a bill of exchange, drawn upon a joint-stock bank by the, manager of one of its branch banks by order of the directors, may be declared upon as a promissory note. Miller v. Thompson, 3 Man. & Grang. 576. So an order drawn by the president of a railroad corporation upon its treasurer, directing the latter to pay A B, or order, a specified sum, stated as being the amount due A B for work done b}' him as contractor, in building a section of the railroad of the corpo- ration, is in efi'pct a promissory note, and may be declared on as such. Fair child, v. Ogdensburgh, etc. Railroad, 15 N. Y. Tl Smith) 337. A written warrant of a municipal corporation for the payment of a sum certain, at a fixed time, to A or order, stating that it ia payable ''out of any funds belonging to the city, not before spe- cially appropriated," and ''chargeable to the general city fund,** 544 BILLS AND NOTES. is a negotiable promissory note. Bull v. Sims, 23 N. Y. (9 Smith) 570. An instrument wliicli promises to pay a specified sum of money to A B, or order, or bearer, is a valid promissory note, although it contains a clause which authorizes the payee or holder to accept or claim something besides money in ^Dayment. And, therefore, an instrument by which a railroad corporation prom- ises to pay, at a specified place, to A B, or order, a given sum, with interest, with a jjrivilege of returning the note within a given time, and receiving stock in exchange for it, is a negotiable promissory note. Hodges v. Shuler, 22 N. Y. (8 Smith) 114; S. C, 24 Barb. 68. Bonds issued by a railroad company, whether nnder its cor- porate seal or not, payable to A B, or the holder thereof, are negotiable, and will pass by delivery. Conn. Mutual Life Ins. Co. V. Clemland, etc., R. R. Co., 41 Barb. 9; 36 How. 225; Brainard v. New YorJc and Harlem R. R. Co., 10 Bosw. 332; Banfield v. Rumsey, 2 Hun, 112 ; 4 S. C. (T. & C.) 322. So of an instrument by which the maker promises to paj^ to A B, or order, for value received, a specified sum, at the maker's store, four months after date, or in goods on demand. Hosstatter V. Wilson, 36 Barb. 307. In these cases the notes promise unconditionally to pay a specified sum of money, and the maker has no option about it, and therefore the promise is not in the alternative so far as the maker is concerned. The fact that the payee or holder has an option to accept payment in something else than money does not change the character of the promise to pay money. Every bill or note ought to be signed by the drawer or maker. The statute has provided some general rules, which will be given: "All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person or his order, or to the order of any other person, or unto the bearei-, any sum of money therein mentioned, shall be due and payable as therein expressed, and shall have the same eflfect and be negotiable in like manner as inland bills of exchange, according to the custom of merchants." 1 R. S. 721, § 1, Edm. ed. "Every such note, signed by the agent of any person, under a general or special authority, shall bind such person, and shall have the same eifect, and be negotiable as above prescribed." Id., § 2. "The word ' person ' in the two last preceding sections shall be construed to extend' to every corporation capable by law of making con- BILLS AND KOTES. 545 tracts." Id., § 3. "The payees and indorsees ^f every such note payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned against the makers and indorsers of the same respectively, in like manner as in cases of inland bDls of exchange, and not otherwise." Id., § 4. The manner of signing will be discussed hereafter. Where a note is made by an agent, or by one of several partners, the pleadings and evidence ought to show enough to establish that there was suffi- cient authority to make it, so as to bind the principal or the other partners. Mitchell v. Ostrom, 2 Hill, 520. The promise of the maker ought to be unconditional as to all the principals in the note. A note was made in this form : "I, John Corner, promise to pay to Absalom Ferris the sum of fifty pounds, with lawful interest for the same, or his order, at six months' notice. Dated this 24th June, 1808. John Corner, or else Henry Bond." It was held that no action would lie against Henry Bond on this note. The court said: "This is not a promissory note by this defendant within the statute of Anne. It operates difierently as to the two parties. It is an absolute undertaking on the part of Corner to pay, and it is conditional only on the part of the defendant, for he undertakes to pay only in the event of Corner's not paying." Ferris v. Bond, 4 Barn. & Aid. 679, 681. A note which contains a promise to pay a sum certain, if the maker's brother does not, within six weeks, is not good as a promissory note. Applehy v. BiddulpJi, 8 Mod. 363. The prin- ciple of these decisions is, that the promise of the makers must be an absolute, not a conditional one. But there are other cases in which a party signs his name below the principal, and then adds the word " surety " to his name. Such a note is held to be valid, and an absolute promise to pay the amount to the payee or holder, both as to the principal and as to the person who thus writes* "surety" to his name. Wright v. Garlinghouse, 26 N. Y. (12 Smith) 539 ; Butle* v. Rawson, 1 Denio, 105 ; Black v. Cafe, 7 N. Y. (3 Seld.) 281 ; Griffl^th v. Reed, 21 Wend. 502. A joint maker of a note who adds to his signature the word "surety," does not limit or change the nature of his liability to the payee or holder. Iiikster v. First National Bank, 30 Mich. 143. A partnership note may be signed in the name of the firm. But where several persons, who are not partners, make a note, it ought to be signed by each of the individual makers in his own name. Vol. L — 69 646 BILLS AND ISTOTES. A bill of exchange or a promissory note, to be negotiable under tlie statute, must be payable in money alone. If made payable in any kind of property, it will not be a negotiable instrument under the statute, although it may be a valid con tract, which may be enforced by an action. Jerome v. Whitney, 7 Johns. 321. If the bill or note contains a promise to pay a given number of dollars and cents, it is clearly payable in money, because dollars and cents are money. But the cases which have been decided in several of the States, and in England, are not in entire harmony with the decisions made in this State. A bill or note which is made in this State, and payable here, will not be negotiable if, on its face, it is payable in bank bills which are issued by banks of another State. Lieher v. Goodrich, 5 Cow. 186. So, a note made, negotiated and payable here in Canada money, is not a negotiable note within the statute. Thompson v. Sloan, 23 Wend. 71, 74. See Collins v. Lincoln, 11 Vt. 268 ; Kirki?atric'k v. McCullough, 3 Humph. 171 ; Fas- well V. Kennett, 7 Miss. 595; HaioMns v. WatMns, 5 Pike, 481. A note made in Michigan payable in Canada, in "Canada cur- rency," is payable in money and negotiable. Blaclc v. Ward, 27 Mich. 191 ; 15 Am. Rep. 162. So, it has been held that a note which is payable in Yorlc State hills or specie is negotiable. Berry v. RoMnson, 9 Johns. 120 ; Chrysler v. Menois, 43 N. Y. (4 Hand) 209 ; Coolce v. Dams, 53 N. Y. (8 Sick.) 318. And so it has been held of a note payable " in bank notes current in the city of New York." Judah v. Harris, 19 Johns. 144 ; Lacy v. Holhrook, 4 Ala. 88 ; and see Miller v. Race, 1 Burr. 457. A check drawn in this State upon a bank in Mississippi, payable in current hank notes, is not negotiable. Little v. Phoenix Bank, 7 Hill, 359 ; S. C, 2 id. 425. An order drawn by A in favor of B, upon another, for A's goods, or the proceeds of his goods, in the hands of the drawer, is not a bill of exchange,^ nor equiva- lent to a bill of exchange. Atkinson v. Manks, 1 Cow. 692. So, an order drawn by a landlord on his tenant, to pay to a person specified, the rents which had accMnied during a certain time, is not a negotiable bill requiring a written acceptance, because it is not for the payment of money only, since it might be payable in something else than money, and besides it is drawn upon a particular fund. Morton v. Naylor, 1 Hill, 583. Bills and notes may be payable in money alone, and may still contain clauses which will render them unnegotiable under the statute. A note which promises to pay money, and also to do BILLS AND NOTES. 647 some other act, is not negotiable. A note promised to pay twenty-five dollars to the payee of it ; and it cntained this addi- tional clause, " I am to insure one span of colts from my horse to Mr. Cheesebrough's sorrel mares this season, for ten dollars and fifty cents," it was held, that the note was not negotiable, and that any person, other than the payee, who sought to recover upon it must prove an assignmerit-of the note to him. Austin V. Burns, 16 Barb. 643. So, an instrument which directs B to pay to C, or bearer, a specified sum, and take up A' s note for that amount, is not a bill of exchange although accepted in writing by B. Coolc v. Satterlee, 6 Cow. 108. And a note, in which the maker promises to pay a certain sum of money, at a particular day, and also to deliver up horses and a wharf, is not negotiable. Martin v. Chauntry, 2 Strange, 1271. So, a note which agrees to pay a certain sum, with interest, and also to pay a debt of uncertain amount which the payee owed, as part pay- ment of interest, is not negotiable. Bolton v. Dugdale, 4 Barn. & Ad. 619. A promise was in writing as follows : "I agree to pay D six hundred and ninety-five pounds at four installments, viz., the first on," etc., "being two hundred pounds," and so on, specifying three others, the four amounting to six hundred pounds ; " the remaining ninety-five pounds to go as a set-off for an order of R. to T., and the remainder of his debt owing from I) to him;" it was held that this was not a promissory note, for sucli a note must be entire, and this instrument cont-ained a promise to pay, joined with an agreement to do something else. Dacies v. Wilkinson, 10 Ad. & Ellis, 98. A note^ma}^ be made payable in installments by the terms of the note itself at a specified time, or it may be made payable by installments payable in such sums and at such times as they may be called for, as in the case of notes given for plank road stock or similar instances. Dutchess Cotton Manuf. v. Dams, 14 Johns. 238. Stock notes which are given for the formation of insurance companies, and premium notes given when an insur- ance is made, are familiar instances of notes payable in such installments. Notes which are payable either in money, or in goods, at the option of the maker, are not negotiable, because in such a case the note is not payable in money unless the maker so elect. It is proper to remark here that the mere fact that a bill or note is not negotiable under the statute, does not deter- mine that the note is void. In all cases in which there is a valid consideration for the note 548 BILLS AND NOTES. or bill, and it is in all other respects legal, such n. tt or bill will be valid as a contract, and if properly assigned, may, in this State, be enforced in the name of the person who owns it. Ante, 535 The principal importance which is to be attached to the question of negotiability, arises from the rule of law which subjects all unnegotiable bills and notes to any equities which may exist between prior parties, even when they are transferred before du^ to a hona fide purchaser for value. In some cases the rules of pleading require a statement of facts in relation to unnegotiable papers which is not required when delivering upon negotiable instruments. So, too, the evidence may differ in such respects as the pleadings may require. The essential qualities of a bill or note are, that it be payable at all events, not dependent on any contingency, nor payable out of a particular fund, and that it be for the payment of money only, and not for the performance of some other act or in the alternative. Cook v. Satterlee, 6 Cow. 108; GilUlan v. Myers, 31 111. 525; Hinnemann v. Rosenhaclc, 39 N. Y. (12 Tiff.) 98; 6 Trans. App. 257. The amount for which a bill or note is drawn must be made payable absolutely and at all events, for certainty is a great object in mercantile instruments. Bunker v. Athearn, 35 Me. 364; Hays v. Gioin, 19 Ind. 19. A promissory note, payable tc order, but containing a condition that it shall be given up to the makers as soon as the amount of it is received by the payee, is not negotiable. Huhhard v. Mosely, 11 G-ray, 170. So a note payable " when any dividends shall be declared" by a specilic corporation, is payable on a contingency, and not a negotiable promissory note. Brooks v. Hargreaves, 21 Mich. 254. A written promise to pay money, provided the payee shall do a certain thing, is not negotiable paper, James v. Hagar, 1 Daly, 517. A promise to jjay to the maker's own order " subject to the policy,'' and indorsed specially to the order of an insurance company, is not negotiable. AmericoM Exchange Bank v. Blancliard, 7 Allen, 333. It would perplex the commercial transactions of mankind if negotiable securities were issued out into the world incumbered with conditions and contingencies, and if the persons to whom they were offered in negotiation were obliged to inquire when those uncertain events would probably be reduced to a certainty, and, accordingly, unless they carry their own validity on the face of them, and conform to what is recognized by mercantile custom, they will not be negotiable. Carlos v. FancourU 5 Term, 482, 485, 486. BILLS AND NOTES. 54(i An order for a specified sum, "payable ninety days after Bight, or when realized,'''' is not a negotiable bill of exchange, as the latter alternative makes the sum payable on a contingency. Alexander v. Thomas, 16 Ad. & Ell. (N. S.) 833. A note payable to an insurance company or order, for a sum certain, " and such additional premiums as may become due on a policy, named, and at a time therein specified, is not negotiable. Marret v. Equitable Ins. Co., 54 Me. 537. An agreement in writing in the form of a promissory note payable on demand, with interest, contained these additional words : " but no demand is to be made as long as the interest is paid," and it was held that it was not a negotiable promissory note. Seacord v. Burling, 5 Denio, 444. No matter what the event may be, on the happening of which payment is to be made, if it be uncertain, it destroys the character and negotiability of the bill or note. If an order is drawn which is payable out of the proceeds of certain carriages, whenever they are sold {DeForest v. Frary, 6 Cow. 151); or if the promise is to pay, provided a certain person, at his death, leaves the maker sufficient to pay with, or if he shall be otherwise able to pay the money {Roberts v. Peake, 1 Burr. 323); or if the promise is to pay within a certain number of days after the defendant should marry (^earr^^^e?/ ^- Baldwin, 2 Strange, 1151) ; all such instruments will be unnegotiable. It is immaterial in what language the contingency is expressed, so long as the promise of payment is conditioned upon the happen- ing of an uncertain event. Such an instrument cannot be made payable on a contingency which may never happen ; it must be payable at a time certain, or at sight, or at so many days after sight, or, at all events, on the happening of an event which must at some period take place. An instrument by which an indi- vidual promises to pay another a certain sum ninety days after a specified partnership is dissolved, and the settlement of the firm books, is not a negotiable note, because it is payable after the happening of two events, one of which, the settlement of the books, may never happen. Sackett v. Palmer, 25 Barb. 179. So, where money was to be advanced, by installments, each of which was to be paid as fast as certain portions of work were completed, and the person to whom the money was payable drew an order upon the person who was to pay, and required the order to be paid out of the money which was payable on the second installment, though the work had not been completed so 550 BILLS AND NOTES. as to render that installment due, it was held that, although this order was accepted, in general terms, by the drawee, it was not a negotiable bill of exchange; and it was also held, that no action would lie on the instrument if the \vork was never com- pleted, so as to render the second installment due. Va7i Wagner V. Terrett, 27 Barb. 181. But where the payment is made to depend upon an event which is certain to occur, though it is uncertain at what particu- lar time it will happen, the bill or note is valid and negotiable. A note which is made payable in a certain number of days after the death of the maker's father is negotiable, since that event is certain to occur, though the precise time when it will take place is uncertain. Coleman v. Cooke, Willes, 393 ; Cooke v. ColeJian, 2 Strange, 1217. A writing thus: "One day after date, I promise to pay, or at my death, A or bearer," may be sued on as a promissory note. Conn v. Thornton, 46 Ala. 587. A note payable thirty days after peace between the Confederate States and the United States does not depend upon a condition, and is valid. Master v. Edwards, 20 La. Ann. 236. And so, a note payable to an infant when he shall come of age, as on the first day of December, 1876, is a valid negotiable note, for it is payable on the day specified, although the infant should die before the time arrives. Goss v. Nelson, 1 Burr. 226. It is of no consequence how long the time of payment is post- poned, provided the time fixed is certain to arrive, or the event specified is certain to happen. The words used in a bill of exchange ought to imply an obligation to pay the amount named, for an instrument drawn in this form : " Please to let the bearer have seven pounds, and place it to my account, and j^ou will oblige me," not purporting to be a demand made by a party having a right to call on the other to j)ay, is not a good bill of exchange. Little v. Slackford, 1 Mood. & Malk. 171. But a draft in these terms: "Mr. Nelson will oblige Mr. Webb, by paying to T. Ruff or order, twenty guineas on his acccount," purports to be an order to pay, and is a negotiable bill. Ruff v. Webb, 1 Esp. 129. The order to pay need not be in any particular form ; any expression amounting to an order or direc- tion is sufficient. The word "^9(2?/ " itself is not indispensable, and any synonymous or equivalent expression is sufficient ; as. " credit in cash,'" which means pay in money. Ellison v. Col lingridge, 9 M., G. & Sc. 670; Hamilton^. Spottiswoode, 4Exch. 200. The payee should be particularly described, so that he BILLS AXD XOTES C51 cannot be confounded with another person of the same name, and must be a person who is capable of being ascertained at the time the instrument is made. Yates v. JVash, 8 C. B. (N. S.) i581 ; ante, 538, A bill or note must be certain as to the amount to be paid. An order directing a third person to pay for a speci- fied quantit}^ of grain, upon which no price was fixed, is not a negotiable bill, because it does not require the payment of a sum certain. LeTit v. Hodgman, 15 Barb. 274. So, an instrument by which a party promises to pay to another a sum specified, "and also all other sums which may be due to him," with interest, is not a negotiable note, even as to the sum named. Smltli v. NigJiiingale, 2 Stark. .375. Nor is an instrument which is drawn in the form of a note for the payment of a certain sum, "first deducting thereout any interest or money due to the maker, on any account," a valid negotiable note. Barlow v. Broadhurst, 4 J. B. Moore, 471. Nor is a draft drawn upon commission merchants, requiring them to pay to the order of the drawer, in thirty days from date^ the sum of one thousand dollars, or what might be due after de- ducting all advances and expenses, available as a negotiable security. The acceptance being for an uncertain amount, to wit. for the balance of the proceeds of unsold goods, is not negotiable CusJiman v. Haynes, 20 Pick. 132. Bills and notes must not be made payable out of a particular fund ; for when so drawn, they become mere special engage- ments, which are to be treated like other contracts not negotiable. Munger v. Shannon, 61 N. Y. (16 Sick.) 251. An order was drawn upon P., in these words: " Sir, pay to G., f-tc, or order, three hundred dollars out of the balance that will be due us from the sales of cloths that you now have or may have of us, together with the woolen machinery upon which you have a chattel mortgage, after deducting the amount you have advanced us, with your charges and com^missions. M. & H." This order was accepted, as follows: " Accepted, 10th Sept., 1846." In an action upon this acceptance by G., etc., it was held, that the order and the acceptance were made with reference to a particular fund, and that the money was not payable, unless that fund was sufficient to pay the debts, advances, etc., mentioned, as well as the order ; and it appearing that no such fund existed; since M. & H. were indebted to P., it was further held that the action could not be maintained. Gallery v. Prindle, 14 Barb. 186 ; and see Van Wagner v. Terrett, 27 Barb. 181. So, a promise 552 BILLS AND NOTES. in the form of a note, which is payable " out of the net proceeds of ore to be raised and sold from a certain ore bed," is not a negotiable promissory note. Warden v. Dodge, 4 Denio, 159 ; and see Haydock v. Lynch, 2 Ld. Raym. 1563 ; Jenney v. Herle, id. 1361. So, an order by a landlord drawn on his tenant, to be paid out of the rent, is not a bill of exchange, and a verbal acceptance by the tenant is valid. Morion v. JSfaylor, 1 Hill, 583. So, where an order was drawn by A, upon B, for the pay- ment of a sum certain to C, as soon as B should receive it out of D's money, and B accepted the order generally, but refused to pay the money thereon ; in an action against B, in favor of C, it was held that no action lay upon the instrument, because it war- not a negotiable bill of exchange. Daiolces v. De Lorane, 3 Wils 207, 213 ; and see Atkinson, v. Manks, 1 Cow. 692. The presi- dent of a corporation wrote a letter stating, in substance, that if B, a person in its employ, would make an order on its treasurer for any portion of his salary, and the person in whose favor the order was drawn should file it with the treasurer, the sum would be paid monthly so long as B remained in the employ of the company, and the order "n^ivr.iined unrevoked." B drew an order directing the treasurer U) pay N. three hundred dollars, in monthly payments of fifty dollars, and charge the same to his salary account. T]ie order and letter were, for a valuable con- sideration, delivered to N., who presented them to the treasurer, and by his direction filed them with the cashier. Subsequently, B wrote to the cashier stating, that "if not accepted," he coun termanded the order. B remained in tlie employ of the company for six months thereafter, at a salaiy of one hundred and eighteen dollars a month. The defendant refused to pay any thing to JST., upon B's order, and it was held that no action could be main- tained against the corporation. Sliaver v. Western Union Telegrapli Co., 57 N. Y. (12 Sick.) 459. Whenever a bill or note is made payable out of a particular fund, and promise of payment is made contingent upon the suffi- ciency of the fund, and that is inadequate, the promise is not binding. If the fund is sufficient, an action may be maintained upon proper pleadings and evidence, though no action will lie upon it as a mere bill or note, since it is not a negotiable note under the statute. Wilder v. 8prague, 50 Me. 354. An order drawn, payable out of a pailicular fund, is not an assignment vro tanto of the fund, unless a consideration was paid therefor. 'Alger v. ScoU, 54 N. Y. (9 Sick.) 14. " BILLS AND NOTES. 553 There is a plain distinction between bills and notes which are payable out of a particular fund, and those which are payable absolutely, but are chargeable to a particular account. A recital in a bill or note that certain collateral securities have been given for the payment of the money specified, does not in any manner affect the validity of the bill or note, or its negotiability. Fan court V. Thome, 9 Ad. & Ellis (N. S.) 312. An instrument, which, in its terms and form, is a negotiable promissory note, does not lose that character because it also states that the maker has deposited bonds as a collateral security for its payment, and that he agrees on non-j)ayment of the note at maturity, that they may be sold in a manner, and upon a notice specified, and he will pay any deficiency necessary to satisfy the note, and the expenses of such sale. Arnold v. RocJc River ^ etc., R. R., 5 Duer, 207; and see Haussoullier v. Hart- sincTc, 7 Term, 733. A note in this form is valid and negotiable : "I promise to pay to A, or his order, at three months after date, the sum of one hundred dollars, as per memorandum of agreement." Jury v. BarTcer, 1 Ellis, Bla. & Ellis, 459, 460, and cases in note. A statement in a written warrant of a municipal corporation for the payment of a sum certain at a fixed time to E. S., or order, that the same is payable " out of any funds belonging to the city, not before specially appropriated," and "chargeable to general diij fund," does not deprive the instrument of the character of a negotiable promissory note. Bull v. Sims, 23 N. Y. (9 Smith) 570. A bill in the following form : "Messrs. A B & Co., please pay to the order of C D, the sum of five hun- dred dollars, on account of 24 bales cotton, shipped to you as per bill lading, by steamer Colorado, inclosed to you in a letter, E F," is a negotiable bill of exchange under the statute. Lower y V. Sieioard, 25 N.Y. (11 Smith) 239; aflirming S. C, 3 Bosw. 505. The court said, page 511 : "The draft in question was in form a bill of exchange. It was an unconditional order upon the defend- ants, to pa}^ a sum certain therein named, to the order of the payee. Although the account to which it should be charged was mentioned, it was not, by its terms, directed to be paid out of a particular fund. Had it been accepted, it was due immediateh^, whether the cotton, to account of which it was to be charged, had been sold or not." It is quite common to specify in a bill the object or purpose for which it was di-awn, as well as the account to which it is tc Vol. L~70 564 BILLS AND NOTES. be cliarged^ without intending to make the order to pay either conditional or contingent; and, therefore, a bill in this form is negotiable, when drawn underneath a promissory note: " A B, Esq., please pay the above note, and hold it against me in our settlement, CD." Leonard v. Mason, 1 Wend. 522. So, when a bill was drawn payable one month after date, and the drawee was directed to pay to A B, or order, a specified sum, " as his quarterly half pay from June 24, to September 27," which was accepted by the drawee, it was held to be a negotiable >)ill, and an action sustained against the acceptor. McLeod v. Siiee, 2 Strange, 762, etc.; 2 Ld. Kaym. 1481. A statement of a particu- lar fund in a draft or bill of exchange, if inserted merely as a direction to the drawee how to reimburse himself, will not viti- ate it. Kelley v. Mayor, etc., of BrooTdyn, 4 Hill, 263. Bills and notes are always written or printed, or these methods are combined, when the instrument is partly printed and partly written. But, when such an instrument is made by filling up a printed form, it is still usually ter:ned a written instrument, and is as valid as a note or bill which is wholly written. The statute requires that all notes shall be in writing, and signed by the maker or his duly authorized agent. 1 R. S. 721, §§ 1, 2 (Edm. ed.), quoted ante, 544. The mode of writing is not material; it may be in pencil mark, or in ink; on paper, or on parchment, or on any other conveni- ent substitute for paper. Geary v. Physic, 5 Barn. & Cress. 234 ; Brown v. Butchers and Drovers'' Bank, 6 Hill, 443 ; das on v. Baity, 14 Johns. 484 ; Draper v. Pattina, 2 Speers (S. C), 292 ; Peed V. RourJc, 14 Tex. 329 ; Closson v. Stearns, 4 Vt. 11 ; Jeffrey v. Walton, 1 Stark. 267. The signature to a bill or note, or indorsement, may be made by writing the name in full, or by writing a part of it in initials, and the remainder in full, or it will be valid if nothing but the initials of the entire name are employed, if those are written for the purpose of executing the instrument. Palmer v. Stephens, 1 Denio, 471 ; Merchants'" Bank v. Spicer, 6 Wend. 443. A party signing his name to an instrument with his initials, intending thereby to bind himself, is as effectually bound as he would be by writing his name in fall. lb. So a party may use figures instead of his initials, oi his name in full; and where a party placed the figures, "1, 2, 8," upon the back of a bill of exchange, by way of substitute for his name, intending thus to bind himself as indorser, it was held to be a valid indorsement, although it appeared that the BILLS AXD NOTES 55t indorser could write. Brown v. Butchers and Drovers^ Banlc^ 6 Hill, 443. So of a mark in the form of a cross, if made by persons wlio cannot write their name, and that is a valid signa- ture. George v. Surrey, 1 Moody & Malkin, 516. It is usual to have a subscribing witness to such a signature by a mark, though this is not necessary; and the signature may be proved by a witness from inspection, if he has seen the party execute instruments in that manner. lb. A mark is a good signing of a promissory note, although there is no subscribing witness to it. WlllougJihy v. Moulton, 47 N. H. 205 ; Shank v. Butsch, 28 Ind. 19 ; Hilhorn v. Alford, 22 Cal. 482. When a signature is made by a mark, it is commonly the case that the writer of the instru- ment writes the name of the maker and leaves a blank space between the christian and the surname for making the mark between the words, "his mark," etc. The signature of the drawer or maker of a bill or note is usually subscribed in the right hand corner ; but it is sufficient if written in au}^ other part. Thus, "I, J. S., promise to pay,'' is a sufficient signature to a promissory note. Taylor v. Dob- bins, 1 Strange, 399 ; Sanderson v. Jackson, 2 Bos. & Pul. 238. It is immaterial on what part of a note the maker' s signature is placed, so that he signs it as original maker. Schmidt v. Schmaelter, 45 Mo. 502. Without the drawer's signature, a bill payable "to my order," though accepted, is of no force, either as a bill of exchange or as a promissory note. Stoessenger v. South E. Railway Co., 3 E. & B. 553 ; Goldsmid v. Hampton, 6 C. B. (N. S.) 94; McCall v. Taylor, 19 id. 301 ; MayY. Miller, 27 Ala. 515 ; Tevis v. Young, 1 Mete. (Ky.) 197. In writing bills and notes it is usual to state the time when, and the place where, they were made. At the common law thia is not necessary to the validity of the instrument, and a note is valid in this State without a date or time of payment. Mitchell V. Culmr, 7 Cow. 336 ; Wexel v. Cameron, 31 Tex. 314. A date to the note is not essential. Michigan Ins. Co. v. Leavenworth, 30 Vt. 11. When no date is specified, a bill or note will take eflfect from the time of its delivery, which may be established b}^ evidence. If a promissory note is not dated it will be considered as dated at the time it was made. Seldonridge v. Connahle, 32 lud. 375. Where there is no date to a note bearing interest from date, the date of its delivery may be shown, and interest com- puted from tliat date. Richardson v. Ellet, 10 Tex. 190. But a bill of exchange or a promissory note has no legal inception 556 BILLS AND NOTES. or vitality until it is delivered to some person as evidence of a subsisting debt. Hall v. Wilson, 16 Barb. 548. If a note is dated, and it is delivered after tlie time when it is dated, it will be valid from the time of delivery only, and it is to be considered as though drawn on the day when it was delivered. Lansing v. Gaine, 2 Johns. 300. But although the date of a note, bill or check is not material to its validity, it is so in respect to its period of payment. It may be ante-dated or post-dated without affecting its legal character as an obligation, but the date deter- mines when it becomes payable. Godin v. BanTi of Common- loealth, 6 Duer, 76, 82 ; Brewster v. McCardell, 8 Wend. 478 ; Pasmore v. North, 13 East, 517 ; Gray v. Wood, 2 Harr. & John:s. 328 ; RicJiter v. Selin, 8 Serg. & E. 425. The payment by a bank of a post-dated check before the day upon which it is dated is a payment in its own wrong, and the money so paid remains to the credit of the drawer. The assignee, in good faith of this fund, may maintain an action against the bank for its recovery. Godin v. Bank of Common wealtTi, 6 Duer, 76. A note post-dated, and not negotiated before the day of its date, is recoverable by the indorsee ; and its transfer before the day of its date affords no cause of suspicion, so as to put the indorsee on inquiry and subject him to the equities existing between the original parties. Brewster v. McCardell, 8 Wend. 478 ; Pasmore v. North, 13 East, 517. It is customary to date bills and notes on the day they are made, and therefore, in the absence of proof to the contrary, the deliver}^ will be presumed to have been made on that day. Woodford v. Darwin, 3 Yt. 82 ; Lansing v. Gaine, 2 J ohns. 800. The indorsee, in an action against the maker, may prove that there was a mistake in the date of the note. Drake v. Rogers, 32 Me. 524. Although a note bears date on Sunday, it may be shown to have been made and delivered on a different day. Aldridge v. Branch Bank, 17 Ala. 45. And though signed on Sunday, if delivered on any other day, it is valid. Bank of Cumherland v. Mayherry, 48 Me. 198. Tlie place where a note or bill was made ought always to be inserted in it, as it is presumptive evidence of the residence of the maker at that place. Taylor v. Snyder, 3 Denio, 145 ; Gal- 'pin V. Hard, 3 McCord, 394. But the dating of a promissory note at a particular place does not make that the place of pay- ment, or authorize a demand to be made at that place for the BILLS A^^D NOTES. 557 purpose of charging an indorser. Id.; Anderson v. Drake, lA Johns. 114. The presumption is that a note is payable at the place where it is dated.. Riclietts v. Pendleton, 11 Md. 320. Where the drawer of a bill of exchange dates it generally, as at "Albany," it is sufiicient to send him a notice of dishonor by mail, directed to him at that place. Mann v. Moors, Ryan & Moody, 249. Bills and notes are generally superscribed in figures for the amount which is written in the body of the instrument. This is a mere matter of convenience, and ordi- narily it is not of any importance to the validity of the instru- ments. Though there may be instances when such figures may be useful, as, for instance, w^hen the body of the bill or note is L^ft blank as to the amount paj^able by it. In such a case the blank in the body may be filled up by the holder so as to corre- spond with the sum specified in the figures in the margin. Where there is a discrepancy between the amount stated in the margin and that mentioned in the bodj" of the instrument, the latter prevails, because the former is a mere memorandum, while the words used in the body of the note constitute the contract. Where the sum intended to be made payable by a note is neither expressed in the body of it, nor in the margin in figures, tlni holder may fill up the blank for the sum intended And where a note was intended to be made paj^able for eight hundred dol- lars, and the note was properly filled tip as a promise to pay "eight," omitting the words "hundred dollars," it was held that the holder might insert those words. Boyd v. Brotherson, 10 Wend. 93 ; and see Clute v. Small, 17 id. 238. Where a blank space is left in a promissory note, after the word "at," iu the place where the place of payment is usually mentioned, the holder of the note is authorized, by an implied authoritj', to till the blank. Kitchen v. Place, 41 Barb. 465. If an indorser delivers to the maker a promissory note with the time and place of payment in blank, this will authorize the maker to fill the blanks as to time and place of payment. McGrath v. Clark, 56 N. Y. (11 Sick.) 35 ; 15 Am. Eep. 372 ; Gillaspie v. Kelley, 41 Ind. 158 ; 13 Am. Rep. 318. But this will not authorize him to add the words " with interest." lb. One who makes and delivere to another a promissory note, perfect in foira, except that a blank is left after the word "at," for the place of jjayment, it carries with it an implied authority to any bona jide holder to till the blank. Redlich v. Doll, 54 N. Y. (9 Sick.) 234. A maker of a note for $300, who leaves a blank which is filled up so aa 558 BILLS AND NOTES. to read $320, will be liable for tliat sum to a 'bona fide holder, Yocum V. Smitli, 63 111. 321 ; 14 Am. Rep. 120. But if a note is perfect when it is delivered, the holder is not authorized to make any additions to it, even though there is a blank space sufficient to contain the alteration. Bruce v. Wesfcoit, 3 Barb. 374 ; More- head V. FarTcersburgJi National Bank, 5 W. Va. 74 ; 13 Am. Rep. 636. There may be an exception to this rule in the case of an evident mistake, as where a sum is agreed upon by a debtor as due from him to his creditor, and the debtor draws a note in which he states the true amount in the margin, in figures, but by mistake the body of the note is filled up with a smaller sum, it was held that the creditor might alter the body of the note so as to make it correspond with the true sum. Clute v. Small, 17 Wend. 238 ; and see Brutt v. Picard, Ryan & Moody, 37 ; Bruce v. Westcott, 3 Barb. 374. The parties to a bill or note may fix upon any time that they choose as the time of its payment. Though, as has been seen, ante, 549, such time must not be left to be determined by an uncertain event which may never occur. If the time fixed is certain to arrive, or the event upon which payment is to be made is certain to occur, the note will be valid, although the period fixed for payment may be very remote. It is not necessary that the precise time of payment should be fixed, if it is made to depend upon the happening of an event which is certain to take place, though the particular time of its occurrence is not certain, ante, 550. And there may be instances in which a note is valid, though it is made payable upon the hap- pening of an event which may never take place. The object of requiring a certain time of payment is intended for the advan- tage of the creditor, and for the purpose of preventing a debtor from delaying payment, or the maturity of his debt. And, therefore, a note is valid even when made payable upon an uncertain event which is within the control of tlie creditor ; as, for instance, where a note is made pa3^able in a given number of days after sight or after demand. Clayton v. Gosling^ 5 B. & C. 360. It is not necessary that any time of payment should be specified, and in that case the note will be payable imme- diately. Thompson v. Ketcham, 8 Johns. 190 ; HerricTc v. Ben- nett, id. 374. Some of the cases hold that a note which does not specify any time of payment is payable on demand. Porter v Porter, 51 Me. 376 ; Holmes v. West, 17 Cal. 623 ; Salinas v WrigJit, 11 Tex. 572. BILLS AiS^D XOTES. 55f« In an action on a bank note payable on demand generally, and not at a particular place, a demand of payment is not necessary before the commencement of a suit. Haxtun v. Bishop, 3 Wend. 13. Where a note is payable on demand, with interest, no de- mand is necessary before bringing an action on it. Hirst v. Brooks, 50 Barb. 334 ; Wheeler v. Warner, 47 N. Y. (2 Sick.) 519; 7 Am. Rep. 478. Nor is a demand necessary on a note payable at a particular place ; but if, in such a case, the defendant shows that he was ready at the place to make payment, and brings the money into court, he discharges himself from interest and costs. Ilaxtun V. Bishop, 3 Wend. 13 ; Wolcott v. Van Santvoord, 17 Johns. 248 ; Fair child v. Ogdenshurgh, etc., B. R., 15 IST. Y. (1 Smith) 339 ; Troy City Bank v. Grant, Hill & Denio, 119 : Hills V. Place, 48 N. Y. (3 Sick.) 520 ; 8 Am. Rep. 568 ; Locklin v. Moore, 57 N. Y. (12 Sick.) 360. But where a note is payable in specific articles without men- tioning any day or place of payment, it is in law payable on de- mand, and an actual demand is necessary before an action can be maintained. Lobdell v. Hopkins, 5 Cow. 516 ; Bice v. Churchill, 2 Denio, 145 ; Durkee v. Marshall, 7 Wend. 312 ; Cook V. FerraV s Administrators, 13 Wend. 285. In all contracts, including bills and notes, time is to be com- puted by calendar and not by lunar months, unless otherwise expressed in the instrument. 1 R. S. 563, § 4, Edm. ed. A promissory note payable on demand, with interest, is a con- tinuing security ; an indorser remains liable until an actual de- mand, and the holder is not chargeable with neglect for omitting to make such demand within any particular time. Merritt \. Todd, 23 N. Y. (9 Smith) 28 ; Brooks v. Mitchell, 9 Mees. & AYels. 15 ; Barough v. White, 4 Barn. & Cress. 325. These cases qualify the old doctrine that a bill or note payable on demand must be presented in a reasonable time in order to charge an indorser. But see Herrick v. Woolverton, 41 N. Y. (2 Hand) 581 ; 1 Am. Rep. 461 ; WJieeler v. Warner, 47 N. Y. (2 Sick.) 519 ; 7 Am. Rep. 478. And see post. When a bill of exchange is drawn, the theory is that the drawee has in his hands funds of the drawer sufficient to pay the bill, and, therefore, a bill ought to be so drawn as to imply an order to pay the amount specified. Little v. Slackford, 1 Moody & Malkin, 171. And if the order shows on its face that there is no right to order the payment of the money, it will not be a bill of exchange. lb. 560 BILLS AXD XOTES. Foreign bills of exchange are usually drawn in several parts, tlie whole of which constitute what is called a set. These parts are usually three in number, though there may be more if the parties choose. The di-awer usually delivers to the payee three bills of the same tenor and date, each of which should refer to the other parts of the set, and express that payment of it is con- ditional on the other parts of like " tenor and date " as itself remaining unpaid at matuiity. One or more of these parts of the bill may be circulated while another is forwarded for accept- ance. A bill of exchange drawn in one State on persons living in another is to be treated, it seems, as a foreign and not as an inland bill. Wells v. ^Y7iite7iead, 15 Wend. o27 ; Halliday x. JfcDougall, 22 id. 264 : Commercial Bank of Ky. v. Var?iu?7i, 49 X. Y. (4 Sick.; 269. Payment of any one of the parts of the bill to a holder who is entitled to receive the money is payment of the whole set or the entii-e bill. Holdsicorth v. Hunter. 10 Barn. cV: Cress. 449 ; Perreira v. Jopp, id., note, page 4:50; Wells v. Whitehead, 15 Wend. 527, d2S. When the second of a set of three bills of exchange is protested for non-acceptance, and an action is brought against the indorser, and the plaintiff declares on the first of the set he is not entitled to recover, unless he produces the second of the set which was protested, or accounts satisfactorily for its non-production ; the defendant may require its production to guard against a subse- quent claim by a bona fide holder, or by an acceptor who had j)aid supra protest for his honor. Wells v. W?iifeh.ead. 15 Wend. 527. Each part of a set ought to refer to all the others, so that the di'awer may not be compelled to pay twice over. Datisoa v. Robertson, a Dow. 218, 22S. To prevent mistakes and double payment, neither party to a bill should pay, unless the part protested is presented and suiTendered. For if the dmwee pays on receiving the second of the set, the indorser who is not aware of the fact ma}* be misled and be induced to paj'' again on receiving the fii'st of the set accompanied with notice of the protest. Durkin v. Cranston, 7 Johns. 442. For some purposes all the parts of the set constitute but one bill ; but they are not one so that the protest of either is a pro- test of all, nor so as Xo dispense with the necessit}' of suing on that particular bill which has been dishonored. Wells v. White- head, 15 Wend. 527. Foreign bills must be protested for uou- iicceptance and non-payment, or the drawer and indorser will be discharged. lb. BILLS AND NOTES. 661 ARTICLE IV. NEGOTIABILITY OF BILLS AND NOTES. Section 1. In general. When a negotiable bill or note is taken in good faith, and for value, before it is due, the holder may recover the full amount of it without reference to any equities which may exist between prior parties to it. Bills and notes not negotiable are valid instruments ; but they are taken subject to all existing equities, even when taken in good faith, for value, and before maturity. It is evident, therefore, that for all com- mercial purposes, it is important that the holder should know whether the bill or note transferred to him is negotiable, or whether it is unnegotiable. The law has not determined that any particular phraseology shall be employed for the purpose of rendering a bill or note negotiable. If any words are used which indicate that the maker, or any other party to the instru- ment, intended that it should be negotiable, the law will give effect to that intention, so far as that person is concerned. United States V. WTiite, 2^Hill, 59, 62 ; Willets v. Fhoenix Banlc, 2 Duer, 121; Chit, on Bills, 218, Am. ed. of 1839. The usual mode of making notes, bills and checks negotiable is by drawing them payable to a particular person, or order, or bearer, or to the order of the drawer, or to bearer generally. It must be remem- bered, however, that such negotiable words will not of them- selves render every contract a bill or note. It is in those cases only in which they are inserted in an instrument which the law recognizes as capable of possessing negotiable qualities, that they can have the effect of rendering the instrument negotiable. An instrument in the form of a note, payable in money, to a cer- tain person, or order, is not negotiable if a seal is affixed to the maker's signature. QlarTc v. Fanners' Manufacturing Com- pany, 15 Wend. 256. But when by mistake and ignorance a seal was attached to the firm name signed to a note given for value, a recovery was allowed in equity in the same manner as though there had been no seal. Lynam v. Calif er, 64 N. C. 572. A note payable in chattels is not negotiable though payable to bearer, or to order, because its negotiability is destroyed from the fact that it is payable in chattels instead of money. It is the custom of merchants, adopted into the mercantile code, that renders bills of exchange capable of assignment as they now are; and it is by virtue of the statute that promissory notes are Vol. L— 71 BILLS AND NOTES. placed upon tlie same footing as bills in regard to theii negotia- bility. Ante^ 544, § 1. When a bill or note is not made payable to a certain person by name, adding ''or bearer," or the words, "or order,' it must have inserted into it terms of equivalent import, in order to make it negotiable. It is not necessary that the instrument should be made payable to any person by name, for it will be equally valid if made payable to "the bearer," as bank notes or bills are drawn. All bills and notes which are drawn payable to a certain person or bearer, or to bearer generally, are transfer- able from person to person without any indorsement whatever. And if the payee of a note payable to him or hearer put his name on the back, he may be sued as an indorser, in the same manner as though the note had been made payable to him or order. Brush v. Meeves, 3 Johns. 439 ; Davis v. Wilson, 31 Tex. 186 ; BanTc of England v. Newman, 1 Ld. Raym. 442. But a note payable to A. or bearer, may be negotiated by delivery only, even though it is indorsed by A. Wilhour v. Turner, 5 Pick. 526 ; Bole v. WeeJcs, 4 Mass. 451. When a note is drawn payable to the person who shall thereafter indorse the same, it is a negotiable note ; and the person who writes his name on the back of it becomes liable on it as an indorser. United States v. White, 2 Hill, 59. The makers of a note cannot object that a note was negotiated contrary to its terms, when they themselves put it into circula- tion ; as where a note was made for the purpose of renewing a similar note, and it was made "payable and negotiable at the Bank of Ontario," but the makers turned it out in payment of a debt which they owed. Wardell v. Hughes, 3 Wend. 414. A direction in a note, making it payable at a given bank, is equiva- lent to a request to the bank to pay it out of any funds which the maker has in the bank. Orijjin v. Rice, 1 Hilt. 184, ante. A written instrument for the payment of money upon a con- tingency may be transferred by delivery merely, altliough pay- able " to order." Such an instrument is not negotiable, and no indorsement is requisite to transfer the title. A delivery, with intent to vest in the party claiming under it all the payee's inter- est, is sufficient. Loftus v. ClarJc, 1 Hilt. 310. Bills and notes for the payment of money, but without words of negotiability, are valid either at common law or under the statute. Ooshen Turnpike Co. v. Hurtin, 9 Johns. 217 ; Down- ing V. BacTcenstoes^ 3 Gaines, 137 ; Tingling v. Co7iass, 18 Md. BILLS AND NOTES. 563 148 ; Hackney v. Jones, 3 Humph. 612 ; Fernon -v , Farmer, 1 HaiT. 32 ; Reed v. Murphy, 1 Kelly, 236 ; Burcliell v. SlococJc, 2 Ld. Raym. 1545 ; Smith v. Kendall, 6 Term, 123. In this State most choses in action are assignable so as to authorise an action in the name of the assignee. This subject will be noticed here- after in relation to indorsements and transfers of such instru- ments. In every negotiable bill or note, it is implied that there is a sufficient valid consideration, and it is not essential that the words " for value received," should be expressed in the instru- ment. Kinsman v. Birdsall, 2 E. D. Smith, 395 ; Bank of Troy V. Topping, 13 Wend. 557, 569 ; Townsend v. Derby, 3 Mete, 363 ; Hubble v. Fogartie, 3 Rich. 413 ; Benjamin v. Fillman, 2 McLean, 213 ; Kendall v. Galmn, 15 Me. 131 ; Watson v. Kight- ley, 11 Ad. & Ell. 702. The words "for value received" in a chattel note payable in neat cattle, are prima facie sufficient evidence of consideration, and on proof of the execution and delivery of the note, the payee is entitled to recover. Jerome v. Whitney, 7 Johns. 321 ; W air ad v. Petrie, 4 Wend. 675. Every note, within the statute, imports a consideration, unless the contrary appears in the note itself; and if the defendant would impeach the note for want of consideration, the burden of proof is on him. Goshen Turnpi'ke Co. v. Hurtin, 9 Johns. 217 ; Smith v. Poor, 37 Me. 462 ; Coburn v. Odell, 30 N. H. 540 ; Camp V. Tompliins, 9 Conn. 545 ; Middlebury v. Case, 6 Vt. 165; Thompson v. Armstrong, 6 A\3i. 383 ; Mitchell v. Rome Railroad Co., 17 Ga. 574 ; Richardson v. Gomstock, 21 Ark. 69 ; Gamwell V. Moseley, 11 Gray, 173 ; Hatch v. Trayes, 11 Ad. & Ell. 702. The words "for value received" when inserted in a bill or note are evidence of money received, and the note is admissible in evidence under the money counts. Hughes v. Wheeler, 8 Cow. 77. But the recital in a bill, of value received, and its indorse- ment, do not estop the acceptor nor the indorser from proving that the acceptance and indorsement were for the accommodation of the drawer, and that the bill had no inception until its usuri- ous discount by the plaintiffs. Clark v. Sisson, 22 N. Y. (8 Smith) 312. Where a note is expressed to be for value received, that raises a presumption of a legal consideration sufficient to sustain the promise ; but that is a presumption only, and may be rebutted. Holliday v. Atkinson, 6 Barn. & Cress. 501. The subject of consideration will be noticed more fully hereafter, and see ante, 85, etc. 564 BILLS AND NOTES Bills of exchange usually contain words of aarice, specifying to what account the amount directed to be paid is to be charged. And when a statement is made in a bill of a particular fund, out of which the drawee may re-imburse himself; or if it is directed that the amount of the bill shall be charged to a particular account, this will not invalidate the bill. Kelley v. Mayor of BrooTclyn, 4 Hill, 263 ; Bull v. Sims, 23 N. Y. (9 Smith) 670. The drawer sometimes gives the drawee a general direction in words like the following : " and charge the same to my account," or directs it to be put to some specific account, as "to the Bed- ford road assessment." lb. But such words of advice are not necessary to the validity of the bill ; and in the absence of them, the drawee has an election as to what account they shall be applied, if there are several to which an application maybe prop- erly made. Laing v. Barclay, 1 Barn. & Cress. 398. Such words are sometimes considered in determining the construction which ought to be given to the instrument, because they indicate the intention, and frequently serve to explain the relation which exists between the parties, by pointing out the consideration for which they are given, or the credit upon which they are drawn, lb. If a bill contains a direction to charge "as per advice," the drawee has a right to wait for advice before accepting or paying it. If no such words are used, or if the direction is to charge as already advised, or without further advice, there is neither neces- sity nor propriety in waiting for letters of advice. It is, however, customary to send the drawee a letter advising him of the draft, and describing the bill in a particular manner ; and this is a pru- dent course in order to prevent frauds, and to give the drawee such information as may satisfy him that the bill is drawn in the usual course of business. A bill of exchange, being an open letter of request for the pay- ment of money, must be regularly addressed to the person upon whom it is drawn ; and this is usually done at the bottom, on the left hand of the bill. No one can be liable as acceptor but the person to whom the bill is addressed, unless he be an accep- tor for honor. Polliill v. Walter, 3 Barn. & Ad. 114, 122; Nichols V. Diamond, 9 Exch. 157 ; see Lindus v. Bradwell, 5 C. B. 583. And where a bill was drawn payable to the order of the drawer himself, and directed to himself, but accepted by another person, it was held that no action could be maintained against such acceptor. Dams v. Clarke, 6 Ad. & Ell. (N. S.) 16. But where an instrument was drawn, payable to the drawer or BILLS AND NOTES. 566 his order, at a particular place, without being addressed to any person by name, and it was afterward accepted by the person residing at the place where it was made payable, it was held that the acceptor was liable in an action upon such instrument as a bill of exchange. Gray v. Mllner, 8 Taunt. 739. The bill was made "payable at No. 1 Wilmot street, opposite the Lamb, Bethnal Green, London." The court held that since tbe bill was directed to a particular place, it could not mean any thing except that the person residing there was to accept it ; and that by accepting it, sach person acknowledged that he was the person to whom it was directed. But see Davis v. OlarTce, 6 Q. B. 16 ; Peto V. Reynolds^ 9 Exch. 410. An order drawn by the president of a corporation, or by the mayor of a city upon its treasurer, has been held to be a valid bill of exchange, and is properly directed to the treasurer. Kel- ley V. Mayor ^ etc., Brooklyn, 4 Hill, 263. Or it may be treated as a promissory note under the statute. Bull v. Sims, 23 N. Y. (9 Smith) 570. And it has been recently held by the court of appeals, that such an order is not a bill of exchange but a promissory note. FaircMld v. Ogdenshurgh, etc., R. R., 15 N. Y. (1 Smith) 337. Where an instrument is made in terms so ambiguous as to make it doubtful whether it is a bill of es:change or a promissory note, the holder may, at his election, treat it as either as against the maker of the instrument. Edis v. Bury, 6 Barn. & Cress. 433 ; Brazelton v. McMurray, 44 Ala. 323. The construction which is to be given to bills and notes is similar to that which obtains with reference to other contracts. Bills and notes payable to " order" are transferable by indorsement, while those payable to "bearer " may be transferred by mere delivery. A bill of exchange or a promissory note has no legal inception, however complete it may be in form, until it is delivered to some person, as evidence of a subsisting debt. Adams v. Jones, 12 A-d, & Ell. 455 ; Machell v. Kinnear, 1 Stark. 499 ; Catlin v. Gunter, 11 N. Y. (1 Kern.) 368 ; Marvin v. McCullum, 20 Johns. 288 ; Bur son v. Huntington, 21 Mich. 415 ; Ayres v. Milroy, 53 Mo. 516. A note delivered in escrow, to take effect upon a con- dition, takes effect as soon as the condition is performed. Tay- lor V. Thomas, 13 Kans. 217. But the note cannot be delivered to the payee as an escrow, it must be a third person. Hinsham V. Button, 59 Mo. 139. When a bill or note is made and delivered for a legal purpose tm BILLS AND NOTES. to some person as evidence of an existing indebtedness, it then has its inception, if snch delivery is absolute. There may be, however, a conditional delivery of such an instrument, and in a proper case the courts will enforce the con- dition. And where notes are signed by two persons, one of them a principal debtor, and the other his surety, a declaration by the principal, at the time of the delivery, that such delivery is uncon- ditional, will not entitle the payee to maintain an action against the surety or indorser of the notes. If it appears that the notes were signed by the maker, together with a surety, and indorsed by another person on the express condition that they were not to take effect until a certain arrangement should be consummated, the absolute delivery of the notes by the maker is an unlawful diversion of them from the purpose for which they were made and indorsed ; and the payee will obtain no title to them unless he is a bona fide purchaser without notice, and for value paid. MicTdes v. Oolmn, 4 Barb. 304. So, in an action by the payee of a check against the drawers, the defendants may show the trans- action in which it originated ; that its delivery was not absolute but conditional, and that, according to such condition, it was the plaintiflTs duty to return it to the defendants, and that they had refused', before suit brought, to do so. Bernhard v. Brunner, 4 Bosw. 528. Where a person is induced to execute negotiable paper by a fraud practiced upon him, there cannot be a recovery upon it, except by a bona fide purchaser for value. Farrington v. Frankfort Banlc, 24 Barb. 554. A party who is induced by fraud to sign a note, or to accept a bill upon the supposition that it is an entirely different contract, is not bound by such signa- ture. Foster v. Mackinnon, L. R., 4 C. P. 704 ; Whitney v. Sny- der^ 2 Lans. 477. A person who signs a note in the belief that it is a contract for service, and who exercises reasonable precaution and prudence to avoid fraud and imposition, is not liable on the note. Taylor v. Atcliison^ 54 111. 196 ; 5 Am. Rep. 118. So of a note signed in the belief that it related to an agency for the sale of a hay-fork. Gibbs v. Linabury, 22 Mich. 479 ; 7 Am. Rep. 675, 685, note. See Walker v. Egbert, 29 Wis. 194 ; 9 Am. Rep. 548, 554 note ; Briggs v. Ewart, 51 Mo. 245 ; 11 Am. Rep. 445, 449, note. If his own negligence contributed to the result, and the bill or note is held by a bona fide holder, for value, he may recover on the instrument. Chapman v. Rose, 56 N, Y. (11 BILLS AND NOTES. 567 Sick.) 137 ; 47 How. 13 ; Fenton v. RoMnson, 4 Hun, 252 ; 6 S C. (T. & C.) 427. One who becomes surety on a non-negotiable note on the ex- press condition that another person shall be procured as a co- surety, and the latter fails to join, the surety will not be liable, although the note is in the hands of a holder having no notice of the agreement. Ayres v. Wilson, 53 Mo. 616. See also People V. BostwicJc, 32 N. Y. (5 Tiff.) 445 ; 43 Barb. 9 ; Loi^ett v. Adams. 3 Wend. 380. It is of no consequence when or where a bill or note is signed, because it takes effect from the time of delivery, and not from the time of making. Hyde v. Ooodnoio, 3 N. Y. (3 Comst.) 266 ; Hall V. Wilson, 16 Barb. 548. Though the parties may in some cases deliver a note after the time of its date, and by agreement make it relate back to the time of its date for some purposes. But no agreement can give the note an inception ; there must be some delivery of the instrument, actual or constructive, before it is an absolute security as a bill or note. It is not necessary that there should be positive proof of a delivery, because the law will infer a delivery from given facts, and those facts may be established by evidence, and be found by a jury, or by the justice. In an action upon a negotiable promissory note, payable to bearer, or indorsed in blank by the payee, possession by the plaintiff is prwia facie evidence that he is the owner of it for a good consideration. James v. Chalmers, 6 N. Y. (2 Seld.) 209 ; S. C, 5 Sandf. 52; Seeley v. Engell,V7 Barb. 530; Smith v. ScJumcJc, 18 id. 344 ; Nelson v. Cowing, 6 Hill, 336 ; Bedell V. Carll, 33 N. Y. (6 Tiff.) 581. The same rule applies to checks. Townsend v. Billinge, 1 Hilt. 353 ; Cruger v. Armstrong, 3 Johns. Cas. 5, and cases in note at end of case ; Conroy v. War- ren, id. 259 ; and bills of exchange stand upon the same footing. So of railroad bonds. WicJces v. Adirondack Co., 2 Hun, 112 ; 4 S. C. (T. & C.) 250. Indeed, it maybe considered clearly settled, that the actual possession of any negotiable instrument which appears on its face to have been regularly negotiated, is sufficient yima facie evidence that the instrument was duly delivered, and that the possessor is its owner in good faith and for value. It is now settled that the legal presumption is that such instru- ment was delivered and negotiated to the holder before its matu- rity. Andrews v. Chadbourne, 19 Barb. 147 ; Pratt v. Adams^ 7 Paige, 616. And evidence that the bill or note was not trans- 668 BILLS AND NOTES. ferred to tlie plaintiff until after tlie maturity of the paper, does not rebut the presumption that he is a holder in good faith, and for value. James v. Chalmers^ 6 N. Y. (2 Seld.) 209 ; Seely v. Engell, 17 Barb. 530, 534 ; Bmitli v. Sclianclc, 18 id. 344. Bills and notes are frequently given on the sale of prDperty and the settlement of accounts, etc. And it is a general rule that the giving of a note or bill by the debtor to his creditor for goods sold, or lor an existing debt, is not to be regarded as a payment of the indebtedness, unless there is an express agreement that it shall have that effect. Hill v. Beehe, 13 N. Y. (3 Kern.) 556, 562, 563, and cases cited ; Hughes v. Wheeler^ 8 Cow. 77 ; Bur- diok V. Green, 15 Johns. 247 ; Tobey v. Barker, 5 id. 68. This last case is a leading one. See 2 Am. Lead. Cases, 245, 249, and cases. The giving of a bill or note does not extinguish the debt for which it was given ; it merely operates to extend the time of payment until the instrument becomes due ^ and, if it is not then paid, the creditor may sue upon the original demand, though he must be able to produce the bill or note at the trial for cancellation. Id.; Muldon v. WJiitlock, 1 Cow. 290. The acceptance by a creditor of a bill or note made by a third person, on account of the debt, does not satisfy it unless the parties agreed that it should be received as payment. Noel v. Murray, 13 N. Y. (3 Kern.) 167 ; Hays v. Slone, 7 Hill, 128 ; S. C, 3 Denio, 575 ; Bill v. Porter, 9 Conn. 28 ; Kelsey v. Rosborougli, 2 Rich. 241 ; Gordon v. Price, 10 Ired. 385 ; Smitli v. Smith, 27 N. H. 244 ; Howard v. Jones, 33 Mo. 583 ; Devlin v. Chamhlin, 6 Minn. 468; Morrison v. Welty, 18 Md. 169 ; McOrary v. Car- rington, 35 Ala. 698; Blunt v. Walker, 11 Wis. 334; Josev. Baker, 37 Me. 465 ; Caldwell v. Fifield, 4 Zabr. 150 ; Basseit v. Sanborn, 9 Cush. 57. The same rule applies to a check, and if it is not paid, the creditor may sue upon the original demand. Cromwell v. Loveti, 1 Hall, 56 ; Stevens v. McNeill, 26 Barb. 651 ; Tanner v. Bank of Fox Lake, 23 How. 399 ; Mclntyre v. Kennedy, 29 Penn. St. 448. Where a note, bill or check is re- ceived on a precedent debt, the presumption is that it was not taken as payment, and the burden of establisliing that it was agreed to be so received is upon the debtor. Noel v. Murray, 13 N. Y. (3 Kern.) 168. But where such an instrument is received cotemporaneously with the contracting of the debt, tlie presumption is that it was agreed to be received in payment, and the burden of proving the contrary rests on the creditor. Id.; Whitheck v. Van Ness, 11 Johns. 409 ; Bew v. Barber, 8 Cow. BILLS AND NOTES. 509 272 , Breed v. Cook^ 15 Johns. 241 ; Youngs v. Stahelin^ 34 N. Y. (7 Tiff.) 258; Randlet v. Herren, 20 N. H. 102. Where the debtor guarantees a bill, or note or check, which he transfers as part payment, at the time of the creation of tlie debt, such guar- anty is evidence that the creditor did not accept the instrument in payment. Monroe v. Hoff, 5 Denio, 360 ; Jolinson v. Gilbert, 4 Hill, 178 ; Torry v. Hadley, 27 Barb. 192 ; Tyler v. Stevens, 11 id. 485 ; Vardell v. McMel, 21 N. Y. (7 Smith) 336. It is of no consequence whether the guaranty is in writing or by parol, or whether it is valid or void. In either case it is evidence that the creditor did not accept the instrument as an absolute payment of his demand ; and, therefore, when the time expires for which such instrument extends, and it then is unpaid, the creditor may sue upon the original debt, and cancel such collateral security on the trial. lb. Where the creditor accepts the note of a third person in payment of his debt, whether existing, or one created at the time of a purchase, etc., such note will be a payment and discharge of the debt ; or, if it was expressly agreed that such should be the effect of the arrangement. Johnson v. Weed, 9 Johns. 310 ; Graves v. Friend^ 5 Sandf. 568 ; St. John v. Purdy, 1 id. 9 ; Frishie v. Lamed, 21 Wend. 450 ; Willard v. Germer, 1 Sandf. 50 ; New York State Bank v. Fletcher, 5 Wend. 85 ; Ahercromhie v. Manly, 9 Port. (Ala.) 145 ; Slocitmh v. Holmes, 1 How. (Miss.) 139 ; Gave v. Hall, 5 Mo. 59 ; Watson v. Owens, 1 Rich. Ill ; Mims v. McDoioell, 3 Ga. 182 ; and see Tohey v. Bar- ber, 5 Johns. 68 ; S. C, 2 Am. Lead. Cases. Though the delivery of the note of a third person is not a payment of a precedent debt, and merely operates to suspend the remedy upon the original debt, yet, if the holder is guilty of laches, he makes the note his own, and discharges the pre- cedent debt. Shipman v. Cook, 1 Green, 251 ; Allen v. Clark, ^^ Barb. 563 ; Smith v. Miller, 43 N. Y. (4 Hand) 171 ; 52 N. Y. (7 Sick.) 545 ; Middlesex v. Thomas, 20 N. J. 39 ; Kephart v. Butcher, 17 Iowa, 240 ; Lean v. Friedlander, 45 Miss. 559. See Syracuse, etc., B. R. Co. v. Collins, 57 N. Y. (12 Sick.) 641 ; 3 Lans. 29. Where several persons are jointly indebted for goods sold, which are charged to all the debtors, it will not discharge some of the parties from their liability by reason of the making out of a bill against a part of the debtors, and taking a note from them payable at a future time, and giving a receipt in full, if Buch note is not paid. Muldon v. Whitlock, 1 Cow. 290; Vol. L — T2 670 BILLS AND NOTES. ScTiermerhorn v. Loines, 7 Jolins. 311. Where a firm was indebted and had given a firm note for the amount, and the firm was subsequently dissolved, and after that event one of the partners gave his individual note for a part of the amount, the note of a third person for a portion of it, and paid the bal- ance in money, it was held that this arrangement extinguished the liability of the other partners. Waydell v. Luer, 8 Denio, 410 ; and see Le Page v. McCrea, 1 Wend. 164 ; FrisMe v. Larned^ 21 id. 450. Whether a note given by one of several partners, upon an express agreement that it shall be received in payment of the firm debt, will discharge the other partners, is not entirely settled. See Edw. on Bills, 194, 195, and cases cited. Where a creditor received from his debtor the business note of a third person, upon an agreement that it should be a full satis- faction of a larger debt, if paid at maturity, but not otherwise, it was held that the creditor, by receiving payment of the note when past due, waived the condition and discharged his original debtor. ConUing v. King, 10 N. Y. (6 Seld.) 440. The discounting of a new note, and the application of the proceeds realized from it to the payment of the former note, extinguishes the old debt and creates a new one. Fisher v. Marvin, 4? Barb. 159. When a negotiable bill or note is delivered to a creditor, it operates as a payment so far that he cannot recover upon the original demand until such instrument is due, and he must then produce and cancel it at the trial before he can recover. Holmes V. DeCamp, 1 Johns. 34 ; Angel v. Felton, 8 id. 149 ; Raymond V. Merchant, 3 Cow. 147 ; Hughes v. Wheeler, 8 id. 77; Bur dick v. Green, 15 Johns. 247; Miller v. Lumsden, 16 111. 161 ; Matthews V. Dare, 20 Md. 248. Negotiable paper is treated as payment in the manner just mentioned, for the reason that it may be trans- ferred from hand to hand ; and if transferred to a bona fide holder, for value, before the maturity of the paper, the maker will be liable to pay the amount to such holder ; and it is there- fore required that the creditor who took it from the debtor shall produce and cancel it at the trial, or show its loss, etc., before he can recover, either upon the original demand or even upon the note itself. lb. See "Lost Note." When a bill or note which is not negotiable is given by a debtor to his creditor, the debtor ought to have the same right to require the production and can- cellation of the note. The Code permits an assignment of such instruments, and authorizes the owner of the demand to sue ifl BILLS AND NOTES. 671 his own name (Code, §§ 111, 112, 113), and it jDrovides that actions by assignees shall be without prejudice to anj set-off or other defense existing at the time of, or before notice of, the assignment. § 112. Where an action is brought by an assignee in his own name, upon a chose in action not negotiable, the defendant owing such claim cannot set off a demand in his favor, against the plaintiff, as a defense, unless he proves that the claim belonged to him before notice of the assignment. Soloman v. Holt. 3 E. D. Smith, 139. When a creditor accepts a bill or note from his debtor it will operate to suspend the. right of action on the original debt until the bill or note becomes due or is dishonored. Putnam v. Lewis, 8 Johns. 389 ; Herring v. Sawyer, cited in same case ; Smith v. Applegate, 1 Daly, 91. Where goods are sold which are to be paid for by the note of a third person, upon the delivery of the goods, and such third person becomes insolvent before the goods are delivered, the vendor is not compelled to deliver them and take such notes in payment, even though the notes are not entirely worthless. Benedict v. Field, 16 IST. Y. (2 Smith) 595 ; S. C, 4 Duer, 154 ; Roget V. Merritt, 2 Caines, 117. But see Sigler v. Smith, 4 E. D. Smith, 280, which holds that if the vendor expressly agrees to receive the note of such third person, without recourse to the purchaser, he will be bound by the agreement, even though the maker of the note becomes insolvent before the notes are delivered. Where goods are sold and the purchaser pays for them by giving the note of a third person which is indorsed by the pur- chaser, such note will prevent a recovery for the goods on a claim for goods sold ; and if the creditor neglects to take proper steps for collecting the note, and he omits to give the pui'chaser notice of non-payment, the purchaser will be discharged. Day- ton V. Trull, 20 AVend. 345. So, when a bill of exchange is given in payment for goods purchased, the vendor must take proper steps to present the bill for acceptance, and take proper steps to charge the drawer, or he will be discharged, and the creditor will be compelled to rely on the bill as a means of pay- ment. Jones V. Savage, 6 Wend. 658 ; Ohamberlyn v. Delarine^ 2 Wils. 350 ; Smith v. Wilson, Andrews, 187, 228. The accept- ance of a note in payment of a prior debt will not operate as a suspension of the creditor's right of action, if the debtor neg- 572 BILLS AND NOTES. lects or refuses to perform all tliat he engaged to do. And, therefore, where an action had been commenced in the Supreme Court on a book account, and an agreement was made between the parties for a settlement, on condition that the defendant gave his note to the plaintiff for the amount, and paid the costs of the suit, and the defendant gave the note but neglected to pay the costs, it was held that the plaintiff had a right to proceed in the action. Putnam v. Lewis, 8 Johns. 389. When a creditor re- ceives an order or draft from his debtor upon a third person, for a given sum, which the debtor alleges is to be due in a few days, and the creditor takes the notes of such third person, payable in six and nine months, he makes the debt his own, and, in case of non-payment of the notes, he cannot call* upon the debtor for the amount of the draft. Southwick v. Sax, 9 Wend. 122. Where a debtor gives his own note for money which he has borrowed, and he also delivers to his creditor the note of a third person as a collateral security, the creditor will have no right to take a new note of such third person, and extend the time of pay- ment, and if he takes such new note he releases his debtor from the payment of his note, if the note of such third person was equal to the amount of the loan. Nexsen v. Lyell, 5 Hill, 406. Where the note of a third person is delivered on a debt due, and is received as a conditional payment, if the creditor uses diligence in demanding payment of the note at maturity, and in giving notice of the non-payment so as to charge the indorsers thereon, the liability on the original consideration revives, and the creditor may bring his action upon the original demand. HickUng v. Hardey, 7 Taunt. 312 ; Mussen v. Price, 4 East, 147. One who receives a note as a collateral security is bound to use ordinary diligence in its collection. Roberts v. Tfiompson, 14 Ohio St. 1. In strictness the debt does not revive, for it was not extin- guished. The dishonor of the paper merely gives a right of action, which was temporarily suspended during the time such paper was maturing. PucJcford v. Maxwell, 6 Term, 52. Forged negotiable paper, whether bills and notes, or bank notes and bills, are no payment, and it will not make any difference to the rule, to show that the person paying such bills supposed that they were genuine, Marlde v. Hartjield, 2 Johns. 455 ; Thomas V. Todd, 6 Hill, 340 ; Baker v. Bonesteel, 2 Hilt. 397 ; Jones v Ryde, 5 Taunt. 488. The party receiving such a bill must return it to the person of whom he received it, within a reasonable time BILLS AND NOTES. 57c after discovering its wortlilessness, or he will have to bear the loss. lb.; Kenny v. First National Bank of Albany, 50 Barb. 112. See Burrill v. Watertown BanTc and Loan Co., 51 id. 105. So, where bank bills are received in payment, and at the time of such payment the bank which issued the bills has in fact stopped payment and is insolvent, although the failure is not known at the place of payment, the loss falls ujjon the party paying, and not upon the party receiving the bills. Llghtbody v. Ontario Bank, 11 Wend. 9; S. C, 13 id. 101; Townsend v. Bank of Racine, 7 Wis. 185 ; Westfall v. Braley, 10 Ohio St. 158 ; Harley V. Thornton, 2 Hill (S. C), 509, note; Fogg v. Sawyer, 9 N. H. 365. But it has also been held that the loss falls on the party receiving the bills when neither of the parties knew that the bank had failed. Bayard v. Shunk, 1 Watts & Serg. 92 ; Yoiong v. Adams, 6 Mass. 182,185 ; Scruggs v. Gass, 8 Yerg. 115 ; Lowry V. Murrell, 2 Port. 282 ; Ware v. Street, 2 Head, 609. The rule as to returning such bills is the same as that in relation to forged paper. Camidge v. Allenby, 6 Barn. & Cress. 378 ; Raymond v. Baar, 13 Serg. & R. 318. The object in requiring a prompt return of such paper is, to enable each person to act without delay iu returning it to the person from whom he received it, and while his memory is fresh in relation to the transaction. ARTICLE V. BILLS AND KOTES NOT XEGOTIABLE. Section 1. In general. Bills of exchange are negotiable by the law merchant without the aid of any statute. And these instru- ments were in common use as negotiable instruments long before promissory notes. It is by virtue of the statute that promissory notes are made negotiable in the same manner that bills of exchange are. Ante^ 544, § 1. No promissory note is negotiable unless it is made so by statute. We have already seen what instruments are negotiable within the statute. Ante, 544. Under the former practice, all actions were required to be brought in the name of the person having the legal interest ; while under the present law it is required that all actiona shall be brought in the name of the real party in interest. But, under the old law, bills and notes were an exceptior^ to the gen- eral rule, for any person who held a negotiable bill or note might maintain an action upon it in his own name. This rule, however. 574 BILLS AND NOTES. did not extend to bills and notes not negotiable ; and, where they were assigned, the action was required to be brought in the name of the assignor, although the suit was prosecuted for the benefit of the assignee, who was the real party in interest. The Code has changed the rule, so far as to require all actions to be brought in the name of the real party in interest in the subject- matter of the action. This rule, of course, includes bills and notes, as well as other causes of action. But the Code does not, in any manner, change the rule in relation to what bills and notes are negotiable, or as to what are not negotiable. The effect of the change in the law has been to render choses in action assignable, and to authorize an action now, in the name of the assignee, in many cases in which it could not formerly have been maintained. It is thus evident, that the change in the law which authorizes an action in the name of the party to whom an assignable demand has been transferred, is not, by any means, equivalent to render- ing assigned demands negotiable ones. What are the requisites of negotiable paper, has been partially explained. Ante, 538. A brief allusion will now be made to those cases in which it is declared that certain bills and notes are not negotiable. An instrument in the form of a negotiable promissory note, which has a seal affixed to the signature of the maker, is not negotia- ble. Clark V. Farmers'' Manuf. Co., 15 Wend. 256. But a scrawl with a pen, of the letters L. S., at the end of the signa- ture, is not a seal in this State. Warren v. Lynch, 5 Johns. 239. Though the printed letters "L. S." in brackets have been held to constitute a seal. Giles v. Mauldin, 7 Rich. (S. C.) 11. A note which is payable in specific articles is not within the statute, and it is, therefore, not negotiable. Jerome v. Whitney, 7 Johns. 322. So an order for goods, which is drawn in the form of a bill of exchange, is not a bill of exchange, nor equivalent to such an instrument, and it is not negotiable. Atkinson v. Manks, 1 Cow. 692 ; Farnum v. Virgin, 52 Me. 576 ; Tibbetts V. Gerrish, 25 N. H. 41 ; Gaulden v. Sheeker, 24 Ga. 438 ; Hor- ton V. Arnold, 11 Wis. 139; Gusker v. Edd,y, 11 Gray, 502; Smith V. Giegrich, 36 Mo. 369 ; Arclier v. Clajlin, 31 111. 306. If a note, payable in specific chattels, contains the words, " for value received," the burden of proving a want of consideration is thrown upon the maker, since the law will presume that there was a valuable consideration. In negotiable notes and bills, value is implied in every acceptance or indorsement, but this BILLS AXD XOTES. 575 rale does not apply to paper not negotiable ; and, therefore, an accepted order, which is payable in merchandise, does not import a consideration. Jeffries v. Hager, 18 Mo. 272. There may be a case in which a note is negotiable, although payable in chattels. And where a note promised to pay a speci- fied sum of money, and it also promised to pay in goods on demand, it was held to be a negotiable note, because it was not optional with the maker to pay in goods, although the payee or holder had such an option, if he chose to exercise it. Hosstatter V. Wilson, 36 Barb. 307. Notes payable in chattels are as valid as though they were negotiable. They are a sort of special contract which is governed by some rules of law which do not apply to negotiable paper. And when chattel notes are assigned, the assignee may enforce them in the same manner that his assignor might have done. If no consideration is expressed on the face of such notes, it will be necessary to allege one in a complaint upon the note, in the same manner as when declaring upon any other cause of action arising upon contract. It has been seen already, that an assignee takes such a note subject to all equities existing against it at the time of the transfer, or such other equities as may arise before notice of the assignment. Ante, 561. Before noticing chattel notes more particularly, it may be proper to say a few words in relation to instruments in the form of bills of exchange, except that they are payable in chattels. Such instruments are usually called orders for goods. Where an order of this kind is drawn for a given sum, payable in goods or in the proceeds thereof, it is not a bill of exchange ; and, if the drawee accepts, he is not liable to the payee upon it, unless he has goods, or their avails, sufficient to pay the order ; and the person suing upon it must allege and prove these facts before he can recover. Atkinson v. ManTcs, 1 Cow. 692 ; Jeffries V. Hager, 18 Mo. 272. But, where a person draws such a bill npon his factor, with instructions to pay the amount to the payee out of the proceeds of goods in his hands, after paying prior acceptances, and such factor accepts the bill generally, he is liable to pay the amount to the payee, if such factor had sufficient funds for that purpose, after paying the prior acceptances, notwithstanding the drawer may have owed the factor a sum larger than the amount of the bill. Mdber v Massias, 2 W. Bla. 1072. By accepting the instrument generally, the factor estopped himself from claiming 576 BILLS AND NOTES. any allowance out of tlie fund for himself, until tlie prior accept ances, and tlie order or bill accepted were paid. So where the owner draws an order upon a person for a portion of his property, which is in the hands of his factor, or a warehouseman, or his agent, and the order is accepted in general terms, the title to the property mentioned in the order passes, and the vendee is entitled to the property. Gilleti v. Hill, 2 Cromp. & Mees. 530 ; S. C . , 4 Tyr. 290 ; Chapman v. dearie, 8 Pick. 38. An acceptance may be absolute, or conditional. When the acceptance is conditional, and is not to become absolute unless upon the happening of a specified event, the acceptance is not binding, and cannot be enforced until the occurrence of the event. Swan v. Cox, 1 Marsh. 176. But, when the event happens, the acceptance becomes absolute and binding, and it may then be enforced if payment according to the order and the acceptance is refused. Julian v. STiobrolce, 2 Wils. 9 ; Smith v. Abbot, 2 Strange, 1152. Where the drawee of an order for goods produces it at the trial, this is evidence of a sale of goods by the drawee to the drawer, and of a delivery of them to the payee, at the drawer's request. In this respect they differ from orders drawn for the payment of money, which, if nothing appears to the contrary, are presumed to be drawn upon funds of the drawer in the hands of the drawee. Al'oord V. BaTcer, 9 Wend. 323. Orders for the delivery of goods do not require any acceptance, and are usually satisfied by the delivery of the property on presentation. Briggs v. Slzer, 30 N. Y. (3 Tiff.) 647. The holder of such an order may, however, require its acceptance in writing, and, when required, the drawee is bound so to accept. lb. A landlord, for value received, gave an order on his tenant to pay W. the rents accruing during a certain time, which the tenant, when the order was presented, said he would pay, and the land lord subsequently notified the tenant not to pay, but the latter disregarded the notice and paid the order, and it was held that the tenant did right, and that the landlord's claim for rent was extinguished. Morton v. Naylor, 1 Hill, 583. An order of this nature is an equitable assignment of the fund on which it is drawn, and the drawee, when notified of the assignment, must pay accordingly, although there is no formal acceptance either written or verbal. lb. So, where the owners of certain securities assign them in trust to discharge certain specified debts, "the balance to be held subject to their order," and the assignees J BILLS AND NOTES. 577 accept the trust, and tbe assignors afterward give an order on them for the balance, of which they are properly notified, it is held that the payee of the order may recover against them to the extent of the balance in their hands, though they have not form- ally accepted the order, because the acceptance of the trust is in effect a promise to the payee of the order. Weston v. Barker^ 12 Johns. 276. But an order drawn payable out of a specified fund is not an assignment pro tanto of the fund, unless a con- sideration was paid therefor. Alger v. Scott^ 54 N. Y. (9 Sick. 14. There is one important distinction between negotiable bills of exchange, and orders for the delivery of goods, when the owner of them draws an order for their delivery, whicli is shown to the person who has them in his possession. In the former case the drawee is not liable before he accepts the bill, but in the case of an order for goods, the title to them passes to the payee of the order whether the drawee accepts it or not. The order operates as a transfer of the title. Briggs v. Slzer, 30 N. Y. (5 Tifi".) 647. So, when an order is drawn upon a particular fund, as in the case of the rents just mentioned, the title is transferred by the order by way of an assignment, and no acceptance is necessary. But, in all such cases, whether of an order upon a particular fund or that of an order for goods, the payee must show that the drawer had title to the fund, or that he owned the goods, unless the drawee accepts the order, which is an admission of the right of the drawer to the property or the fund. Lowery v. Steward, 25 N. Y. (11 Smith) 239 ; Gallagher v. McTiols, 6o'n. Y. (15 Sick.) 438 ; 16 Abb. (N. S.) 387. Without such acceptance of proof of the drawer's title to the fund or goods, no action can be maintained by the payee or his assignee. It has been seen, ante, 561, that negotiable promissory notes for the payment of money differ from chattel notes in rela- tion to negotiability, and as to the equities of prior parties to the paper, or prior holders of it. But there are other points in rela- tion to chattel notes which it is important to understand and to observe in practice. It is a general rule that a party who is bound to render a particular service, or to make a payment in money by a given day, must seek the party to whom the duty or the debt is due. In relation to notes payable in specific articles, the law is well settled upon nearly all important questions. This kind of notes sometimes raises questions as to the time when and the place where they are payable. They may, however, be prin- VoL. L— 73 678 BILLS AND NOTES. cipally reduced to four classes : 1. When the note is made by a mechanic, manufacturer, merchant or producer of the article ; 2. When there is no time or place of payment mentioned in the note, whether it is made by a mechanic, etc., or by any othei person ; 3. When the note is payable on demand, but no place of payment is specified ; 4. When the note specifies both the time and place of paj^ment. First. When a chattel note is made b}^ a mechanic, manufac- turer, merchant or producer, and the note does not specify any place of payment, the general rule is, that the payee of the note, or his assignee, must go to the shop of the mechanic, the manu- factorj' or warehouse of the manufacturer, the store of the mer- chant, or the farm of the producer, and demand the property specified in the note. And in such cases, until a demand is made at such places, no breach of the maker's contract exists, and no action can be maintained against him. The reason of this rule is evident, and the rule itself is a just one. Every person who manufactures or produces articles to sell, or who keeps them for sale as a business, is presumed to have facilities, at those places, for the delivery of the articles which he makes or keeps for sale ; and it is also presumed that he will always be properly supplied with such articles as he has promised to deliver, whenever they are called for at such place, while he could not be expected to be so supplied with the articles elsewhere. A merchant gave a due bill, payable to A or order, for $2,000, payable in merchandise out of his store, on demand, at a place specified by street and number, in the city of New York, and the goods were to be sold and delivered at a price not more than twenty five per cent above the cost price. It was held that the terms of the note were complied with, by delivering goods at prices twenty-five per cent above cost to the merchant, though that price might be much more than twenty-five per cent above the wholesale market price, at the time of delivering such goods ; and also that the merchant was at liberty to continue selling his goods, without replenishing the stock, until demand for delivery in full, for the contract; and that, so long as the merchant retained sufficient goods for that purpose, the other party could not complain that he was left to a selection from an inferior assortment, and goods less marketable than the stock at the date of the contract ; and further, that after a reasonable notice by the merchant to the other party, to select his goods at the place named in the note, such party was bound to accept them at any BILLS AND NOTES. 679 otlier reasonably convenient place in the same city, to which they might be removed ; and that a subsequent demand, at the original place or elsewhere, for a delivery of the goods at the original place, was ineffectual for the purpose of rendering the maker liable to pay in money. Buck v. BurTc, 18 N. Y. (4 Smith) 337. Such a contract or note authorizes the person who is entitled to receive the goods, to demand them in parcels. lb. But a refusal to deliver goods to the value of twenty dollars, which had been packed up in boxes for removal, after the notice to the party to call for his pay at the vendor's original location, does not constitute a breach of the contract. lb. A note, payable in specific articles, may be demanded in par- cels ; but where an article has been made to order for a customer, such article cannot be properly demanded in payment of the note. Yance v. Bloomer, 20 Wend. 196. Second. When a chattel note is given, and no time or place of payment is specified, the holder of the note must make a demand of the articles at the maker's place of business or sale, before an action will lie upon the note. lb. ; Lohdell v. Hopkins, 5 Cow. 516; Burkee v. Marshall, 7 Wend. 312; Cook v, FerralV s Admrs., 13 id. 285 ; Counsel v. Vulture Mining Co., etc., 5 Daly, 74. Where a chattel note specifies a time of payment, but does not mention any place for it, the note is pa3^able at the residence of the creditor, if the articles are portable. Goodwin v. Hol- hrook, 4 AVend. 377. As we have seen, ante, the general rule is, that the store of the merchant, etc., is the place of payment, where the contract is silent as to place of payment. But this rule ceases where the contract is modified by collateral circum- stances which show that a different place of payment was intended. When the goods are a subject of general commerce, and are purchased in large quantities for reshipment, and the purchaser resides at the place of reshipment, and has at such place a store-house and dock for that purpose, his place of busi- ness is ordinarily the place of deliver}^ Bronson v. Gleason, 7 Barb. 472. Where a manufacturer of salt at Liverpool executed a writing as follows : "I have this day agreed with Bronson & Crocker, of Oswego, to sell them one boat load of salt per week, and deliver the same to them, in good order, equal to four hun- dred barrels each week, from this time to the first of November next," etc.; it was held that, upon the reasonable constrncticn of 580 BILLS AND NOTES. tlie agreement, in connection with the surrounding circumstances, the salt was to be delivered at Oswego. lb. Where a note is payable in specitic articles, which are to be delivered by the maker at the residence of the payee, by a time named, but a timely selection of the articles is to be made by the payee, who makes no selection, though prior to the time for payment he instructs the maker not to send any of the articles until he gives notice of what articles he wants, the maker is not thereby discharged from his liability on the contract. Gilbert v. Danforth, 6 N. Y. (2 Seld.) 585. The payee, by such instruc- tions and failure to select, does not lose liis riglit of selection^ unless the maker, before such right is exercised, has paid the amount of the note in articles of his own selection. lb. Where such a note remained unpaid for two years after it became due, and the payee then named the articles which he required in payment, and demanded them of the maker, it was held that a neglect or refusal by such maker, to comply with the demand in a reasonable time, rendered him liable to pay the amount in money. lb. When a chattel note is payable at a particular place, other than the residence of the promisee, it is the duty of the promisor, after making the delivery at that place, to notify the promisee of such delivery, without delay. Newcoirib v. Cramer, 9 Barb. 402. Third. Where such a note is payable on demand, a special demand is necessary before an action can be maintained upon it. So a note which is given by one who keeps a saw-mill and lumber yard, for a specified sum, "payable in lumber, at cash price, when called for," without mentioning a day or place of payment, requires a demand at the mill yard, before an action can be maintained. Rice v. Qhurcliill, 2 Denio, 145. A demand at the mill yard is sufficient, though neither the maker nor any one authorized to make the payment, is found there. lb. If, upon such demand, the maker be absent, it may be made of any one in charge ; and if there be no such person, it may be made publicly. lb. The maker of such an engagement is bound to be at the place of payment at all reasonable hours, prepared to perform the agreement. lb. When a note is made payable in " sawing" lumber at a saw-mill, at a certain time and place, and at the time fixed the maker is absent from the place, and has no one present to do the work, and the payee is in no manner responsible for his absence, the note becomes a money demand. Schnier v. Fay, 12 Kans. 184. BILLS AND jS"OTES. 561 Fourth. "When a chattel note specifies a time and place of payment, it is the duty of the maker to pay the note at such time and place without any previous demand ; and a neglect or refusal to do so will render him liable to pay the amount in money. On a contract for services paid for " out of the store" of a third person, an action may be maintained without proof of a demand of payment at such store. Braydon v. Poland^ 61 Me. 323. It will be a good defense to show that the goods were ready for delivery at the store mentioned. lb. See LocTilin v. Moore, 57 N. Y. (12 Sick.) 360 ; 5 Lans. 307. Where a note is payable in ponderous articles, at a day certain, but no place of payment is specified, the maker of the note ought, if he desires to make a tender, to seek the payee or holder of the note before the day of payment, and ascertain where he will have the arti- cles delivered ; and if a reasonable place is named, he is bound to deliver them at that place. Burns v. Graham, 4 Cow. 452. If the note is payable generall}^, or at a place specified, the articles ought not to be tendered in bulk, mixed and undistinguishable from others of the same kind ; but they should be separated and distinguished, so that the payee may know what to take. lb. AVhen portable articles are to be delivered in payment of a chattel note, on or before a specified day, but no place of pay- ment is specified, the residence of the creditor is the place of payment. La Farge v. Rickert, 5 Wend. 187 ; Goodwin v. Hol- brook, 4 id. 377. But when such a note is payable on demand, or is payable in articles which are manufactured, etc., by the maker, the note is payable at the maker's place of business, etc. Ante, 578. Where a note which is not negotiable is sued on by any person other than the payee, the possession of the note in court, at the trial, by the plaintiff, is not prima facie evidence that the note was transferred to the plaintiff before the action was commenced, as is the rule in relation to negotiable paper. Barrick v, Austin, 21 Barb. 241. Notes not negotiable are subject to all equities which could have been enforced against the payee. Lee v. Swift, 1 Denio, 565 ; Rogers v. Morton, 12 Wend. 484 ; Barrick v. Aus^ tin, 21 Barb. 241. 682 BILLS AND NOTES. ARTICLE VI. GUARANTY OF BILLS AND NOTES. Section 1. In general. The subject of guaranties in relation to promises to answer for the debt, default or miscarriage of an- other will be discussed elsewhere. In all cases of guaranty there must be a principal, and a guar- antor or surety. And it is a general rule that the liability of the surety is merely co-extensive with that of the principal. Though there are exceptions to this rule, in the case of infancy, and in other instances in which the principal is not bound by the origi- nal contract. But, whenever a principal is discharged from his obligation, by payment, accord and satisfaction, release, or in any other manner, the surety or guarantor is also discharged. This result flows from the nature of the contract. A guarantor merely undertakes to pay the debt of another in case he does not pay it, and whenever the principal debt is paid or discharged, the surety is released from his liability. A renewal of a debt, by taking a new note from the principal, discharges the surety or guarantor, since the debt which he guaranteed is canceled. A guaranty is a special contract, and the guarantor is not in any sense a party to the note. Lamorieucc v. Hewit, 5 Wend. 307 ; Mlis v. Brown, 6 Barb. 282 ; Miller v. Gaston, 2 Hill, 188, 190. A contract of guaranty, though indorsed upon a negotiable note and drawn in general terms warranting its collection, is not of itself negotiable ; because the statute which makes promissory notes negotiable, is not extended to any other instrument relat- ing to the note. Lamorieux v. Hewit, 5 Wend. 307 ; post. See Smith v. Starr, 4 Hun, 123 ; 6 S. C (T. & C.) 387. Before the enactment of the Code, an action could not have been maintained upon a guaranty in the name of any other per- son than that of the person to whom it was given. lb. But a contract of guaranty, although not negotiable, is never- theless assignable, when it is so drawn as to be available in the hands of any person who may hold the note upon which it is indorsed. Where a general guaranty is written upon a negotiable promis- sory note, and the note is transferred, the sale and delivery of the note, with the guaranty upon it, furnishes prima facie evi- dence of the sale of the contract of guaranty. And the posses- BILLS AND NOTES. 5m sion of the note and the guaranty is prima facie evidence cf a right in the holder to the guaranty, and will authorize him to maintain an action thereon, unless it be shown that the contract of guaranty was not transferred at the time the note was trans- ferred. Cooper V. Dedrick, 22 Barb. 516 ; and see McLaren v. Watson's Exrs, 26 Wend. 425 ; S. C, 9 id. 557. But when a subsequent holder of a promissory note sues upon a guaranty indorsed thereon, claiming that the guaranty passed to him on the transfer of the note, it is competent for the guarantor to show that it was not the intention of the parties that the guaranty should accompany the note on the transfer of the latter to the plaintiff, but that, on the contrary, it was expressly agreed that he should take the note at his own risk. Gallagher v. White, 31 Barb. 92. S. made a note payable to W., or bearer, W. transferred the note to B., in part payment for a piano, at the same time guaranteeing its collection by an indorse- ment upon the back thereof. S. failed to pay the note at maturity, and AV. took it up from B. W. subsequently transferred the note to the plaintiff, who expressly agreed to take the same at his own risk. Through inadvertence, however, the guaranty was not erased at the time of the transfer ; it was held that the guaranty was a contract between W. and B,, and that when W. paid the amount of the note to B. and took it up, the guaranty was extin- guished, having performed its office, and that the plaintiff could not maintain an action against AY. upon such guaranty. lb. Where a guaranty warrants the payment and collection of a note to the payee or holder, or bearer, and it is indorsed upon a negotiable promissory note, such guaranty is negotiable, and an action could have been maintained in the name of the owner of the note, upon such guaranty, even before the Code. Ketchell V. Burns, 24 Wend. 456 ; Miller v. Gaston, 2 Hill, 188. No no- tice of dishonor or non-payment is necessary in the case of a guaranty, as is required by the rules relating to an indorsement. Brown v. Curtiss, 2 Comst. 225 ; Allen v. Rightmere, 20 Johns. 365. A guarantor and the principal debtor may be sued jointly, if the principal and the guarantor are both bound by the same instrument. Code, § 120 ; Carman v. Plass, 23 N. Y. (9 Smith) 286. See Cridler v. Curry, m Barb. 336 ; 44 How. 345 ; Field v. Van Cott, 5 Daly, 308 ; 15 Abb. (N. S.) 349. But it has been held by the supreme .30urt, that where a guar- anty and the principal debt are written on different papers, the principal and the surety cannot be sued together. De Bidder v. C84 BILLS AIS'D NOTES. Sdhermerliorn^ 10 Barb. 638 ; Allen v. Fosgate, 11 How. 218 , Barton v. Speis, 5 Hun, 60. The terms of a guaranty must be complied with before the guarantor can be rendered liable upon the contract. Henderson V. Marvin, 31 Barb. 297. And where a guaranty for the pay- ment of goods to a specified sum was given, on a credit of six months, and the goods were furnished, but the vendor subse- quently extended the time of payment for a part of the amount, and shortened the time as to the other portion of the debt, and took the note of the principal therefor, it was held that the surety was discharged. lb. Where the person to whom a guaranty is given is bound to do some act before there is any liability on the part of the guarantor, such persoii. must show that he has performed the act, or he can- not maintain an action against the guarantor. Eddy v. Stanton^ 21 Wend. 255 ; Taylor v. Bullen, 6 Cow. 624 ; Nelson v. Bost- wicli, 5 Hill, 37. In case of a guaranty, the obligation to prose- cute the principal debtor within a reasonable time, and with due diligence, is a condition precedent to the liability of the guaran- tor. Gallagher v. White, 81 Barb. 92; Craig v. ParJcis, 4:0 1^. Y. (1 Hand) 181. A request to prosecute the principal debtor, when he is insolvent at the time of the request, and so remains, is not sufficient to discharge the surety. Field v. Cutts, 4 Lans. 195. Guarantees are sometimes expressed in the form of letters of request. Sucli letters are general or special. They are general when addressed to any or to all persons, without naming any one in particular. They are special when addressed to one per- son or firm in particular, by name. When addressed to all persons, a letter is in effect a request made to any person to whom it may be presented, and any individual may accept and act upon the proposition contained in it, and when he does so, that which was before indefinite and at large, becomes definite and fixed ; a contract immediately springs up between the person making the advance and the writer of the letter, and it is thence- forward the same thing in legal effect as though the name of the former had been inserted from the beginning. Birckhead v. Brown, 5 Hill, 642, 643, per Bronson, J.; S. C, 2 Benio, 375 ; Union BanTc v. Coster, 1 Sandf. 563 ; S. C, 3 Comst. 203. A general letter of credit authorizes any person to whom it is pre- sented to act upon the proposition therein contained ; and when any person does act thereon, a contract arises between him and BILLS AND NOTES. 5S5 the maker of tlie instrument, in tlie same manner as tliongti it liad been addressed to him by i^ame. Union Bank v. Coster^ 3 Comst. 203 ; S. C, 1 Sandf. 563 ; ante, 81, 98. But where a letter of credit is sj)ecial, and is addressed to a particular person or firm, no other person than the one to whom it is addressed can maintain an action upon it, although he may- have advanced the money upon it. Blrckhead v. Brown, 5 Hill, 634; S. C, 2 Denio, 375. Such letters are not negotiable. lb. There must be a consideration for such letters as well as for any other contracts. But where a letter of credit is issued, the request which it contains is sufficient consideration if the money is advanced on it. Union Bank v. Coster, 3 Comst. 203-; S. C, 1 Sandf. 563, and see ante, 81, 98. ARTICLE VII. INDORSEMENT AND TEANSFER OF BILLS AND NOTES. Section 1. In geueraL The negotiability of bills and notes con- stitutes a most important part of the instruments. It is this quality which principally distinguishes a bill of exchange or promissory note from ordinary contracts. By the general rules of the common law, clioses in action were not assignable. But bills of exchange were an exception, and were assignable at com- mon law. Promissory notes, however, were not negotiable under the rules of the common law, but they now are, and for a long time they have been assignable by virtue of statutes enacted for that purpose. The term "assignable," as it has been just em- ployed, is synonymous with the word "negotiable." Negotiable bills and notes are payable to the bearer of them, or to the order of the payee named therein. At any rate they must have terms of negotiability to render them negotiable. And, when they are negotiable within the rules of law, they may be transferred from hand to hand so as to give the indorsee or holder a right of action in his own name, as against any or all of the antecedent parties to the instrument. There are many cases in which a chose in action is assignable, so as to authorize an action in the name of the assignee, if he is the real party in interest ; but this fact does not by any means render the right of action which is so assigned, a negotiable instrument. Where a bill or note is payable to a person named, or to hearer , Vol. L — 74 586 BILLS AND NOTES. a transfer of the instrument may be made by a mere delivery witliout any writing. And wliere a note is payable to B, or bearer, it may be negotiated by delivery only, even though indorsed by B. Wilhour v. Turner, 5 Pick. 526 ; Dole v. Weeks, 4 Mass. 451. But where it is made payable to a specified person, Dr his order, it must be indorsed by the payee to render it negotiable. Harrop v. Flslier, 10 C. B. (N. S.) 196 ; Ilestom, v. Williamson, 2 Bibb, 83 ; Bussell v. 8wa7i, 16 Mass. 314. The payee of a note may transfer it by an indorsement in pencil marks. Classon v. Stearns, 4 Vt. 11. A bill or note payable to the order of the payee may be assigned without indorsement ; but it thus assigned, instead of being transferred by a proper indorsement, the assignee will take the paper subject to all equities, in the same manner as though the instrument were not negotiable, or as though it were over due. Billings v. Jane, 11 Barb. 620 ; Hedges v. Sealy, 9 id. 214 ; Houghton v. Dodge, 5 Bosw. 326 ; White v. Broion, 14 How. 282 ; Haskell v. Mitchell, 63 Me. 468 ; Whistler v. Foster, 14 C. B. (N. S.) 248. If a note payable to bearer be indorsed by the payee, he will be liable as an indorser. Dams v. Wilson, 31 Tex. 136. The transfer of a bill or note is a contract, and there must be capacity and assent, to render the transfer valid. Ante, 82, Assent, etc. Where a note is payable to a corporation, or its order, and the note is indorsed by the president of the corporation, and it is then delivered to the indorsee, it is necessary for the latter to prove the authority of the president to indorse the note, so as to transfer the title, when he sues on it, and the indorsement is de- nied in the pleadings. Marine Bank v. Clements, 3 Bosw. 600; 31 N. Y. (4 TiflT.) 33. A general resolution sufficiently broad to cover the transaction will be sufficient evidence of the president's authority ; it is not necessary to show an authority for that par- ticular transfer. Elwell v. Dodge, 33 Barb. 336 ; see Belden v. Meeker, 2 Lans. 470; 47 N. Y. (2 Sick.) 307; Nelson v. Eaton, 26 N. Y. (12 Smith) 410. The contract of an infant is voidable, and not absolutely void. He may, therefore, indorse a bill or note so as to transfer the title, though he would not be estopped from avoiding the liability of an indorser, by pleading his infancy Nightingale v. Withington, 15 Mass. 272 ; Sebel v. Tucker, 8 B. & S. 833. Bj- the rules of the common law, bills and notes belonging to BILLS AND NOTES. " 587 the wife at the time of the marriage, or at any subsequent time, belonged to her husband, and he was the proper person to indorse them. But the statute law of the various States has abrogated these common-law rules. And a married woman now has as absolute a title to her property, including bills and notes, as she would have if she had remained a single woman. See Laws of N. Y. 1848, chap. 200, and as amended, 1849, chap. 875 ; Laws of 1860, chaj). 90 ; as amended, 1862, chap. 172. As the law now stands, a mar- ried woman is the proper person to indorse a bill or note which be- longs to her, and which is payable to her order. And when it is her property, and it is payable to herself, or bearer, she is the proper person to transfer it by delivery. In short, all bills and notes which belong to her should be indorsed or transferred by her in the same manner as though she were an unmarried woman. See Married Women; Husband and Wife. On the death of the holder or payee of negotiable bills or notes, his executor or administrator becomes vested with the title, and he has the right and power to transfer them by an indorsement, or by a delivery, when that is sufficient. Raiolinson v. Stone, 3 Wils. 1; S. C, 2 Strange, 1260; and see 2 Burr. 1225. An administrator may indorse and transfer a note payable to his in- testate, and the indorsee may maintain an action on the note in his own name. Calioon v. Moore, 11 Vt. 604; Grisioold v. Bar- num, 5 id. 269 ; Morse v. Clayton, 13 Sm. & Marsh, 373 ; Cryst V. Cryst, 1 Smith (Ind.), 370. Such indorsement is valid, and may be enforced in any other State. Gram v. Hannah, 6 Jones (Law), 94. A transfer of a note due to an estate by an administra- tor, in payment of his own debt, gives to the assignee with notice no right of recovery. Scott v. Seartes, 7 Sm. & Marsh, 498. Where a bill or note belongs to a person, and it is in his pos- session at the time of his death, no person but his executor or administrator can transfer the title to it to a third person, lb, ; Lounshury v. Depeio, 28 Barb. 44 ; Heidenheimer v, Wilson, 31 id. 636 ; Edwards v. Camphell, 23 id. 423. Executors and administrators hold the bills and notes of the testator, or intestate, in a representative capacity ; and consequently, each of them represents the deceased, and the act of each is binding upon the estate when he transfers such bills or notes. A transfer by one of several executors or administrators is as valid as a transfer by all of them. Bogert v. Hertell, 4 Hill, 492 ; S. C, 9 Paige, 52 ; and see Mealmigs v. Cromwell, 1 Seld. 136 ; Murray v. Blatch- ford, 1 Wend. 583. But the right to indorse a bill or note for 588 BILLS AND NOTES. the purpose of transferring it does not include the power to in dorse notes generally so as to bind the estate. And where an executor or administrator assumes to bind the estate by giving a note as executor or administrator, he must be careful to employ language which shows that the note is payable out of the assets of the estate, or that he makes the note in a representative capacity ; or he will be personally liable to pay it. CMlds v. Monins^ 2 Brod. & Bing. 460 ; Poioell v. Graham, 7 Taunt. 580 ; King v. Thorn, 1 Term, 487. Administrators who have given a note for the debt of their intestate cannot be made personally responsible for its payment, unless it is shown that they have assets, or that forbearance was the consideration of the note. BanTi of Troy v. Topping, 9 Wend. 273. A note given by an executor or administrator is prima facie evidence of assets, though the presumption may be rebutted, and it may be shown that there was a deficiency of assets. BanTc of Troy v. Topping, 13 Wend. 557 ; see Sims v. Stillwell, 3 How. (Miss.) 176 ; Mucker V. Wadlington, 5 J. J. Marsh. 238. One who signs an order "A B, administrator," with nothing to show or designate the deceased person or estate, will be personally liable as drawer. Tryon v. Oxley, 3 Iowa, 289. Transfers of bills and notes by corporations, or to them, are of frequent occurrence. An indorsement of a note by the holder, in these words : " Pay to E. 0., cashier, or order," made upon the purchase of it by the bank of which E. 0., was cashier, is a legal transfer of the note to the bank. Watervliet BanTi v. White, 1 Denio, 608. An officer of a corporation, to whose order, as such, a note executed to it is payable, and who indorses the note, adding to his name his official character, and negotiating it on behalf of the corporation, is not personally re- sponsible as indorser. The effect of such an indorsement is merely to transfer the paper. Bahcock v. Beman, 11 N. Y. (1 Kern.) 200; S. C, 1 E. D. Smith, 593; MoU v. Hicks, 1 Cow. 513. A bill drawn payable to an individual as cashier, is in judgment of law, payable to the bank of which he is an officer. Bank of New York v. Bank of Ohio, 29 N. Y. (2 Tiff.) 619. An assignee of an insolvent estate, who indorses a note as "assignor" in the transfer of a note belonging to the estate, is not personally liable. Bowne v. Douglass, 38 Barb. 312. An indorsement of a bill or note usually operates as a transfer of the instrument, and it also constitutes an agreement by the indorser to pay the instru- ment transferred upon certain conditions. But an indorsement may be so framed as to exclude any liability on the part of the BILLS AND NOTES. 58& indorser. And, when it is evident from the indorsement, that no personal liability was assumed, none will be enforced by the law. It is upon this principle that an officer of a corporation is not liable upon an indorsement for the mere purpose of transferring a bill or note belonging to the corporation, when the transfer is made exclusively for the benefit of such corporation. So, the same rule applies when a note is indorsed by an agent, and ths instrument shows on its face that he was a mere agent. Hicks v. Hinde, 9 Barb. 528 ; Mott v. Hicks, 1 Cow. 514 ; Babcock v. Beman, 11 N. Y. (1 Kern.) 200; Hood v. Hallenbeck, 7 Hun, 362. The right to transfer a bill or note is usually vested in the payee named in the instrument. By making the note, or by accepting the bill and issuing it, the maker and acceptor assert to the world that the payee is competent to negotiate and assign the paper ; and they will not be afterward permitted to gainsay the assertion so made. The general rule in relation to the trans- fer of bills and notes is, that no one but the payee or the person legally interested in the instrument can convey the title by an in- dorsement. Canal Bank v. Bank of AWany, 1 Hill, 287; ante, 587. But where the payee named in a bill of exchange is a stranger to the transaction, and he has no interest in it, nor any knowledge of it, his indorsement is not necessarj^, if the draAver forges the signature of such payee to the indorsement, and then puts the bill into circulation. In such a case the drawer of the bill is liable upon it to the person who discounted it, or to any bona fide holder thereof ; and if the drawee pays the money upon it to a bank which holds the bill for collection, he cannot recover back the amount paid. Coggill v. AmericoM Exchange Bank, 1 Comst. 113. But in such a case, if the payee is a bona fide owner of the bill, and his signature to the indorsement is forged, and the drawee or acceptor pays the money to one who holds the bill under this forged indorsement, the payment will be made at the risk of the drawee, and he will be compelled to pay tlie amount of the bill to the payee, whose title is unimpaired by the forgery. Canal Bank v. Bank of Albany, 1 Hill, 287. The drawee of a bill of exchange is bound to ascertain that the person to whom he makes payment is the genuine paj^ee, or ia authorized by liim to receive it. It is no defense against such payee, that the drawee in the regular course of business and with nothing to excite suspicion, paid the bill to a holder in good faith and for value under the indorsement of a person bearing 590 BILLS AND NOTES. the same name as the payee. Gra'oes v. American Exchange Bank, 17 N. Y. (3 Smith) 205 ; Mead v. Young, 4 Terra, 28 ; National Parle Baiik v. Ninth National Bank, 46 N. Y. (1 Sick.) 77 ; 7 Am. ilep. 310. The rule that the payee must iirst indorse a note is founded upon the fact that he alone can trans- fer it ; when there is no transfer of the note, the reasun of the rule fails, and it is therefore inapplicable. Waterhury v. Sin- clair, 26 Barb. 455 ; 25 How. 691, n. And where a note was made by D. payable to W., or order, and before the delivery thereof to the payee, it was indorsed by S., to enable D. to obtain credit with W. ; it was lield that S. was liable as indorser to the payee, upon proof of presentment, non-pajanent and notice. lb. It was also held that it was not necessary that there should be an indorsement by the payee, in order to perfect his rights. lb. The names of all the parties to a bill or note ought to be plainly written ; and where there are two or more persons of the same name in a place, some description of the person ought to be given, for the purpose of identifying the real person intended. The omission will not prejudice, if the proper person is ascer- tained. An indorsement may be made in pencil mark, and by the initials instead of the full name, if the indorser chooses to write his name in that manner. Ante, 554, 586. Since the enactment of the Code, a mere holder of a negotiable promissor}^ note, who has no interest in it, cannot now, as he might formerly, maintain an action in his own name upon it. If the plaintiff's name does not appear upon the instrument, it is essential for him to show in some wa}^ the connection between himself and the note, as tli^t it has been indorsed or transferred to him, or that he is the holder or owner of the note. Code, §§ 111, 113, 162 ; Lord v. Chesehrough, 4 Sandf. 696 ; White v. Brown, 14 How. 282. Where the payee or holder of a negotiable bill or note intrusts it to an agent for the purpose of negotiating it, or permits him to deal with it as his own, if the agent fraudulently transfers it to a bona fide pui-chaser for value and without notice of the defect in the agent's title, such hona fide holder will hold the note in preference to the real owner. Stalker v. McDonald, 6 Hill, 93. An indorsee of a negotiable promissory note, who receives it in the usual course of business, without notice that it was made for a specific purpose, or of any equities between the parties, is a holder in good faith, and if he takes it as a collateral Becurity, he will be deemed a holder for value. Bank of Nem BILLS AND NOTES. 691 Yoilc V. Vanderhorst, 32 N. Y. (5 Tiff.) 553. See Wea^r^er v. Barden, 49 N. Y. (4 Sick.) 286 ; Piatt v. Beehe, 57 N. Y. (12 Sick.) 339. But if such note or bill is taken by a person who does not pay value, or by one who has knowledge of the facts as to the title, he will not hold it as against the true owner. Spear v. Myers, 6 Barb. 445 ; WJiite v. Springfield BanJc, 1 id. 225 ; Stewart v. Small, 2 id. 559 ; Goldsmld v. Lewis County Bank, 12 id. 407 ; JVew York Exchange Co. v. Be Wolf, 3 Bosw. 86 ; Farrington V. Frankfort Bank, 24 Barb. 554. When negotiable paper is transferred to an agent for a special purpose, which is plainly expressed in the indorsement, such paper cannot be transferred so as to prejudice the rights of the true owner. An indorsement thus, "pay to A B for my use," or "pay to C D, or order, for my use," is sufficient notice that the paper is the property of the indorser, and not that of the indorsee. Snee v. Prescot, 1 Atk. 245, 249 ; Attwood v. Munnings, 7 Barn. & Cress. 278 ; Sigour- ney v. Lloyd, 8 id. 622; Edie y. East India Co., 2 Burr. 1227 ; Ancher v. Bank of England, 2 Doug. 637. When a bill upon the face of it purports to be accepted per procuration, that circum- stance is notice to any party who takes the bill, that the acceptor has but a limited authority, and the holder cannot maintain an action against the principal if the authority has been exceeded. Stagg v. Elliott, 12 C. B. (N. S.) 373 ; Alexander v. Mackenzie, 6 id. 766. But where a person permits another to act as his general agent, he is bound by a contract made by the agent, although the latter declares himself to be acting "by procura- tion," and has received special instructions, which he exceeds. Smith V. McChiire, 3 Hurlst & Norm. 554. When a bill or note is made payable to several persons, or when it is indorsed to more persons than one, who are not part- ners, all of the payees or indorsees must unite in transferring the instrument. Carioick v. Yioliery, 2 Doug. 653, n. ; Snelling v. Boyd, 5 Monroe, 172. But where a promissory note is made payable to the order of A and B, and is indorsed A and B by one of the payees, with the sanction and apjDroval of the others, this is a sufficient indorsement, although there is no such firm aa A and B. Cooper v. Bailey, 52 Me. 230. But when a note is made payable to a firm, or when a note is indorsed to a firm, either of the partners has authority to trans- fer the instrument by an indorsement of the partnership name. CumpstoJi V. McNair, 1 Wend. 457, 463. Or by an indorsement 592 BILLS AND NOTES. in his individual name. Ederlt v. Strong, 5 Hill, 163; ,S. C, 7 id. 585 ; Alabama Co. v. Brainard^ 35 Ala. 476. After the dissolution of a partnership, all the partners must unite in the transfer of a partnership security, in order to vest the title in the transferee. Geortner v. Trustees of Canajoharle, 2 Barb. 625 ; National Bank v. Norton, 1 Hill, 572 ; Sanford v. Mickles, 4 Johns. 224. Upon the death of one of the partners in a firm, the survivor is entitled to the possession of the accounts, notes, bills, etc., and he has authority to collect all demands due to the firm. A72.te. And in such a case, the survivor is the proper person to indorse and transfer a bill or note which belonged to the firm at the time of the death of such partner. His indorsement will transfer the title ; though the survivor cannot create liabilities against the representatives of the deceased partner. A general assignment made by an insolvent debtor for the benefit of his creditors, transfers the legal title to the assignee ; and he is the proper person to indorse bills or notes which are thus assigned. A bill or note may be transferred before it is due, or after that time. But there is one important difference in relation to the time of the transfer, since a note which is trans- ferred after it becomes due, subjects the party taking it to all the equities which exist at the time of the transfer, while a trans- fer of a negotiable bill or note before it is due, for value and in good faith, entitles the holder to recover irrespective of any prior equities. Ante, 661. A bill or note does not lose its negotiable character by being dishonored, and the indorsement, although made after dishonor, follows the nature of the original contract, and is negotiable, unless it contains express words of restriction. Leamtt v. Put- nam, 3 Comst. 494. But in such a case the note cannot be pre- sented, at maturity, by the indorsee, and the contract of the indorser then is to pay on demand of the maker, his neglect or refusal to pay, and notice to the indorser, within a reasonable time after the transfer. lb. ; Mutford v. Walcot, 1 Ld. Raym. 574; Berry y. Rohinson, 9 Johns. 121; Van Hoesen v. Van Alstyne, 3 Wend. 75, 79. The fact that a bill has been protested does not prevent its subsequent acceptance by the drawee. StocJcwell v. Branible, 3 lud. 428. And such acceptance aftei' the time of paj-ment is bind- ing. Williams V. Winans, 2 Green, 239. A drawee who accepts after the bill has been indorsed over is liable to the indorsee. BILLS AND NOTES. 593 Bank of Louismlle v. Ellery, 34 Barb. 630; First IS atlonal Bank of Portland v. Scliuyler, 7 J. & Sp. 440; Meclumics' Bank v. Limngston, 33 Barb. 458. A transfer, as well as an acceptance of a bill of exchange, supposes the existence of the bill transferred or accepted ; but a blank indorsement will operate as a transfer of a bill not yet drawn ; and it is no objection to the validity of a bill that the acceptance was written before the bill was tilled up. Mitchell v. Culver^ 7 Cow. 336 ; and Mechanics' Bank v. Schuyler^ in note; Schidtz V. Astley, 2 Bing. N. C. 544 ; Bussel v. Langstaffe, Dougl. 514. The legal presumption is, that a bill or note was indorsed at the time it was made, or before it became due, unless there are circumstances to show to the contrary. James v. Chalmers, 6 N. Y. (2 Seld.) 209; Pinkerton v. Bailey, 8 Wend. 600. The law of the place where an indorsement is made is the law which controls the rights and regulates the duties of the parties to the bill or note. Ay mar v. Sheldon, 12 id. 439 ; Everett v. Vendryes, 19 N. Y. (5 Smith) 436. When a bill or note is payable to bearer, or to a certain person or bearer, no indorsement is necessary for the purpose of transferring the title to the instrument. But where it is payable to order, or to a cer- tain person or order, a written indorsement is necessary, in order to render the bill or note available as a negotiable security in the hands of the indorsee. It has been seen that such a bill or note may be assigned with- out a written indorsement, but the title is that of an assignee, and not that of an indorsee. Ante. Indorsements are usually made in something like the following forms : 1. Indorsement by draioer or payee in hlank, "James Atkins." 2. Like, hy a partner, "Atkins & Co.," or, '^For self and Thompson, James Atkins." 3. Like, hy an agent, "Per pro- cuiation, James Atkins, John Adams ; " or, "As agent for James Atkins, John Adams." 4. Qualified^ indorsement, to avoid per- sonal liahility, "James Atkins, sans recourse;" or, "James Atkins, with intent onl}^ to transfer my interest, and not to be subject to any liability in case of non-acceptance or non-pay- ment." Post. 5. Indorsement in full or special, "Pay John Holloway, or order, James Atkins." 6. Restrictive indorsement in favor of indorser, "Pa}" John Holloway, for my use, James Atkins;" or, "Pay John Hollowa}", for my account, James .Atkins." 7. Restrictive indorsement in favor of indorsee or a Vol. L — 75 594 BILLS AND NOTES. 'particular person only, "Pay G. S. only, James Atkins ; " o\\ ''The within must be credited to A B, James xltkins." An indorsement of a note without recourse passes it witli all its negotiable qualities. Epler v. Funic. 8 Penn. St. 468 ; Bicf V. Stearns, 3 Mass. 225. The indorsement of a bill or note in blank or in full, without restriction or qualification, passes the interest and property therein to the indorsee. And ever}^ such indorsement is an undertaking or agreement that the bill or note shall be duly honored, and that, if it is not, and the indorser has due notice of the dishonor, he will pay the amount to the indorsee. And a right of recovery accrues against the indorser, as soon as the bill or note becomes due, on compliance with the conditions precedent to his liability, namely, making due presentment for payment, and giving to the indorser due notice of non-payment ; or, in the case of a foreign bill, having it duly protested, and notice thereof given to the antecedent parties. Rouquette v. Oi)ermann, L. R., 10 Q. B. 525. It is not necessar}^ that any particular phraseology should be employed in making an indorsement, which, in that respect, is similar to the rule in rela- tion to the words used in the body of the instrument. Ante, 538. An indorsement which is made by merely writing the indorsers name on the back of the bill or note is the most concise contract that can possibly be drawn. The word" indorsement " imports a writing upon the back of the instrument. But the law does not regard the mere etymological signification of the word, wlien the object and intention of the parties is evident. And, conse- quently, an indorsement is valid although written across tlie face of the bill or note, instead of being written on the back of it. Yarhorough v. Bank of England, 16 East, 6 ; Herring v. ^Vooil- liull, 29 111. 92. And the indorsement is equally valid if ^vl•itt^'^ upon a separate piece of paper, which is attached to the iiistrii- ment. This piece of j)aper is called an allonge, and is consid- ered to be a part of the instrument to which it is attached. French v. Tamer, 15 Ind. 59 ; Orosley v. Roub, 16 Wis. 616. When an indorser simplj^ writes his name on the back of a negotiable bill or note, it is called an indorsement in blank, or a blank indorsement. When the indorsement mentions the name of the person in whose favor it is made, it is called an indorse ment in full, or a full indorsement. Each of these modes of indorsement has its advantages, and the indorser will follow that mode which is most likely to subserve the purposes for which BILLS AND NOTES. 5^5 the indorsement is made. After an indorsement in fuii, no one but the indorsee or person to whom it is ordered to be paid can demand its payment ; and moreover, he himself cannot transfer the bill or note as negotiable paper in any other manner than by adding his own indorsement in writing. Burdick v. Oreen, 15 Joiins. 247. Tliis mode of indorsement is frequently adopted among business men, to insure safety" in the transmission of n<^- gotiable paper. Thus, where a bill is drawn in Buffalo on a person who resides in New York, and it is necessarj" for the payee to send the bill to New York by mail for collection, he can do so without incurring any danger from its being lost or stolen on the way, by indorsing it specially to the order of liis correspondent in the city where it is payable. On the other hand, where the payee of a bill of exchange, or '»f a negotiable promissory note, indorses it in blank, the. instru- ment is transferable by a mere delivery, for there is no difference between a note indorsed in blank and one payable to bearer. Where a bill or note is indorsed in blank, and it is lost or stolen during the course of its transmission from one place to another, and it is afterward transferred by the thief to a bona fide holder for value, he will hold it in preference to the owner who trans- mitted it. Peacock v. Rhodes^ Doug. 633 ; and see Miller v. Race, 1 Burr. 452 ; 1 Smith's Lead. Cases, S0S-82G, 7th Am. ed. iy v. Sisson, 2 Wend. 550 ; Ramuz v. Crowe, 1 Exch. 167, 174, note. If the indorser sustains any injury in consequence of the holder's neglect in this respect, it will be a good defense to an action on the instrument. lb. If the note is not lost, though it is supposed to be at the time of making the demand, it will be sufficient to produce it at the trial. lb. If the holder of a bill or note would charge the drawer or indorser thereof, he must present the instrument and demand payment on the very day on which it is legally payable. Where a note is payable on demand, or it specifies no time of payment, it is deemed to be due immediately, and the statute of limita- tions begins to run against it from the da^ of its date. Wenman 640 BILLS AND NOTES. V. MoTiaioli Ins. Co.^ 13 Wend. 267; Cornell v. Moulton^ 3 Denio, 12 ; Norton v. Ellam, 2 Mees. & Wels. 461 ; Thompson v. Ketcham^ 8 Johns. 190 ; Herrlck v. Bennett.^ id. 374. Where a note is payable on demand, a demand must be made within a reasonable time in order to charge the indorser. Sice v. Can- ningham, 1 Cow. 397 ; Furinan v. Haskin, 2 Gaines, 369 ; San- ford V. MicMes, 4 Johns. 224. Bat where a note is payable on demand, with interest^ it is a continuing security, from which none of the parties are discharged until it is dishonored by an actual presentment and a refusal to pay. Comstock, J., in Mer- rltt V. Todd, 23 N. Y. (9 Smith) 28, 34 ; Wethey v. Andrews, 3 Hill, 582 ; Weeks v. Pryor, 27 Barb. 79. Where the parties to a note have their places of business in the same street of the same city, a note payable on demand with interest, which is transferred nearly three months after date, is subject, in the hands of the transferee, to any defense which existed in behalf of the makers against the payee before the transfer. Herrick v. WooUerton, 41 N. Y. (2 Hand) 581 ; 1 Am. Rep. 161. A prom- issory note, payable on demand, whether with or without inter- est, is barred by the statute of limitations, if not brought within six years after its date. Wheeler v. Warner, 47 N. Y. (2 Sick.) 519 ; 7 Am. Rep. 478. Before a holder of a bill or note can safely make a demand of payment, it is important to know when that demand is to be made, and for that purpose he must ascertain on what day the law determines or declares the instrument to be due and payable. When checks, bills or drafts are payable on demand, they are payable immediately, and without any demani before suit brought. lb. ; Haxtun v. Bishop, 3 Wend. 13, 23, note. It is a general rule that notes which are not negotiable are not entitled to days of grace. Notes not negotiable are such as are not drawn in negotiable terms ; such as are payable in chattels ; and such as are not recognized as negotiable either by statute or by custom. Where a bill or note is drawn payable at a specified time, as on a certain future day, or a given number of days after date, after sight, after demand, or on any other particular day, men- tioned in such bill or note, it is not payable at the time the words naturally import, but the acceptor or the maker has until the third day after, and exclusive of the day expressed, in which to make payments ; and he has tJie whole of this third day in which to pay, and no action can legally be biought against him until BILLS AND NOTES. 641 the next day. The maker of a promissory note has the whole of the last day of grace in which to pay it; and, if it is payable at a bank, no action can legally be commenced on it against the maker on the last day of grace, even though it is commenced after the banking hours of the bank at which it is payable. Smith V. Aylesworth, 40 Barb. 104 ; Oshorn v. Moncure, 3 Wend. 170 ; Oothout v. Ballard, 41 Barb. 33. Thus, where a bill or note is made payable on the first day of any particular month, it will not be due until the fourth day of that month ; and an action cannot properly be brought upon it until the fifth. Cornell v. Moulton, 3 Denio, 12 ; McGraw v. WalTcer, 2 Hilt. 404. "All bills of exchange or drafts, drawn payable at sight, at any place within this State, shall be deemed due and payable on presentation, without any days of grace being allowed thereon." Laws 1857, ch. 416, § 1. "All checks, bills of exchange or drafts, appearing upon their face to have been drawn upon any bank, or upon any banking association, or individual banker, carr3dng on banking business under the act to authorize the business of banking, which are on their face payable on any specified day, or in any number of days after the date or sight thereof, shall be deemed due and payable on the day mentioned for the payment of the same, without any days of grace being allowed, and it shall not be necessary to protest the same for non-acceptance." lb., § 2. This act only abolishes grace upon bills which are '' 07i their face payable on a specified day, or in any number of days or sight thereof after the date. It does not include bills payable upon their face in months or years. Commercial Barik of KeiitucJcy V. Varnum, 49 N. Y. (4 Sick.) 269. A draft for money payable at a day which is subsequent to its date is a bill of exchange, and entitled to days of grace. Boioen v. Newell, 8 N. Y. (4 Seld.) 190. A bill of exchange, drawn payable at sight, is due and payable on presentment to the drawee, in the absence of evidence of a local custom to change the rule. Nash v. Mar- tin, 1 E. D. Smith, 505 ; 9 N. Y. Leg. Obs. 358. ARTICLE XIV. PAYMENT; BY WHOM. Section 1. In general. The makers of a promissory note and the acceptors of a bill of exchange or draft are the persons pri- marily liable to pay it at its maturity ; and payment thereof by YoL. L — 81 642 BILLS AND NOTES. such makers or acceptors discharges them and the indorsers, and cancels the instrument. Suydain v Westfall, 2 Denio, 205. The payment of a bill or note by an indorser is a satisfaction , f "t only in respect to subsequent indorsers ; for a bill is not dis- charged and finally extinguished until paid by or on behalf of the acceptor ; nor a note until paid by or on behalf of the maker. And, therefore, when an indorser takes up a dishonored n( te or bill, he is at liberty to put it again into circulation; whereas a payment by the maker of a note or the acceptor of a bill dis- charges it BO that it is no longer negotiable. Havens v. Hunt- ington^ 1 Cow. 387. Payment ought to be made to the holder or real owner of the bill or note, or to some person authorized by him to receive it, and to one who has the title and possession of it. Canal Bank v. Bank of Albany, 1 Hill, 287; Morgan v. Bank of State of New York, 11 N. Y. (1 Kern.) 404; Dams v. Miller, 14 Gratt. 1; Fatenc v. Bennett, 11 East, 40. When a bill or note is payable to bearer, or if payable to order and in- dorsed in blank, so that the title passes by the mere act of deliv- ery, possession alone is presumptive evidence of title and a sufficient authority to demand and receive payment. James v. Chalmers, 5 Sandf. 52; S. C, 6 N. Y. (2 Seld.) 209; Seeley v. Engell, 17 Barb. 530. And whenever the person presenting a bill or note has a right to demand its payment, the maker or acceptor is clearly authorized to pay it to such person. There are cases in which payment may properly be made to the holder of a bill or note, even when it was obtained fraudu- lently or feloniously from the true owner. And the maker or acceptor will be protected in paying a note or bill to the party who presents it, if he holds it under such circumstances as will give him a right of action thereon as a purchaser in good faith and for value. Stalker v. McDonald, 6 Hill, 93. Before paying a bill or note the maker or acceptor ought to take care and ascertain that the indorsements are genuine, and that they are sufficient to transfer the title to the person who demands payment. If the indorsements on the note or bill are in blank, it is only necessary to know that the payee's indorse- ment is genuine; but if there are several successive special in- dorsements, the party paying ought to be certain that all of these indorsements are genuine, since the holder cannot acquire any title through a forged indorsement. Graves v. American Ex- change Bank, 17 N. Y. (3 Smith) 205; Canal Bank v. Bank of Albany, 1 Hill, 287. Thus, where the payee of a note, drawn BILLS AND NOTES. 643 payable to him or order, indorses it specially payacle to A, or order, who then indorses it specially payable to B, or order, in such a case the title to the note is in B, and no other person has a legal right to demand payment of it, except as his agent. Bur- dick V. Green, 15 Johns. 247; Strong v. Stevens, 4 Duer, 668. But where the payee indorses the instrument in blank, the rule is otherwise, even though there are subsequent special indorse- ments on the note, because the holder is entitled to deduce his title through the first indorser, and therefore the maker is pro- tected in paying the money to the party who has it in possession, in the same manner as though the note had originally been made payable to the bearer. Watervliet Bamlc v. White, 1 Denio, 608. The drawee of a bill of exchange is bound to know the hand- writing of his correspondent, the drawer, and if he accepts or pays a bill in the hands of a bona fide holder for value, he is con- cluded by the act, although the bill turns out to be a forgery. If he has accepted, he must pay; and if he has paid, he cannot lecover the money back. Goddard v. Merchants' BanTc, 4 Comst. 147; S. C, 2 Sandf. 247; Graves v. American Exchange Banlc, 17 N. Y. (3 Smith) 205. So, if a bank pays a forged check, or a rheck which has a genuine signature but which has been fraud- ulently altered to a larger sum, it cannot charge the drawer with the sum so paid without authority. Weisser v. Denison, 10 N. Y. (6 Seld.) 68; Morgan v. Bank of the State of Neio York, 1 Kern. 404; Hall v. Fuller, 5 Barn. & Cress. 750. If a bank check has not been cashed, or if a bill or draft has uot been accepted, the check ought not to be paid, nor the draft ur bill accepted, where the drawer countermands the authority and gives notice thereof to the bank, or the drawee, before pay- ment or acceptance. As we have already seen, ante, 546, bills and notes to be negoti- able must be payable in monej^, and therefore nothing but a money ayment will be a legal tender in discharge of the debt. If, how- t-ver, a party chooses to receive payment in any other article he may do so. And where the note is paj^able in goods, as in the case of a chattel note, then the payment may be made according to the terms of the note. See " Chattel Note." ti44 BILLS xlND NOTES. ARTICLE XV. PROCEEDINGS OX XOif-PAYMEJSTT. NOTICE. Section 1. In geueraL The holder of a bill or note .s bound to present it for payment, and to give the drawer and indorsers due notice of the dishonor if it is not duly paid ; and an omis- sion, neglect, or refusal to do so is a discharge of the drawer and indorsers. The law does not require that the notice shall be given in any particular form or set of words; it will be sufficient if the lan- guage employed is such as in express terms or by necessary implication to convey notice to the drawers and indorsers of the identity of the bill or note, and that payment of it on due pre- sentment has been neglected or refused by the maker or acceptor. Hodges yf. Shuler, 24 Barb. 68; S. C, 22 N. Y. (8 Smithj 114; Cook V. Litchjield^ 9 id. (5 Seld.) 279 ; Cayuga County Bank v. Wai'den, 1 Comst. 413 ; Cook v. Litchjield, 2 Bosw. 137 : Dai^en- 'port V. Gilbert^ 4 id. 532 ; S. C., again, 6 id. 179. The notice will be valid whether verbal or in writing, although a written notice will almost invariably be preferred. Butt v. Hoge. 2 Hilt. 81 ; Woodin V. Foster^ 16 Barb. 146; Ouyler v. Stevens, 4 Wend. 566. The bill or note dishonored ought to be so described in the notice that the drawer or indorsers may know what instrument is in- tended; and if-the notice correctly gives the date, time of pay- ment, amount, names of maker, and of the payees, and of the indorsement, of a promissory note, this will be sufficient although it does not state the number of the note, and although it appears that there were three or four other notes precisely like it out- standing at the time of giving the notice, and although, also, the number was the only means of precisely identifying the note. Hodges v. Shuler, 24 Barb. 68; S. C, 22 N. Y. (8 SmitlO 114. If the notice gives the names of the makers and indorsers of a prom- issory note, with the amount thereof, this is a sufficient descrip- tion in the absence of evidence showing that there were other notes to which the notice would apply. Youngs v. Lee, 18 Barb. 187; S. C, 12 N. Y. (2 Kern.) 551. A statement in such notice that the note had been protested for non-payment is a sufficient notice of a presentment and demand of payment at the time and place of payment. lb. But if the notice of non-pa}'- ment does not state the name of the maker of the promissory note dishonored, it will not be sufficient to charge the indorser. BILLS AND XOTES. 645 Home Insurance Company v. Green, 19 X. Y. (5 Smiths 518. If the notice possesses the usual legal requisites, but it misdescribes the bill or note to which it refers, it is to be determined as a matter of fact, upon the circumstances of the case, whether the indorser or drawer could be misled by such misdescription, McKnigld v. Lewis, 5 Barb. 681. And if there is a misdescription in some of the particulars, it may be shown that there was at the time of giving the notice no other note in existence to which the description could apply. Cayuga County Bank v. Warden, 1 Comst. 413; S. C, again, 6 N. Y. (2 Seld.) 19. And when the notice, in connection with such evidence, identifies the note with reasonable certainty, it will be sufiicient to charge the indorsers. lb. It is not necessary that the notice should state who is the owner of the bill or note, or at whose request it is given. The indorser is bound to pay the true owner or holder, and ^lie can ascertain that fact at the time of paying it. The statute of 1857, which is quoted, ante, 629, allows notice of non-acceptance or non-payment to be served on the drawer or indorser of negotiable paper whenever his residence or place of business, as ascertained on inquiry or when designated on the paper, is in the city or town where the note, draft or check is presented for acceptance or payment, by depositing them in the post-office addressed to him there, with postage prepaid. This statute of 1857, relative to the protest of notes, only alters the law as to the service of notices of protest, when the indorser resides or has a place of business in a city or town, or when he is reported to reside or have a place of business therein, on dili- gent inquiry. In such cases, the notice may be by notice in the post-ofiice. Randall v. Smith, 34 Barb. 452. But where there is no evidence of any diligence to find the residence of the in- dorser, or even of any inquiries upon the subject, this statute does not apply. lb. And where a note was dated in New York, and the plaintiff's were informed that the indorser resided on Long Island, it was held that this was sufficient to put them upon inquiry sufficient to satisfy them that he did not reside in New York. lb. Before the enactment of the law of 1857, the settled rule was, that when the indorser resided in the same place where the pre- sentment or demand was to be made, the notice to the indorser must be served on him personally, or by leaving it at his resi- dence or place of business. Eddy v. Jump, 6 Duer, 492. The 646 BILLS AND NOTES. only exception to tliat rule is, that when the indorser lived, in the same city or town in which the demand was to be made, but at some remote point from the place of presentment, between which there was a communication hy mail, the notice might have been served by mailing it to him, directed to him at a post-office where lie usually received his letters or papers. lb Where the servit^e of the notice is made by mail, the holder ought to be careful that his letter containing it is properly directed, for if any delay occurs through his neglect or want of care in this respect, it will discharge the party entitled to notice. The law does not require that notice shall be brought home to the indorser, nor that it shall be directed to his place of residence. It is sufficient if the holder of a bill or note make diligent inquiry for the drawer or indorser, and then acts upon the best informa tion which he is able to obtain. Lihlyy v. Adams, 32 Barb. 542 ; Beale v. Parish, 24 id. 243 ; S. C, 6 E. P. Smith, 408 ; Meclian- ics^ Banking Association v. Place, 4 Duer, 212. In relation to the time when the notice must be served, the rule is, that the party who is sought to be charged upon the bill or note is entitled to prompt notice of its dishonor by the maker or acceptor. When the parties live in the same town, it is said that notice must be given in time to be received in the course of the next day after the dishonor of the bill or note, or after the party giving the notice had himself received notice of dishonor. There must be due diligence, not that a party is bound to neglect all other business, and, the moment he receives notice, send a notice to those whom he intends to charge. He has a whole day, and so much more as will enable him, by the use of diligence, to communicate the notice to the party sought to be charged. A day is not in all cases the limit. If there are many indorsers, and the notice in fact travels through them all, if there has been no want of diligence between any two of them, whatever time may have been occupied, the notice will be good. The rule is not that each indorser has a day; but the rule is, that due dili- gence shall be ohserved, in the actual state of circumstances under which the notice is given. Rowe v. Tipper, 13 0. B. 249; 256; Banlc of Utica v. Smith, 18 Johns. 231 ; Howard v. Ives, 1 Hill, 263 ; Mead v. Engs, 5 Cow. 303 ; Bank of United States v Davis, 2 Hill, 451. There must be a proper demand of payment and refusal thereof, before notice of dishonor can legally be given, and a noticb before that time is a nullity. Jackson v. Richards, 2 Caines, BILLS AND NOTES. 647 343 ; Oriffm v. Goff, 12 Johns. 423. After a bill lias in fact been dishonored, a notice of dishonor given by a party to tlie bill, in terms nnequivocally asserting tlie dishonor, is valid, although the party giving the notice had no certain knowledge of the fact of the dishonor. Jennings v. Roberts^ 4 Ell. & Bla. 615. Where a bill of exchange has been presented and dishonored, the holder may either resort to his immediate indorser, giving him dne notice of dishonor, or he may resort to an}' or all of the other indorsers or prior parties intermediate between him and the acceptors, whose names appear upon the bill, giving lo each of these parties respectively, notice of dishonor in the same man- ner as if each were the sole indorser ; subject, however, to this qualification, that the holder may avail himself of any notice which has been given in due time by any previous indorser, who, at the time of giving such notice, was under liabilitj^ to the liolder. Lysaght v. Bryant^ 9 C. B. 46 ; Harrison v. Ruscoe^ 15 Mees. & Wels. 231 ; Cliapman v. Keane, 3 Ad. & El. 193 ; Mead v. Engs, 5 Cow. 303 ; Stafford v. Yates, 18 Johns. 327. But although notice of non-payment, when given by the holder of a note to an indorser, will inure to the benefit of other par- ties to the paper, and though an inability to learn the proper place for giving such notice will excuse the holder from giving such notice, yet such excuse will not be available to another indorser who possesses the necessary information. Beale v. ParrisTi, 20 N. Y. (6 Smith) 407. But such ignorance excuses the giving the notice so long only as the cause continues, and whenever the party has the proper information for correctly serv- ing the notice, a duty arises which requires a proper service, and if it is omitted, the holder will be held responsible in the same manner as though negligent in the first instance. lb. Where a bill or note is indorsed by several indorsers, each of them is liable thereon in the order in which his name stands on the instrument, and any one of the latter indorsers may take up the note at maturity and maintain an action against any one of those who indorsed before he did. Bradford v. Corey, 5 Barb. 461 ; Leonard v. BarJcer, 5 Denio, 220 ; Corey v. WJiite, 3 Barb. 12; Barker v. Cassidy, 16 id. 177; Hays v. Phelps, 1 Sandf. 64. But a subsequent indorser cannot maintain a joint action against prior indorsers who indorsed severally, if the action is brought against them for the recovery of money paid for them by the plaintiff. Barker v. Cassidy, 16 Barb. 177. Nor can the payee and first indorser of a note recover against a second. 648 BILLS AND NOTES. or subsequent indorser thereof, either in an action upon the note itself, or upon allegation and proof of a verbal agreement which was to render such second or subsequent indorser liable to the first indorser. Hauck v. Hund, 1 Bosw. 431 ; Bradford v. Mar- tin, 3 Sandf. 647 ; Lester v. Paine, 39 Barb. 616. And it has been held that it will not make any difference as to the rule, even where the second indorser puts his name on the note before the first indorser did. lb. But see the cases cited, ante, 601. The holder of a bill or note ought to give notice of its dishonor to all the parties to whom he intends to look for payment ; but it will be sufiicient if he gives due notice to his immediate indor- ser for the purpose of charging him ; and it is the business of each indorser to see that his immediate indorser is properly notified. Morgan v. Woodsworth, 3 Johns. Gas. 89 ; Bank of Utlca V. Smith, 18 Johns. 230 ; Bank of V. S. v. Dams, 2 Hill, 451. If the holder is not satisfied with the responsibility of his immediate indorser, his proper course is to give notice to all the parties to whom he intends to look for indemnity on the instru- ment. If a note is indorsed by a firm, notice to one partner is notice to all of them. Willis v. Green, 5 Hill, 232 ; Bank of Chenango v. Root^ 4 Cow. 126. BILLS OF PEACE. H49 CHAPTER XXV. BILLS OF PEACE. TITLE I. NATUEE OF THE KEMEDY BY, AND IN WHAT CASES ALLOWED. ARTICLE I. WHEJSr THE REilEDY WILL LIE. Section 1. Nature of the remedy. A bill of peace, technically so called, is an equitable remedy which sometimes bears a close resemblance to a bill in equity quia timet. Tiie latter is, how- ever, distinguishable from the former in various respects, as will hereafter be seen, and is usually applied to prevent wrongs or anticipated mischiefs before the actual commencement of a suit : whereas, a bill of peace is usually brought after the right of the complainant has been established at law. It is founded upon the equity, that if the right be established at law, it is entitled to adequate protection. Bond v. Little., 10 Ga. 395 ; Bedinan v. Chiles, 37 B. Monr. (Ky.) 426 ; Ounn v. Harrison, 7 Ala. 585. The ends sought to be attained by the remedy are, to procure repose from perpetual litigation, and to prevent a multiplicity of suits ; and the bill may be hied for securing an established legal title against the vexatious recurrence of litigation, whether by a numerous class insisting on the same right, or by an indi- vidual reiterating an unsuccessful claim. See Adams' Eq. 199 ; Eldridge v. Hill, 2 Johns. Ch. 281 ; Sheffield Water Works v. Yeomans, L. R., 2 Ch. App. 8 ; Phillips v. Hudson, id. 242. § 2. To quiet claims established at law. A very important class of cases to which bills of peace are applicable is, where the plaintiff has, after repeated trials, satisfactorily established his right at law, but is still in danger of being subjected to further litigation and having his right obstructed. Upon filing a bill of peace, under such circumstances, a court of equity will grant a perpetual injunction to quiet the possession of the plaintiff, and to suppress all future litigatiou of his right. Trustees of Hunt V^OL. I. — 82 650 BILLS OF PEACE. ington v. Nicoll, 3 Johns. 566, 589. Thus, where the title to land had been several times tried in an ejectment suit, and a verdict each time given in favor of the plaintiff, a perpetual in- 1 unction was decreed upon the ground that it was the only ade- quate means of suppressing oppressive litigation and irreparable mischief. Earl of Batli v. SJierwin, Prec. Ch. 261 ; S. C, 10 Mod. 1 ; 1 Bro. P. C. 266 ; Leigliton v. LeigUon, 1 P. Wms. 671. There is no positive rule as to the number of verdicts which must precede the bill of peace. If the right of the plaintiff is satisfactorily established, it is held to be immaterial whether the number of trials which have taken place are two only, or more. Trustees of Huntington v. JSficoll, 3 Johns. 6Q&, 589 ; Marsh v. Beed, 10 Ohio, 347 ; see Craft v. LatJirop, 2 Wall. Jr. 103. But the institution of repeated suits, if the same are abandoned before trial, can furnish no foundation for the maintenance of a bill of peace to restrain vexatious litigation. Patterson v. McCamanU 28 Mo. 210 ; see Marmaduke v. Hannibal, etc.. R. R. Co., 30 id. 545 ; Knoioles v. Inches, 12 Cal. 212 ; Alexander v. Pendleton, 8 Cranch, 462. In Pennsylvania, and perhaps in some of the other States, two verdicts in ejectment, for either party, are, by a statutory pro- vision, made an absolute bar to any future suit. But a provis- ion of this kind does not interfere with the right of a court of the United States to entertain a bill of peace as to ejectment in its own jurisdiction. Craft v. Lathro]), 2 Wall. Jr. 103. § 3. To establish rights of all parties. Another class of cases in which a bill of peace is the proper remedial process is, where one general legal right is claimed against several distinct per- sons. And the remedy is applicable where one person claims or defends a right against many, or where many claim or defend a right against one. Sheffield Water Works v. Yeomans, L. R., "^ Ch. App. 8 ; Alexander v. Pendleton, 8 Cranch, 462, 468 ; El- d/ridge v. Hill, 2 Johns. Ch. 281. Courts of equity, upon the sole ground of preventing multiplicity of suits, in such cases, will try a title or have it tried upon proper issues, because there is a number of persons interested in it, and a great many actions at law would be necessary to conclude the title. lb. ; Patterson V. McCamant, 28 Mo. 210. Suits concerning fisheries, parochial tithes, etc., are of this kind and fall within this class. See Ten- liam V. Herbert, 2 Atk. 483 ; Diike of Norfolk v. Meyers, 4 Mad. 50, 117; Phillips v. Hudson. L. R., 2 Ch. App. 242. Thus where one has possession, and claims a right of iishory for some BILLS OF PEACE. 651 distance along the course of a river, and tlie riparian proprietors set up several adverse rights, the former is entitled to a bill of peace against all of them for the purpose of establishing his right, and quieting his possession. Mayor of York v. Fllklngton, 1 Atk. 282. So, a bill of peace will lie to establish a right of common of the freehold tenants of a manor. Cowper v. ClarTc, 3 P. Wms. 157; or to settle the amount of a general fine to be paid by all the copy-hold tenants of a manor. lb ; Powell v. Fowls, 1 Younge & Jerv. 159 ; or to establish a duty, claimed by a municipal corporation against many persons, even where there is no privity between them. Tenliam v. Herbert, 2 Atk. 483. See Morgan v. Morgan^ 3 Stew. (Ala.) 383. It has like- wise been held, that a ferryman, having an exclusive right of ferriage, may maintain a bill of peace against those infringing his privilege. McRoherts v. WasJiburn, 10 Minn. 23 ; Letton v. Goodden, L. R., 2 Eq. 123. § 4. In other analogous cases. The two classes of cases above mentioned are the only ones in which bills of peace, technically such, will lie ; that is, where the complainant has satisfactorily established his right at law ; or where, from the number of the parties to the controversy, an issue under the direction of the court is indispensable, to embrace them all and save a multi- plicity of suits. Eldridge v. Hill, 2 Johns. Ch. 281 ; Lopeer County V. Hart^ Harring. Ch. (Del ) 157. There are, however, many cases analogous to these, in which courts of equity have interfered to quiet the enjoyment of a right, or to establish it by a decree, on a principle similar to that which governs bills of peace. See Kennedy v. Kennedy, 43Penn. St. 413, 417; Bean v Coleman, 44 IS". H. 539. Such, for example, are cases of confu- sion of boundaries ; see Kender v. Jones, 17 Yes. 110 ; and under the prayer for general relief in a bill of peace, a court of equity may require a disputed boundar}- to be surveyed and marked in a permanent manner. Primm v. Pahoteau, 5Q Mo. 407. So, in cases of mines and collieries, a court of equity will entertain bills in the nature of bills of peace, where there is danger that the mine may be ruined in the meantime before the right can be established ; and upon such a bill the court will grant an adequate remedy by quieting the party in the enjoy meat of his right, by restoring things to their old condition, anc by establishing the right by a decree. See 2 Story's Eq. Juris.. § 860 ; Alexander v. Pendleton, 8 Cranch, 462,468. Bills ei\]oin- ing the defendant from repeated acts of trespass, closely resemble 652 BILLS OF PEACE. bills of peace. Livingston v . Livingston, 6 Jolins. Cli. 497 Such, for instance, are bills to restrain interference with or obstruction of a water-course. Lyon v. McLauglilin, 32 Yt. 428 ; Corning v. Troy Iron Factory /d^^aih. 311; S.C. affirmed, 40 N. Y. (1 Hand) 191 ; Or ill v. City of Borne, 47 How. (N. Y.) 398 ; Scheetzs* Appeal, 35 Penn. St. 88 ; Sheldon v. RockioeU, 9 Wis. 166. Other cases will be noticed in treating of Bills Quia Timet ^ Cloud on Title, etc. ARTICLE II. WHEN" THE REMEDY WILL NOT LIE. Section 1. To establish private right against the rights of the public. A bill of peace will not lie to establisli a party in the enjoyment of a right claimed in contradiction to a public right; as where he claims an exclusive right to a highway, or to a com- mon navigable river. For, it is said, if a bill of peace could be sustained in such a case, the injunction would be against all the people of the State or country. See Adams' Eq. 200 ; Dilly v Doig, 2 Ves. Jr. 486. But the true principle is stated to be, that courts of equity will not, in such cases, upon principles of jDublic policy, intercept the assertion of public rights. 2 Story's Eq-. Juris., § 858. § 2. No privity among parties. To entitle a party to maintain a bill of peace, it is essentia] that there be a right claimed affect- ing many persons. There must be a single claim of right in all arising out of some privity or relationship with the plaintiff. Thus the remedy will lie against the lord by one copy-holder, on behalf of himself and the other copy-holders, being numerous, to have their rights of common ascertained ; but one copy-holder, not suing on behalf of all, cannot maintain the bill. Pliillips /. Hudson, L. R., 2 Ch. App. 243 ; see Coioper v. Clerk, 3 P. Wms. 157 ; Weller v. Smeaton, 1 Bro. Ch. 572; Alexander v. Pendle- ton, 8 Cranch, 462,468. ISTor will it lie where the rights and the responsibilities of the defendants neither arise from, nor depend upon, nor are in any way connected with each other. Randolph v. Kinney, 3 Rand. (Ya.) 394 ; but see Mayor of York v. Pil- liington, 1 Atk. 284 ; Tenham v. Herbert, 2 id. 483. In short, when one party only claims, and another denies a right, the court will not entertain the bill. Weller v. Smeaton^ 1 Bro. Ch- 572. BILLS OF PEACE. 653 § 3. No legal or equitable title in party. Those only who have a clear, legal, and equitable title to land, connected with posses- sion, have a right to claim the interference of a court of equity, to give them peace or dissipate a cloud on the title. Orion v. Smitli, 1 8 How. 263 ; Thomas v. Wliite, 2 Ohio St. 540. So a bill in the nature of a bill of peace, and praying for a discovery against joint and several trespassers on real estate, will not lie in favor of a plaintiff out of possession, claiming title to the land. Ritchie v. Borland, 6 Cal. 33 ; See Cloud on Title. § 4. Remedy at law. It is a settled principle that a bill of peace will not lie, where the party has a plain, speedy, and adequate remedj' at law. Ritchie v. Borland, 6 Cal. 33. And it is held, that the courts of the United States will not take juris- diction of a bill of peace for an injunction to quiet the title of an estate, where the title is alreadj^ in litigation in a court of concur- rent jurisdiction. Orton v. Smith, 18 How. 263. 654 BILLS QUIA TIMET. CHAPTER XXVI. BILLS QUIA TIMET. TITLE L OF THE NATUEE OF BILLS QUIA TIMET, AND IN WHAT CASES ALLOWED. ARTICLE I. WHE]S' THE REMEDY "WILL LIE. Section 1. Definition and nature of bills quia timet. Bills in equity quia timet are so called in analogy to certain writs of the common law, six in number, called hrevia anticipantia^ writfe. of prevention. See Co. Litt. 100 a. These common-law "its are now seldom used ; but a bill in equity quia timet is a remedy in common use for the prevention of wrongs and antici- pated mischiefs. The party seeks the aid of a court of equity, because he fears [quia timet) some future probable injury to liis rights or interests, and not because an injury has already occur- red, which requires any compensation or other relief. 2 Story's Eq. Juris., § 826. And unless there is danger that the plaintiff will be subjected to loss by the neglect, inadvertence, or culpability of another, the remedy by bill qtda timet will not lie. Ran- dolpJi v. Kinney, 8 Rand. (Va.) 394 ; Green v. Hankinson^ Walker (Mich.), 487; Sanderson v. Jones, 6 Fla. 430; see Tip- ping v. Eckersley, 3 K. & J. 264. § 2. To preserve property for the party entitled thereto. Bills quia timet, in their character as a preventive remedy, are usually hied to secure the preservation of property, to its appropriate uses and ends, for the party entitled thereto ; and the jurisdiction cf a court of equity to allow the remedy may be exercised wherever there is danger of the property being converted to otlier purposes, or diminished, or lost through culpable negligence. See Gibson v. Jayne, 37 Miss. 164 ; Collins v. Barksdale, 23 Ga. 602 ; Champlainv. Champlain, 4 Edw. Ch. (N. Y.) 228 ; Pattis- son V. Gilford, L. R., 18 Eq. 259. As it regards equitable prop- erty, this jurisdiction attaches equally in cases where there is a BILLS QUIA TIMET. 655 present right of enjoyment, and in cases where the right of enjoy- ment is future or contingent. 2 Story's Eq. Juris., § 827. In order to render the remedy effectual, the court will take the fund into its own hands, or through the agency of its own officers or other- wise, secure its proper management and appropriation. Thus, it is said to be the settled principle of the court that an executor or other trustee, who mismanages or puts the assets in jeopardy by his insolvency, either existing or impending, should be pre- vented from further interfering with the estate, and that the funds should be withdrawn from his hands. Elmendorff v. Lansing, 4 Johns. Ch. 565. So, in case of collusion between the debtors of the estate and the executors or administrators, the court will order the former to pay the amounts of their debts into court. See Utterson v. Mair, 4 Bro. Ch. 277 ; Taylor v. Allen, 2 Atk. 213 ; Phipps v. Annesley, id. 58. In some of the States execu- tors are required to give bonds like administrators, for the faith- ful administration of the estates of the testators ; and where this is the case, any resort to a court of equity for the remedy uader consideration is rendered unnecessary. Thus, under the Revised Statutes of ^ew York, if the circumstances of the executor are such as not to afford adequate security for the faithful discharge of his trust, and the objection is made by a person interested in the estate, the surrogate is bound to require security from the executor. 2 R. S. 72, § 18. And see Shields v. Shields, 60 Barb. 56 : Wood V. Wood, 4 Paige's Ch. 299 ; Mandemlle v. Mandeville, 5 id. 475. § 3. Application of remedy to future interests in personalty. Where the right to the enjoyment of legal property is a present right, legal remedies will be generally found sufficient for its protection and vindication. But it is otherwise where the i-iglit of enjoyment is future or contingent. Thus, if personal property be given by will to A for life, and after his deatli to B, there is, at law, no remedy to secure the legacy to B, whether it be of specific chattels, or of a pecuniary nature. Clarli v. Clarli, 8 Paige, 152 : 2 Storj^'s Eq. Juris., § 843. In all cases of this kind, however, courts of equity will now interfere and grant relief upon a bill quia timet, where there is any reason to fear the destruction or removal of the property, or injury is apprehended to it, in the hands of the party who is entitled to the present possession. Collins v. Barlisdale, 23 Ga. 602 ; Emmons v Cairns, 2 Sandf. Ch. 369 ; Gibso?i v. Ja?/7ie, 37 Miss. 164 ; Co mnhoT^en v. Shuler, 2 Paige, 123 ; James v. Scott, 9 Ala. 579 656 BILLS QUIA TIMET. Where a binding agreement was made by an nncle, that his nephew should have his property after his death, the nephew was held entitled to relief in the life-time of the uncle, against a conveyance in fraud of the agreement. Va7i Duyne v. Vree land, 1 Beasl. (N". J.) 142. And where, under marriage articles, tlie plaintiff, in case she survived her husband, had a contingent interest in certain South Sea annuities, and a certain promissory note, which were specifically appointed for the payment of the same, to be allowed her, and the defendant had threatened to aliene the property and securities, on a bill quia timet, a decree was made, that the defendant should give security to have the same forthcoming. Flight v. Coolc, 2 Yes. Sr. 619 ; 2 Story's Eq. Juris., § 846. It is likewise held, that if children who are remaindermen under a marriage settlement are in fear that the property is being wasted and squandered, their proper remedy is by a bill quia timet. Sanderson v. Jones, 6 Fla. 430. So, where a life-interest in personal property is seized in execution as the property of the tenant for life, and sold as such, and the purchaser claims the entire interest, a court of equity will inter- pose for the protection of the rights of the remaindermen. Mc- Dougal v. Armstrong, 6 Humph. (Tenn.) 428 ; Bowling v. Bow- ling, 6 B. Monr. (Ky.) 31. And it seems that a husband who has a contingent interest in property placed in trust for the mainten- ance of his wife, on his separation from her, is entitled to equi- table aid for the protection of the fund, if there is reason to fear that it will be squandered, or diverted from the purpose for which, it was provided. Cranston v. Pluiiib, 54 Barb. 59. But equity will not grant an injunction at the suit of the wife, to prevent a husband from disposing of his jDropert}^, on the ground of apprehended desertion hj the husband, and his removal beyond the jurisdiction of the State. Anshutz v. Anshutz, 1 Green's Eq. (N. J.) 162. § 4. Protection of sureties. The remedy by a bill quia timet is also applicable in cases of sureties of debtors and others seek- ing protection. Thus, if a surety, at the time a debt is due, apprehends loss or injury from the delay of the creditor to enforce the debt against the principal debtor, he is entitled to this remedy for the purpose of compelling the debtor to dis- charge the debt or other obligation for which the surety is held. Cox v. Tyson, 1 Turn. & Russ. 395 ; Mshet v. Smith, 2 Bro. Ch. 579. And it is now considered a settled rule, that the surety may come into equitj'^, if he apprehends danger from the creditor's BILLS QUIA TIMET. 657 delay, and compel the creditor to sue tlie principal debtor, though, probably, he must ind'emnify the creditor against the consequen- ces of risk, delay and expense. Hayes v. Ward^ 4 Johns. Ch. 123, 132 ; Steplienson v. Taverners, 9 Gratt. (Va.) 398 ; King v. Baldwin, 2 Johns. Ch. 561 ; Wright v. Simpson, 6 Ves. 734. But see Rees v. Berrington, 2 Ves. Jr. 540; Neshit v. Smith, 2 Bro. Ch. 579. § 5. Miscellaneous cases. There are various other cases in which a remedy in the nature of bills quia timet is applied by a court of equity to prevent the waste or destruction of property pendente lite, or to prevent irreparable mischief. See Building Association v. Ashmead, 7 Phila. (Penn.) 272. Thus a court of equity has unquestioned jurisdiction, quia timet, of a petition to enjoin one from cutting timber, or otherwise intruding on a strip of land claimed by both parties, and seeking reparation for past intrusion and conversion of timber. Peak v. Hay den, 3 Bush (Ky.), 125. So, a bill quia timet will lie where the defendant is interfering with the complainant's tenants bv demanding rent of them, and is throwing suspicion on the complainant's title, and the latter cannot maintain an action at law because he has not been dispossessed. Polk v. Rose, 25 Md. 153. Other illustra- tions of the application of the remedy will be given in treating of Cloud on Title, Matters of Injunction, etc. In a recent case it was held, that an instrument will not be canceled on a bill quia timet, without a clear showing of the complainant's title to such relief, free from all reasonable doubt. Shotwell V. Shotwell, 24 N. J. Eq. 378. ARTICLE IL MODE OF OBTAINING RELIEF. Section 1. In general. The mode in which courts of equity afford relief upon a bill quia timet, in cases where the plaintifl' has established his title to the future enjoyment, or it is admitted, is dependent upon circumstances. Sometimes the relief is given by the appointment of a receiver to receive rents or other income, sometimes by an order to pay a pecuniary fund into court, sometimes by ordering the defendant to give security, and some- times by the mere issuing of a writ of injunction or other remedial process. See Jeremy's Eq. Juris. 248; Story's Eq. Juris., § 826. Vol. I. — 83 658 BILLS QUIA TIMET. § 2. By appoiutment of receiver. The appointment of a receiver is, in most cases, one of the objects of a bill quia timet. The appointment is made upon principles of justice for the benefit of all parties concerned, and is a matter wholly resting in the 30und discretion of the court. Veiylan^ v. Caines, 1 Johns. Ch. '57 ; SMp V. Harwood, 3 Atk. .564. The object of the appoint- iient is, to secure the property for its appropriate uses and ends, and to prevent it from being dissipated where there is danger of Its being converted to other purposes, or deteriorated, or lost. As regards an equitable property, a receiver may be appointed to secure it from danger, whether the right of enjoyment be pres- ent or future, vested or contingent. Thus, where an executor or other trustee is charged with an abuse of his trust, the court will appoint a receiver, or in case the fund be pecuniary, will direct it to be paid into court, or require security for its preser- vation and appropriation. See Utter son v. Mair, 4 Bro. Ch. 277 ; Mandeville v. Mandemlle, 8 Paige, 475 ; Hag g arty v. Pitman., 1 id. 298 ; Cliappell v. Akin, 39 Gra. 177 ; In re Johnson, L. R., 1 Ch. App. 325. In accordance with the maxim that equality is equity, the appointment of a receiver is made for the benefit and on behalf of all the parties in interest, and not for the benefit of the plain- tifi" or one defendant only. Davis v. Diike of Marlborough, 1 Swanst. 83 ; S. C, 2 id. 125. Where there are creditors, annui- tants, and others, some of whom are creditors at law, claiming under judgments, and others are creditors claiming upon equitable debts, if the property be of such a nature, that if legal, it may be taken in execution, it may, if equitable, be put into the possession of a receiver, to hold the same, and apply the profits under the direction of the court, for the benefit of all the parties, according to their respective rights and priorities. Id. 125, 135, 139, 145, 146. The same rule is applicable to cases where the property is legal, and judgment creditors have taken possession of it in any manner ; for it is competent for the court to appoint a receiver of any kind of creditors, not disturbing the just prior rights, if any, of the judgment creditors. lb.; S. C, 1 Swanst. 83; White v. BisJiop of Peterborough, 3 id. 117, 118 ; 2 Story's Eq. Juris., § 829. Hence the appointment of a receiver, in cases of this sort, is often called an equitable execution. lb. There are statutory provisions existing very generally in the United States, by means of which, aid may be had in a court of equity in favor BILLS QUIA TIMET. 659 of a judgment creditor, and sometimes even before judgment, to secure or apply assets which cannot be reacted by ordinary legal process. See Hastings v. Palmer, Clarke's Ch. (N. Y.) 52 ; Hadden v. Spader, 20 Johns. 554. This remedy is known as a creditor's bill, and the jurisdiction of a court of equity to grant the relief afforded thereby would seem to exist independ- ent of statutes. See Barry v. Abbott, 100 Mass. 396 ; Pendleton V. Perkins, 49 Mo. 565 ; Cohen v. Myers, 42 Ga. 46 ; Skinner v. Maxwell, 66 N. C. 45 ; Dumphy v. Kliensmitli, 11 Wall. 610. And see title Creditor's Bill. The receiver, when appointed, is virtually an officer and repre- sentative of the court, and subject to its orders.. Angel v. Smith, 9 Ves., 335; Hutchinson v. Massareene, 2 B. & B. 55 ; Skip v. Harwood, 3 Atk. 564. The appointment of a receiver of the rents and profits of real estate is generally deemed to entitle him to possession of the premises. If there are tenants in possession of the premises, they are compellable to attorn to the receiver, although not parties to the suit. See Sea Ins. Co. v. Stebbins, 8 Paige, 565 ; Bowery Savings Bank v. Richards, 3 Hun (N. Y.), 366 ; S. C, 6 N. Y. S. C. (T. & C.) 59 ; and the court thus becomes, pro hac vice, the landlord. Angle v. Smith, 9 Yes. 335 ; Sharp v. Carter, 3 P. Wms. 379 ; see Albany City Bank v. Schermer- horn, 9 Paige, 372. The possession of the receiver does not, however, afi*ect the rights of third persons when they are ulti- mately established, but he is considered as holding for the true owner; nor can he proceed in any ejectment against the tenants of any estate, without the authority of the court. Wynne v. Lord Newborough, 3 Bro. Ch. 88 ; S. C, 1 Ves. Jr. 164. And generally, he is not at liberty to bring or to defend actions, let the estate, or lay out money, without the special leave of the court. Merritt v. Lyon, 16 Wend. 405, 410 ; Matter of Bangs, 15 Barb. 264. See Armstrong y. Armstrong, L. Il.,12 Eq. 614. Before entering upon the performance of the duties of his ap- pointment, the receiver will be required to give bond with surety under the direction of the court. 2 Madd. Ch. Pr. 240. He is bound to act in good faith and with a proper degree of diligence ; and if property is lost through his fault or neglect, he may be held liable for it. See Knight v. Plymouth, 3 Atk. 480 ; Wren v. Kirton, 11 Yes. Jr. 377 ; Aurentz v. Porter, 56 Penn. St. 115. In addition to the cases mentioned generally, in which a receiver will be appointed under a bill quia timet, may be added those cases where an estate is held by a party, under a title ob- 660 BILLS QUIA TIMET. tained by fraud, actual or constructive. E/>LQuenin v. Baseley, 13 Ves. 105. So, where there are several incumbrances on an estate, and the first incumbrancer is not in possession, and does not desire it, or if he has been paid ofi", or refuses to receive what is due him, a receiver may be appointed upon the applica- tion of a subsequent incumbrancer. Codrington v. ParTcer^ 16 Yes. 469 ; Norway v. Rowe, 19 id. 153 ; and see Quarrell v. Beckford, 13 id. 377 ; Sollory v. Leaver, L. R., 9 Eq. 22. And where tenants of particular estates for life, or in tail, neglect to keep down the interest due upon incumbrances upon the estates, a receiver will be appointed by the court to receive the rents and profits, in order to keep down the interest. Bertie v. Lord AUngdon, 3 Meriv. 560, 568 ; Giffard v. Hart, 1 Sch. & Lefr. 407, note ; see PTielan v. Boylan, 25 Wis. 679. A court of equity will not interfere, upon slight grounds, with the management and administration of assets by executors and administrators. See Schlechfs Appeal, 60 Penn. St. 172 ; Hitclien V. BirTcs^ L. R., 10 Eq. 471. Where, therefore, it is sought to have a receiver appointed against an executor or administrator, it is necessary to show that there is some positive loss, or danger of loss, of the funds ; as, for instance, from the insolvency, bank- ruptcy, fraud, or negligence of the executor or administrator. In re JoTinson, L. R., 1 Ch. App. 325 ; Mandemlle v. Mandemlle, 8 Paige, 475 ; CTiappell v. AMn, 39 Ga. 177. The poverty of the party alone will not constitute a sufficient ground for the ap- pointment of a receiver. Hoioard v. Papera, 1 Mad. 142 ; White V. Bishop of Peterborough, 2 Swanst. 109 ; Wood v. Wood, 4 Paige, 299, 303. § 3. By ordering money to be paid into court. Another rem- edy which is sometimes allowed under a bill quia timet, is an order requiring the payment of money into court, and this upon the principle, that he who is entitled to the money is entitled to have it secured. The court will not apply the remedy, unless the plaintiff has an interest in the fund. See CruikshanTcs v. Rolarts, 6 Mad. 104 ; Gedge v. Trail, 1 Russ. & Mylne, 277. But there are cases in which it will be applied, without any ground being laid to show that there has been any abuse or any danger to the fund. Freeman v. Fairlie, 3 Meriv. 29 ; Roth- well V. Rothioell, 2 Sim. & Stu. 217; ClarJcsouY. Be Peyster, Hopk. Ch. (N. Y.) 274; Strange v. Harris, 3 Bro. Ch. 365. Thus, in cases of bills brought by creditors, or legatees, or dis- tributees, against executors or administrators for a settlement of BILLS QUIA TIMET. 661 the estate, if, by his answer, the executor or administrator ad- mits assets in his hands, and the court takes upon itself the settlement of the estate, it will direct the money to be paid into court. lb. ; Tare v. Harrison, 2 Cox, 377; 2 Story's Eq. Juris,, § 839 ; see Mandemlle v. Mandemlle, 8 Paige, 475. Papers and writings in the hands of executors and administrators may like- wise be directed by the court, to be deposited with a master, for the benelit of those interested, unless there are other purposes which require that they should be retained in the hands of the executors or administrators. Freeman v. Fairlie^ 3 Meriv. 29 ; GlarTi v. Clark, 8 Paige, 152. § 4. By ordering defendant to give security. This remedy, under a bill (luia timet, is applied in those cases where property is so situated that the party ultimately entitled to it apprehends fear of its loss, unless security is given for its preservation. A familiar illustration is the case of personal property given by a will to one for life, and afterward to another ; and formerly, the legatee in remainder was entitled, in all cases, to come into a court of equity, and to have a decree for security from the ten- ant for life, for the due delivery over of the legacy to the remainderman. 1 Story's Eq. Juris., § 604. But the modern prac- tice in such cases is, only to require an inventory of the articles, specifying that they belong to the first taker, for the particular period only, and afterward to the person in remainder ; and security is not required, unless there is danger that the articles may be wasted, or otherwise lost to the remainderman. Coven- Iwoen V. Shuler, 2 Paige, 122, 132 ; Henderson v. Vaulx, 10 Yerg. (Tenn.) 30 ; see Bowling v. Boioling, 6 B. Monr. (Ky.) 31 ; McDougal v. Armstrong, 6 Humph. (Tenn.) 428 ; Kinnard v. Kinnard. 5 Watts (Pa.), 109 ; Lippincott v. Warder, 14 Serg. & R. (Penn.) 118 ; S?nit7i v. Ostrand, 3 Hun (N. Y.), 450; S. C, 5 N. Y. S. C. (T. & C.) 664, 667. And see ante, 656, art. 1, § 4. § 5. By writ of injunction. Upon a proper case being made out in a bill quia timet, supported by proof, the court will enforce the performance of its decree upon the party, by the writ of injunction. But an examination of these cases will be more appropriate, in treating of matters of injunction. See VLTite, 657, art. 1, § 6. 662 BILL TO REMOVE CLOUD ON TITLE. CHAPTER XXVII. BILL TO REMOVE CLOUD ON TITLE. TITLE L NATUKE OF THE EEMEDY, AND WHEN OBTAINABLE. ARTICLE I. WHEX THE REMEDY LIES. Section 1. IVTiat coustitutes cloud on title. A cloud upon title is a title, or incumbrance, apparently valid, but in fact in- valid. Bissell V. Kellogg, 60 Barb. 617, 629. And a remedy lies for the removal of clouds upon title, because they embarrass the owner of the property clouded, and tend to impede his free sale and disposition of it. lb. And see Lyon v. Hunt, 11 Ala. 295 ; Anderson v. Hooks, 9 id. 704 ; Huntington v. Allen, 44 Miss. 654 ; Sanxay v. Hunger, 42 Ind. 44 ; Hartford v. CMpman, 21 Conn. 488. The idea of real danger is not necessarily involved in that of a cloud upon title. If the title is obscured, so as to render the right of the real owner less clear, there is a cloud. Ward V. Dewey, 16 N. Y. (2 Smith) 519, 531. Nor is it necessary to constitute a cloud, that there should be a title upon record apparently valid. It is sufficient if there be a deed, valid upon its face, accompanied with a claim of title based upon facts showing an apparent title under such circumstances as lead to the belief that the deed is likely to work mischief to the real owner of the property. Scott v. Onderdont, 14 N. Y. (4 Kern.) 9 ; Allen v. City of Buffalo, 39 N. Y. (12 Tiff.) 390 ; Fonda v. Sage, 48 N. Y. (3 Sick.) 173 ; Marsli v. City of Brooklyn, 59 N. Y. (14 Sick.) 280 ; and see Moore v. Cord, 14 Wis. 213 ; Oamble V. Loop, 14 id. 465 ; Dunklin County v. Clark, 51 Mo. 60. So, the rule is stated to be, that if a title, against which relief is prayed as a cloud, is of such a character that, if asserted by action, and put in evidence, it would drive the other party to the production of his own title in defense, it constitutes a cloud, which the latter has a right to have removed. Lick v. Ray, 43 Cal. 83. BILL TO REMOVE CLOUD ON TITLE. 663 § 2. Jurisdiction to remove, in what court. The removal of clouds upon title, and obstacles in the way of the full enjoy- ment of property, is an acknowledged head of equity jurisdic- tion. Radcliffe v. Rowley, 4 Edw. Ch. (N. Y.) 646 ; Standisft v. Doio, 21 Iowa, 363 ; Walker v. Peay, 22 Ark. 103 ; Low v. Staples, 2 Xev. 209. And the relief afforded by a court of equity seems to be on the principle of a bill quia timet, lest the deed or other instrument might be injuriously used against the party, or might throw a cloud or suspicion over his title. See Hamilton \. Cwni mings, 1 Johns. Ch. 517 ; Pettit v. Shepherd, 5 Paige, 501 ; Myers V. Hewitt, 16 Ohio, 449 ; Downing v. Wherrin, 19 N. H. 9, 91 ; Glazier v. Bailey, 47 Miss. 395. Or, the jurisdiction is exercised upon the ground that it is for the interest of both parties, that the precise state of the title to the estate be known if all are act ting hona fide ; and if not, that a merely colorable and pretend- ed claim is a fraud upon the real owner, and as such should be extinguished. 1 Story's Eq. Juris., §711, a.; and see Hodges v. Griggs, 21 Yt. 280 ; Eldridge v. Smith, 34 id. 484. So it is settled that a bill in equity may be maintained to prevent a cloud being cast upon real estate, as well as to remove a cloud already created. Pettit v. Shepherd, 5 Paige, 493 ; Mann v. City of Utica, 44 How. (X. Y.) 334 ; iT. Y. & H P. P. Co. v. Morrisania, 7 Hun (N. Y.), 652. And a party may come into equity for the cancellation of a deed, which is a cloud upon his title, though he may have a remedy at law. Hall v. Fisher, 9 Barb. 17, 24 ; Almony v. Hicks, 3 Head (Tenn.), 39. Great caution will, how- ever, be exercised by the courts to prevent abuse, and in many cases the parties must be left to their remedies at law. Glazier V. Bailey, 47 Miss. 395. § 3. IVTio may maintain the hill. A court of equity will enter- tain jurisdiction to remove cloud upon title only where the com- plainant is in possession, or from other cause, is without adequate legal remedy. Bunce v. Gallagher, 5 Blatch. (C. C.) 48 ; Sid- livaa V. Finnegan, 101 Mass. 447 ; Woods v. Monroe, 17 Mich. 238 ; Burton v. Gleason, 56 111. 25 ; Clark v. Covenant, etc., Ins. Co.. 52 Mo. 272. Persons out of possession, who cannot be com- pelled to defend their rights at law, are entitled to the equitable remedy. Barrow v. Bobbins, 22 Mo. 42 ; see 0' Brien v. Creig^ 10 Kan. 202. A mortgagee may maintain the bill. Polk v. Pey- nolds. 31 Md. 106 ; ^Wofford v. Board of Police, etc., 44 Miss. 679 ; and so may several landholders holding from a common source, on the ground of preventing a multiplicity of suits. Dart 664 BILL TO REMOVE CLOUD ON TITLE. V. Orme, 41 Ga. 376. And where the vendor in possession claims that a deed is only a mortgage, the vendee may maintain the bill. Bich V. Doane, 35 Vt. 124 ; Shays v. Norton, 48 111. 100. So, it seems that a judgment obtained after the death of the defendant is a cloud, and a bill for its removal may be maintained by the heir at law of the defendant. Blodget v. Blodget, 42 How. (N. Y.) 19 ; see Foot v. Dillaye, Q6 Barb. 521, 524. It has been held, that the grantor of land in parcels to numerous parties, with warranty, has such an interest as entitles him to avoid by suit a deed to another party which clouds his title. Ely v. Wilcox, 26 AVis. 91 ; ChamMin v. ScJilichter, 12 Minn. 276. But see Bissell V. Kellogg, 60 Barb. 617. And it seems that one whose title rests on the statute of limitations may come into equity to remove the cloud of the record title. Marston v. Uoioe, 39 Ala. 722; Ar- rington v. Liscomh, 34 Cal. 365 ; Moody v. Holcorrib, 26 Tex. 714. As may likewise a judgment creditor, in order that he may be the better enabled to enforce his judgment. See Stowell v. Haslett, 5 Lans. (N. Y.) 380. And in Texas, it is held that a suit may be brought to remove a cloud from the title to the homestead of a deceased person, by his widow and heirs, although no administration has been taken out on the estate of the deceased, and the homestead has never been set apart to them. Sossaman v. Poioell, 21 Tex. 664. § 4. In what cases maintainable. Among the cases in which bills to remove clouds upon title have been sustained are the following : Where a cloud rests upon the title of a party to real estate, by reason of an unsatislied mortgage, or a deed made without authority. Carter v. Taylor, 3 Head (Tenn.), 30 ; see Olouston V. Shearer, 99 Mass. 209 ; or where the cloud is created by a deed alleged to be forged ; the only question being whether 3uch deed was forged or not. Bunce v. Gallagher, 5 Blatch. .'C. C.) 481 ; see SiLlUvan v. Finnegan, 101 Mass. 447 ; or where :inother person has obtained a deed for a party's land, which is against conscience for him to use or enforce. Shell v. Martin, 19 Ark. 139; or where a deed has been executed though never deliv- ered. Brewton v. Smith, 28 Ga. 442 ; see Eckman v. Ecknian, 55 Penn.St. 269; Pratt v. Pond, 5 Allen (Mass.), 59; or when there has. been a sale and a deed in pursuance of a void levy, and the party claims title under them. Stout v. Gook, 37 111. 283 ; see Ander- son V. Talbot, 1 Heisk. (Tenn.) 407. So, the bill is held to lie in case of an actual or threatened sale of the land to another. Guy V. Ecrmance, 5 Cal. 73 ; Biirt v. Cassity, 12 Ala. 734 ; Thomp- BILL TO REMOVE CLOUD OX TITLE. 665 son V. Lynch^ 29 Cal. 189 ; or where a title, otherwise clear, is clouded by a claim which cannot be enforced either at law or in equity. Holland v. Mayor, etc , of Baltimore, 11 Md. 186 ; or where there is a void decree for the sale of real estate. JoTtnson V. Johnson, 30 111. 215. So, an agreement for the sale of land, which was Qot accejDted within a reasonable time, but was after- ward accepted and filed in the recorder s office, was held to be a cloud on the title, for which a bill to remove would lie. Lar- mon V. Jordon, 56 111. 204. And where, after the passing of title, the vendor was declared a lunatic, it was held that this created such a cloud upon title as justified the vendee in coming into equity to have his title established. Younger v. Skinner, 14 X. J. Eq. (1 McCart.) 389. A bond for a deed creates a lien on the land, and casts a cloud upon the obligor's title which he is entitled to have removed ; and if the obligee be in possession, the obligor is not confined to his action of ejectment, even if this would afford a full and complete remedy. Dahl v. Pross, 6 Minn. 89. The exceptional cases in which a court of equity will interfere against a tax or assessment as a cloud are held to be : First, where the proceeding in the subordinate tribunal wiU necessar- ily lead to a multiplicity of suits ; Second, where, otherwise, there will be committed irreparable injury; and Third, whaie the title is by the instrument or proceeding prima facie valid, and it is necessary to show some extrinsic fact to establish its in- validity. Crevier v. Mayor, etc., of New York, 12 Abb. (X. S.) 340 . see Marsh v. City of Brooklyn, 59 X. Y. (14 Sick.) 280 ; Neioell V. Wheeler, 48 X. Y. (3 Sick.) 486 ; Gage v. Billings, 56 111. 268 ; Lee V. Ruggles, 62 id. 427 ; Hamilton v. Fond Du Lac, 25 Wis. 490 ; Taylor v. Rountree, 28 id. 391 ; Loud, v. Charlestown, 99 Mass. 208 ; Hunneioell v. Charlestoton, 106 id. 350. But in some of the States, relief is given solely upon the ground of the ille- gality of the tax. See Scofield v. Lansing, 17 Mich. 437 ; Mc- Pike V. Pen, 51 Mo. 63. In a recent case in Xew York, it was held, that a party has no such constitutional right to the aid of a court of equity for the purpose of removing the apparent lien of a void assessment upon his lands as that the legislature may not deprive him of that particular remedy. It is only when the pretended lien is sought to be enforced by the taking of his prop- erty, that the owner is protected by the constitution. A statute, therefore, depriving the courts of the power to give such relief, and the party the benefit of such remedy, is constitutional and Vol. L — 84 666 BILL TO REMOVE CLOUD ON TITLE. valid. Lennon v. Mayor ^ etc., of New YorJc City, 55 N. Y. (10 Sick.) 361 ; see Aster v. Mayor, etc., of New Torlc, 7 Jones & Sp. (]Sr. Y.) 120 ; 62 X. Y. (17 Sick.) 580 ; Rae v. Mayor, etc., of New TorTc, 7 Jones & Sp. 192. ARTICLE 11. WHEN THE KEMEDT WILL NOT LIE. Section 1. Where party is out of possession. As a general rule, a party out of possession has no right to resort to equity to remove a cloud upon title. Apperson v. Ford, 23 Ark. 746 ; Herrington v. Williams, 31 Tex. 448 ; Polk v. Pendleton, 31 Md. 118; Hay thorn v. Margerem, 7 N. J. Eq. (3 Halst.) 324; Lake Bigler Road Co. v. Bedford, 3 Nev. 399 ; Burton v. Gleason, 56 111. 25 ; Clark v. Covenant, etc., Ins. Co., 52 Mo. 272 ; see Bar- ron v. Bobbins, 22 Mich. 42 ; Thompson v. Lynch, 29 Cal. 189 ; Branch v. Mitchell, 24 Ark. 431 ; Almony v. Hicks, 3 Head (Tenn.), 39; Low v. staples, 2 Nev. 209; O'Brien v. Creig, 10 Kans. 202 ; Taylor v. Rountree, 28 Wis. 391. Nor has an execu- tor or administrator any right to file a bill in equity, for the pur- pose of removing a cloud from the real estate of a decedent ; at least, not until a license to sell has been obtained. Paine v. First Div., etc., R. R. Co., 14 Minn. Q6', Gridley v. Watson, 53 111. 186 ; Shoemate v. Lockridge, 53 id. 503. § 2. Complainant's title doubtful. Where the complainant himself has no title, or a doubtful title, a court of equity will not afford him relief. Ross v. Young, 5 Sneed (Tenn.), 627 ; Huntington v. Allen, 44 Miss. 654 ; West v. Schnebley, 54 111. 523. Nor will equity grant relief where there is a doubt as to the legal construction of a deed. Brown v. Austen, 35 Barb. 341, 364 ; S. C, 22 How. (N. Y.) 394. § 3. Instrument void on its face. If the instrument claimed to constitute the cloud is void upon its face, a court of equity will not interfere to remove it, because such an instrument can work no mischief. Crooke v. Andrews, 40 N. Y. (1 Hand) 547 ; Welter v. St. Paul, 5 Minn. 95 ; Head v. James, 13 Wis. 641 , Meloy V. Dougherty, 16 id. 269 ; Cohen v. Sharp, 44 Cal, 29 , Hartford v. Chipman, 21 Conn. 488 ; and the same is true, although the invalidity does not appear upon the face of the instrument, if it necessarily appears in some one of the links of title which the claimant would have to establish in order to give the instrument force and effect. Fonda v. Sage, 48 N. Y. (3 BILL TO REMOVE CLOUD ON TITLE. 667 Sick.) 173 ; affirming S. C, 46 Barb. 109 ; but see Almony v. JlicA'S, 3 Head (Term.), 39. Thus, a father died seized of real estate, leaving two children, his heirs at law, who became ten- ants in common of the real estate. One of them executed a mortgage upon the whole real estate, and it was held that this did not create a cloud upon the title of the co-tenant which a court of equity would remove, for the reason that a claimant under the mortgage title would have to prove the seizin of the father and the descent to the two heirs, and it would thus neces- sarily appear that the mortgage was only a lien upon an undi- vided half of the real estate. Ward v. Dewey, 16 N. Y. (2 Smith) 519. In further illustration of the rule, see Marsh v. City of BrooTcbjn, 59 N. Y. (14 Sick.) 280 ; Scott v. Onderdonl', 14 N. Y. (4 Kern.) 9 ; Wood v. Seely, 32 N. Y. (5 Tiff.) 105 ; Camp V. Alston, 48 Ala. 81 ; Colien v. Sharp, 4A Cal. 29 ; Shepard- son v. MilwauMe county, 28 Wis. 593. In Almony v. Hicks, 3 Head (Tenn.), 39, it was held, that the jurisdiction of a court of equity to remove cloud upon title will be exercised whether the character of the deed or other instrument com- plained of appears upon its face or otherwise ; and although the defendants are in possession, and complainants have the legal title, and might sue at law for the recovery of the land, that not being esteemed adequate relief. See also TJiompson v. Lynch, 29 Cal. 189 ; Branch v. Mitchell, 24 Ark. 431 ; Carlisle v. Tin- dall, 49 Miss. 229 ; Anderson v. Talbot, 1 Heisk. (Tenn.) 407 ; Mullins V. Akin, 2 id. 535. § 4. Other cases. It has been said, " that can never be consid- ered a legal cloud which cannot for a moment obstruct the unaided rays of legal science where the}^ are brought to bear upon the supposed obscurity." Van Dor en v. The Mayor, etc., of New York, 9 Paige, 388. A bill to remove cloud upon title will not, therefore, lie, where it is apparent from an inspection of a deed or writing, that no danger to the title or interest of the complainant is to be apprehended. Cox v. Clift, 2 N. Y. (2 Comst.) 118; Farnham v. Campbell, 34 N. Y. (7 Tiff.) 480; Tarrent v. Booming Co., 22 Mich. 354. And no relief will be granted where an act en pais is complained of as a cloud on title, where the act does not itself, and without concurring facta and circumstances, proved aliunde, establish any interest in, or title to, the premises. Thus, an attachment against the property of a husband, and a levy thereunder upon the wife's real estate, and the filing of a notice of lis pendens constitute prima facit *568 BILL TO REMOVE CLOUD ON TITLE. no real or apparent incumbrance or hindrance to or upon the wife's title, and a court of equity will not interfere, at the wife's suit, to discharge the attachment levy and vacate the notice of lis pendens as a cloud upon her title. Mulligan v. Baring^ 3 Daly (N. Y.), 75. A claim by a vendor, to collect unpaid purchase-money from lands sold and conveyed, does not constitute a cloud on the title of a judgment creditor of the purchaser, who has obtained a decree that the purchaser holds his interest in the lands as trus- tee for the satisfaction of his indebtedness to such creditor. Bennett v. HotcJiMss, 17 Minn. 89. And where the complain- ants in a bill sought to have certain conveyances set aside, and they claimed as purchasers at a sale under execution, and it ap- peared that when judgment was rendered the judgment debtor had no title, either legal or equitable, in the land, the bill was dismissed. McDoioell v. 87iields, 12 Mo. 441. The cases, generally, in which courts of equity have refused their interference to remove clouds upon title are, where such interference was unnecessary, vexatious and expensive, because the instrument or other proceeding in question was void on its face, or had already been adjudged void. Hartford v. Qliip- men, 21 Conn. 488; see Hotchkiss v. Elting, 36 Barb. 38 ; Butler V. Viele, 44 id. 166; Kay v. Scales, 37 Penn. St. 31. Gross inadequacy of price is such a badge of fraud that, although it will not, per se, authorize a court of equity to declare the title to land void, it will justify such court in refusing to aid iu removing clouds upon the title. Huntington v. Allen, 44 Miss. 654. And a bill which states only a pretended title in the respondent, and prays for relief against it on the ground of an apprehended injury, cannot be maintained. Torrent v. Boom- ing Co., 22 Mich. 354. ARTICLE III. MODE OF GRAIS'TING RELIEF. Section 1. In general. It is impossible to lay down ruleg which will cover all the cases in which a court of equity will intei-- pose its jurisdiction to remove a cloud upon title. This jurisdic- tion does not rest upon any arbitrary rules, but depends upon the facts of each case ; and whether it shall be exercised or not, is generally in the discretion of the equity court. Great cautiori will be exercised by the courts to prevent abuse, and in many cases the parties must be left to their remedies at law. See BILL TO REMOVE CLOUD ON TITLE. 669 Fonda v. Sage, 48 N. Y. (3 Sick.) 173 ; Glazier v. Bailey, 47 Miss. 395. Relief is afforded upon the principle, quia timet ; and it is now fully established that, in granting sach relief, a court of equity has jurisdiction to set aside deeds and other legal instruments, which are a cloud upon title, and to order them to be delivered up and canceled. Hamilton v. Cummins, 1 Johns. Ch. 517 ; Leigh v. Ecerhart' s Ex'rs, 4 T. B. Monr. (Ky.) 380 ; Apthorp v. Comstock, 2 Paige, 482 ; Petit v. ShepJierd, 5 id. 493 ; Burt v. Cassety, 12 Ala. 734 ; Hall v. Fislier, 9 Barb. 17 ; Kimberly v. Fox, 27 Conn. 307 ; Tucker v. Kenniston, 47 N. H. 267, 270. It is likewise settled by authority, that upon the same principle that the court will remove a cloud already existing upon the owner's title, it will interfere by injunction to prevent a conveyance or other proceeding that would create such a cloud. PetitY. Shepherd, 5 Paige, 493; Marine. City of TJtica, 44 How. (N. Y.) 334. Thus, where a municipal corporation sold lands for non-payment of an alleged assessment, which in fact was not made, it was enjoined from making a conveyance, which, by statute, would ho, prima facie evidence of all the facts recited, and the certificate of such sale was decreed to be canceled. Scott V. Onderdorik, 14 N. Y, (4 Kern.) 9, So, where land was sold on execution against one who held it as trustee for a married woman, and a certificate given to the purchaser by the sheriff", it was held that this was a cloud upon the title, which she might remove by suit in equity before the time of redemp- tion had expired. Lounsbury v. Purdy, 18 JST. Y. (4 Smith) 515. So it is held that a tax certificate resting on an illegal tax is a cloud which equity will remove, and restrain the completion of the sale. Dean v. Madison, 9 Wis. 402 ; see Knoiolton v. Su- pervisors^ etc., id. 410 ; Laplaine v. Madison, id. 409. And where the sheriff was about to sell the plaintiff's homestead ille- gally, the court interfered by its decree to prevent the sale, hold- ing that it was the same in principle as removing a cloud already created. Shattuck v. Carson, 2 Cal. 588 ; see Guy v. Hermance, 5 id. 73 ; Bent v. Cassidy, 12 Ala. 36 ; Norton v. Beaver, 5 Ohio, 178. In general, an execution sale may be enjoined, where it would cause a cloud on the title of the complainant. Key, etc. V. Munsell, 19 Iowa, 305; Bell v. Greenwood, 21 Ark. 249 ; Fix- ley V. Huggins, 15 Cal. 127. Though in Drake v. Jones, 27 Mo, 428, it is held, that where a sheriff's sale would not pass any title to the purchaser, such sale will not be enjoined, on the ground merely that it might cast a cloud on the title. 670 BONDS. CHAPTER XXVIII. BONDS. TITLE I. OF BONDS IN GENERAL. ARTICLE I. NATURE AND DEFINITION. Section 1. In general. An obligation or bond is an instrument in writing and under seal, whereby the obligor declares himself, and usually his heirs, executors and administrators, bound to pay a certain sum of money to another at a day named. If this be alf, the bond is called a single one, simplex obligatio. But there is generally a condition added, tiiat, if the obligor does some particular act, the obligation shall be void, or else shall remain in full force ; as payment of rent, performance of cove- nants in a deed, or repayment of a principal sum of money bor- rowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. See 2 Broom & Had. Com. (Wait's Ed. Notes) 767 ; Wood v. WiUis, 110 Mass. 454; Hargroms v. Cooke^ 15 Ga. 321; State y. Thom- son, 49 Mo. 188 ; Denton v. Adams, 6 Vt. 40 ; Gilbert v. An tliony, 1 Yerg. (Tenn.) 69 ; Harman v. Harman, 1 Baldw. 129. This security is also called a specialty ; the debt being therein particularly specified in writing. Taylor v. Glazer, 2 Serg. & R. 502. And the party's seal, acknowledging the debt or duty, and confirming the contract renders it a securit}'^ of a higher nature than those entered into without the solemnity of a seal. Bac- Abr., Obligations, A, A bond for money, to be void upon the doing of a certain thing, is, in legal effect, a contract to do that thing. Waynick V. Riclimond, 11 Kan. 488. If the obligor in a bond hinds himself, without adding his lieirs, executors and administrators, the executors and adminis^ trators are bound, but not the heir ; for the law will not imply the obligation upon the heir. Sheppard's Touchst. 369 ; Coke Litt. 209, a. BONDS. 671 ARTICLE II. PARTIES. Section 1. Obligor. All persons who have the capacity to con- tract, and whom the law regards as having sufficient freedom for that purpose, may bind themselves in bonds and obligations. But, if a person is illegally restrained of his liberty and during such restraint enters into a bond to the person who causes the restraint, the obligation may be avoided for duress of imprison- ment. TJiompson v. Loclcwood, 15 Johns. 256, 259 ; Governor v. Williams, Dudley (Ga.), 424 ; Eddy v. Herrin, 17 Me. 338. And a bond executed through fear of unlawful imprisonment may be avoided on account of duress. WJtUefield v. Longfellow, 13 id. 146. So, under some circumstances, a bond may be avoided by duress of goods. Collins v. Wesibury, 2 Bay (S. C), 211 ; Sas- jportas V. Jennings, 1 id. 470 ; &paids v. Barrett, 57 111. 289 ; S. C, 11 Am. E. 10 ; see Skeate v. Beale, 11 Ad. & El. 983 ; Atlee v. BacTchouse, 3 Mees. & W. 650 ; Nelson v. SuddartJi, 1 Hen. & Munf. (Va.) 350 ; FosTiay v. Ferguson, 5 Hill (N. Y.), 158. It is a rule of the common law, that a married woman cannot, during her coverture, make an obligatory contract {Leiois v, Lee, 3 B. & C. 291 ; Marshall v. Button, 8 T. R. 545) ; and her bond is ipso facto void, and shall neither bind her nor her husband. Bac. Abr., Obligations, D.; see Concord Bank v. Bellis, 10 Cush. (Mass.) 276. So, the bond of an infant is void at law, though he fraudulently represents himself to be of age at the time. Colcock V. Ferguson, 3 Desau. (S. C.) 482 ; Conroe v. Birdsall, 1 Johns. Gas. (N. Y.) 127. And although he confirms it after he is twenty- one, still it is invalid unless the confirmation be of as high authority as the bond itself. Baylis v. Dineley, 3 Maule & Selw. 477. Likewise, if a person non compos mentis enters into a bond, it is void. Tales v. Boen, 2 Stra. 1104; Lang v. Whid- den, 2 N. H, 435 ; Bice v. Peet, 15 Johns. 503 ; Emery v. Hoyt, 46 111. 258. And a bond may be avoided by reason of excessiv6 drunkenness at the time of executing it. Cole v. Bohins, Bull. N. P. 172 ; Gore v. Gibson, 13 M. & W. 625. And see Cum* mings v. Henry, 10 Ind. 109 ; Caulkins v. Fry, 35 Gonn. 170 ; Wilson V. Bigger, 7 Watts & Serg. (Penn.) 111. But if, on be- coming sober, the party intoxicated retain what he received in consideration, he will be held to have confirmed it. Williams V. Indbnet, 1 Bailey (S. G.), 343; Guy y. McLean, 1 Dev. (N, 872 BONDS. C.) 47 ; Seymour v. Delancy, 3 Cow. 445 ; Matthews v. Baxter, L. R., 8 Ex. 132 ; Joest v. TF/ZZ/am^, 42 Ind. 565. And if an iufant, feme covert, etc., who are disabled by law to bind them- selves in bonds, enter together with a stranger, who is under none of these disabilities, into an obligation, the stranger is bound, though it be void as to the infant, etc. Bac. Abr., Obli- gations, B. So, a joint obligor on a bond cannot take advan- tage of the fact that his co-obligor executed the bond while under duress. Spaulding v. Crawford, 27 Tex. 155. § 2. Obligee. Infants, idiots, as also a feme covert, may be obligees. An alien may likewise be an obligee ; for since he is allowed to trade and traffic with us, it is but reasonable to give Mm all that security which is necessary in his contracts, and which will the better enable him to carry on his commerce and dealings among us. Co. Litt. 129 5. / Wells v. Williams, 1 Ld. Raym. 282. But at common law a feme covert can neither be obligor or obligee to her husband, nor vice versa, being but one person in law. Bac. Abr., Obligations, D. ; and a person cannot be bound to himself {Smith v. Lusher, 5 Cow. 688, 709), even in connection with others. lb. ; Davis v. Somerville, 4 Dev. (N C.) 382. But, it has been held, that a bond given by the hus- band to the intended wife prior to marriage, conditioned for pay- ment of money to her after the obligor's death, is not extinguished by the coverture ; and that such a bond may be enforced at law against the heirs of the husband. Cage v. Acton, 1 Ld. Raym. 515 ; Milbourn v. Ewart, 5 Term R. 381. ARTICLE III. FORM AND CONTENTS OF BOND. Section 1. In general. At common law, a bond is a deed signed, sealed, and delivered. It is first to be written, by which it is exempted from that uncertainty arising from the imperfec- tion of memory to which unwritten contracts must always be exposed. It is then to be sealed by the party to be bound, and lastly, to be delivered by him, which is the consummation of his resolution. Gilbert v. Anthony, 1 Yerg. (Tenn.) 69. But the law does not require any precise form of words as essentially necessary to create a bond or obligation. Any mem- orandum in writing under seal, acknowledging a debt, or denot- ing the intention of the party to bind himself for the payment of a sum of money, will oblige him as ejffectually as the most formal BONDS. 673 words, provided the writing be sealed and delivered. Such, for example, are the following : "I, A. B., have borrowed lOl. of C. D.," or "Memorandum that A. owes B. 10?.," or "I have agreed to pay J. S. 19Z." See Saioyei' v. Mawgridge^ 11 Mod. 21& ; Watson V. Snaed^ Yent. 238 ; Bedow's Case, 1 Leon. 25. But, a writing purporting to be an obligation for the payment of money, without naming a person as obligee, is not a bond. Pelhain v. Grigg, 4 Ark. 141 ; Phelps v. Call, 7 Ired. L. (N. C.) 262. The date of a bond is not essential. It will be valid though there is no date, or the date is erroneous. Pierce v. RicJiardson, 37 N. H. 306 ; Fournier v. Cyr, 64 Me. 32. § 2. Consideration. Every bond, from the solemnity of the instrument, carries with it an internal evidence of a good consid- eration, and is to be sujDported in a court of law, except facts are disclosed to the court whereby the consideration appears to be immoral, illegal, or against the policy of the law. Page v. Trufant, 2 Mass. 159 ; Dorr v. Munsell, 13 Johns. 430 ; Hold- ridge V. Allin, 2 Root (Conn.), 139; Coyle v. Fowler, 3 J. J. Marsh. (Ky.) 473 ; Harrell v. Watson, 63 N. C. 454 ; ParUr v. Flora, id. 474 ; Harris v. Harris, 23 Gratt. (Va.) 737. jSTo con- sideration need pass directly between the obligee in a bond and the surety. The consideration which supports the principal's contract will support that of the surety. Notwithstanding the promise of the surety may appear to be founded on a past or executed consideration, he may, nevertheless, be liable ; for the consideration may have moved at the instance or request of the surety. And if so, the promise is not a naked one, but is coupled with the precedent request, and the subsequent undertaking will be valid and binding upon him ; and such request may be inferred from the circumstances and the nature of the trans- action. Robertson v. Finley, 31 Mo. 384. An illegal consideration vitiates a bond no less than a parol agreement. Trustees v. Gallatin, 4 Cow. 340 ; Morton v. Fletcher, 2 A. K. Marsh. (Ky.) 138 ; among the instances of which, are the following : Bonds given for monej^ won at play. Davidson v. Givins, 2 Bibb (Ky.), 200 ; or for the price of tickets in a lottery not authorized by law. Morton v. Fletcher, 2 A. K. Marsh. (Ky.) 138 ; a bond given to indemnify an officer for not returning an execution. Greemoood v. ColcocJc, 2 Bay (S. C), 67 ; or to induce him to perform a duty required of him by law. Mitchell V. Vance, 5 T. B. Mon. (Ky.) 529 ; or to indemnify him for per- mitting an escape. Lowery v. Barney, 2 D. Chip. (Yt.) 11 ; a bond Vol. I. —85 674 BONDS. given to an officer in consideration of an act that he has no legal authority to do. Moore v. Allen, 3 J. J. Marsh. (Ky.) 621 ; or, a bond for money engaged to be given for the sale of an office concerning the administration of justice. Dams v. Hull, 1 Litt (Ky.) 9 ; Lewis v. Knox, 2 Bibb (Ky.), 453. So, a bond given to suppress a prosecution for malicious mischief is void. Cameron v. McFarland, 2 Car, Law Repos. 415 ; as is likewise a bond given in consideration of the obligee's withdrawing opposition to an insolvent debtor's discharge. Tuxhury v. Miller, 19 Johns. 311 ; Goodwin v. BlaTce, 3 Monr. (Ky.) 106 ; but see Price V. Summers, 5 N. J. L. (2 South.) 578. A bond given on an im- moral consideration, as, if it be given by a man to a woman as a premium pudicitice, in consideration of future cohabitation, ia void. Tromnger v. McBurney, 5 Cow. 253 ; Lady Cox's Case, 3 P. Wms. 339 ; Walker v. Perkins, Burr. 1568 ; Walker v Gregory, 36 Ala. 180 ; Singleton v. Bramer, Harper (S. C), 201. Though it is otherwise if the bond be given in consider- ation of past cohabition. lb. ; and see Howell v. Fountain, 8 Ga. 176 ; Winnehiimer v. Weisiger, 3 T. B. Monr. (K}^) 35 ; Bunn V. Winthrop, 1 Johns. Ch. 329 ; notwithstanding the obligor be a married man during the whole period of cohabi- tation. Nye V. Mosely, 6 Barn. & C. 133 ; Lady Cox's Case, 3 P. Wms. 339. Bonds in restraint of trade are void ; as for example, a bond conditioned that the obligor shall never carry on, or be concerned in, the business of founding iron. Alger v. TTiacher, 19 Pick. (Mass.) 51 ; or a covenant by the vendor of marl land, that neither he nor his assigns will sell marl from the adjoining land. Brewer v. Marshall, 19 N. J. Eq. 537. But it is otherwise, if the condition be only not to trade within certain reasonable limits. See McClurg^s Appeal, -58 Penn. St. 51 : Nobles v. Bates, 7 Cow. 307 ; Reese v. Hendricks!,! Leg. Gaz. Rep. (Penn.) 79. Thus, a bond not to engage in the business of iron casting within sixty miles of Calais, said area containing but few places of much business, was held valid. Whitney v. Slayton, 40 Me. 224. So, the rule that bonds in restraint of trade are void would not seem to apply at a time when it was the policy of the law to impose restrictions upon commerce, and consequently, that an embargo bond, made while the embargo laws were in force, would be binding as a common-law bond. Dixon V. United States, 1 Brock. 177. § 3. Seal. There cannot be at common law a bond without a seal. See Denton v. Adams, 6 Vt. 40 ; Cantey v. Dureit, Harp BOIS^DS. 675 (S. C.) 434 ; Btate v. TJtompson, 49 Mo. 188 ; Pease v. Lawson^ 33 id. 35 ; Turner v. Field, 44 id. 382. And i^ is held, that the common law intended, by a seal, an impression upon wax or wafer, or some other tenacious substance capable of being im- pressed. Warren v, Lyncli, o Johns. 239 ; Colt v. Milli'kin, 1 Denio, 376. In New Hampshire a distinct impression of the seal upon paper is held to be a sufficient seal, without wax or wafer. 9 N. H. 558 ; Allen v. Bullwan R. R., 32 id. 446. In Maryland, a scroll has been considered a seal from the earliest period of its judicial history. Traslier v. Ecerliart, 3 Gill & Johns. 234, 246. And in many of the other States, the common-law seal has become well nigh obsolete, the statutory " scrawl, by way of seal," having almost entirely superseded it. Among such States may be mentioned New Jersey, Delaware, Virginia, Ohio, Pennsylvania, Kentucky, Indiana, Georgia, Illinois and Missouri. See Jones v. Longwood, 1 Wash. (Va.) 42 ; Force v. Craig, 2 Halst. (N. J.) 272 ; Alexander v, Jameson, 5 Binn. (Penn.) 238 ; Relph v. Gisl, 4 M'Cord (S. C), 267 ; Vanblaricum v.' Teo, 2 Blackf. (Ind.) 322; Harden v. Webster, 29 Ga. 427; Pease v. Lawson, 33 Mo. 35. But the fact that a writing contains the words, *' sealed with my seal," etc., when there is no seal or scroll attached, will not make it a bond or sealed instrument. Chilton v. People, Q^ 111. 501. It is provided by statute in Michigan, that no bond shall be deemed invalid for want of a seal. Mich. Comp. Laws, § 4550. And this provision gives an unsealed instrument all the force and effect that a sealed one of the same tenor would have. McKinney v. Miller, 19 Mich. 142. So in Connecticut, by statute, in 1838, bonds executed without seal are declared to be valid, as though the same had been sealed. Fisli v. Brown, 17 Conn. 343. And under a statutory act in Tennessee, abolishing private seals, a bond is a deed signed and delivered. Act of 1850, ch, 20, § 1 ; Code, 1804. And see Bancroft v. Stanton, 7 Ala. 351. The word "seal," printed between brackets, on an attachment bond, and adopted by the parties as their seal or scroll, was held a sufficient sealing of the instrument in Missouri. JJnderioood v. Dollins, 47 Mo. 259. And a bond without a seal has been held good by the Supreme Court of the United States, United States v. Linn, 15 Pet. 290, 315. Several obligors may adopt one seal or scroll. Hollis v. Pond-, 7 Humph. (Tenn.) 222. And a bond signed by 'A,' (l. s.) " for B, C and D." is sufficiently executed as the bond of B, C and D, by their agent, although only one seal is used. Martin 876 BONDS. V. Dortch, 1 Stew. (Ala.) 479. So, where a bond coLtainiiig the usual allegation, "sealed with our seals," has been signed and sealed by one or more obligors, and an additional obligor subse quently signs, and delivers the same as his bond, without affix ing a new seal, it is evidence that he adopts a seal already affixed. Pequaiolceit v. Matlies, 7 N. H. 230. A bond signed in the name of the firm, with one seal only, is the bond of the partner alone, who signed it. Button v. Hampson, Wright (Ohio), 93 ; Russell V. Anndble, 109 Mass. 72. A party who signs and seals a bond will be bound by it, although his name be not mentioned in the body of the instru- ment. Smith V. Croolcer, 5 Mass. 538 ; Fournier v. C?/r, 64 Me. 35 ; Blakey v. Blakey, 2 Dana (Ky.), 463 ; Martin v. DortcTi, 1 Stew. (Ala.) 479. And where an obligor signs his name and affixes his seal in the space between the penal part of the bond and the condition thereof, the condition is as much a part of the instrument as if the signature was at the foot of it. Reed v. Drake^ 1 Wend. 345 ; Fournier v. Cyr^ 64 Me. 35 ; and see Richardson V. Boynton, 12 Allen (Mass.), 138. An instrument of writing in the form of a note, purporting to have been made by a corporation, with the seal of the corpora- tion attached thereto, is a sealed instrument, and must be declared on as such. Benoist v. Carondelet, 8 Mo. 250. ARTICLE IV. EXECUTION, MODE OF. Section 1. Attestations, etc. A bond may be executed by an attorney thereto lawfully authorized. M^ Candlish v. Hopkins, 6 Call (Va.), 208. But such authority must be under seal. Be- lius V. Cawthorne, 2 Dev. L. (N. C.) 90 ; McNutt v. McMahon, 1 Head (Tenn.), 98. And it is only by a writing under seal, that a principal can ratify a bond executed by an agent without com- petent authority. Ingraham v. Edwards, 64 111. 526. A power of attorney to execute a bond will be presumed to have been executed on the day of its own date, if nothing is made to appear to the contrary. Mager v. Hutchinson, 7 111. (2 Gilm.) 265. It is not necessary to the execution of a bond, that the party should himself write his name and affix his seal theretc. If, on the in« Btrument being shown to him, his name and seal having been put to it by another, he acknowledges it to be his act and deed. or uses words equivalent to such acknowledgment tbe jury may BONDS. 677 find it to be liis deed. Hill v. Scales, 7 Yerg. (Tenn.) 410; Rhode V. LoiUJiain, 8 Blackf. (Ind.) 413. So, acknowledging his signature, on being inquired of, without intimating that he did not consider himself bound, is sufficient to bind the party so signing and sealing. Byers v. McClanalian, 6 Gill. & J. (Md.) 250. Nor is it necessary that a witness to the signature sees a party sign his name. It is enough if the obligor acknowledges it to be his signature, and requests the witness to sign. Pequaio- Tcett V. Mathes, 7 N. H. 230. There can be no objection to the manner or form in which an obligor makes his signature to a sealed instrument, provided it appears that he made it for the purpose of binding himself. Hinsaman \. Hinsaman, 7 Jones' L. (N". C.) olO. Thus the fact that a man seals and delivers a bond as his, in which he is named as surety, and that he does this with the intent to become a party to it, is amply sufficient to justify a verdict that it is his bond, though his name is placed upon it in the proper place for the name of a witness. Ricfiardsoii v. Boynton, 12 Allen (Alass.), 138. See also Argenbrigld v. Campbell, 3 Hen. & M. (Va.) 144. But if a bond is not read to the party executing it, and he can- not read, and the contents are misrepresented, it will not bind him. Green v. North Buffalo Township, 56 Penn. St. 110. So, where an illiterate man was induced to sign a bond by the fraud- ulent representation that it was a petition, he was held not liable thereon although the obligee was not aware of the fraud. Schuyl- Jcill county v. Copley, 67 Penn. St. 386 ; S. C, 5 Am. R. 441. And a bond, executed when the obligor is so drunk as to be incapable of contracting, may be avoided. Williams v. Inahet^ 1 Bailey (S. C), 343. See ante, art. 2, § 1. A bond purporting to be the joint obligation of a principal and sureties, but signed by the latter only, is bad. Cutler v. ^Vhit- temore, 10 Mass. 442 ; Adams v. Bean, 12 id. 139 ; Wood v. Wash- hum, 2 Pick. (Mass.), 24 ; for the reason that it is presumed that each undertook to become liable only if the others did. Sacramento v. Dunlap, 14 Cal. 421 ; see Sharp v. United States, 4 Watts (Penn.), 21 ; Haskins v. Lombard, 16 Me. 140 ; Dair v. United States, 16 Wall. 1 ; Johnson v. Weatherwax, 9 Kan. 75 ; Loeio V. Stocker, 68 Penn. St. 226. But where two persons exe- cute a bond, one as principal and the other as surety, they are equally bound to the obligee. Wilson v. Campbell, 2 111. (1 Scam.) 493 ; and a bond which is drawn up in proper form to be 678 BONDS. signed by a principal and a surety, is well executed, if it is first signed by the surety, and afterward in his absence, but before its deliver}^, is signed by tlie principal. Rundell v. La Fleur, 6 Allen (Mass.), 480. The obligor of a bond cannot avoid his liability by showing that he was induced to execute the bond by the fraud of one of his co-obligors, in which the obligee did not participate. Bigelow v. Comegys, 5 Ohio St. 256 ; see Spauld- ing V. Crawford, 27 Tex. 155. But, if a bond is executed jointly and severaMy by three, and an alteration is made in it by con- sent of two, in the absence of the third, and the obligee after- ward erase the signature and seal of the third without the con- sent of the others, the bond is void. Love v, SJioape, Walk. 508 ; Dewey v. Bradbury, 1 Tyler (Vt.), 186. Where the name of a party appears in the body of a bond, but is not subscribed to it, there is not as to such party a valid execution of the bond, and he cannot be held liable thereon on the supj)Osition that he adopted the name in the body of the bond as a signing of it, even if the name was written there by himself. Wild Cat Branch v. Ball, 45 Ind. 213. § 2. Filling up blanks. A bond, executed in blank and filled up afterward by the express parol authority of the obligor, is valid ; and the authority to fill up the blank is also authority to redeliver it. Gihhs v. Frost, 4 Ala. 720 ; see Bell v. Eeefe, 13 La. Ann. 524 ; Spencer v. Bucliariaii, Wright (Ohio), 583 ; Neio- lin V. Beard, 6 W. Va. 110. But such parol authority may be revoked by parol also, and if revoked before the bond is com- pleted, the authority is at an end. GiUbs v. Frost, 4 Ala. 720. And it has been held, that a paper signed and sealed in blank, with verbal authority to fill it up, which is afterward done, is void as to the party so signing, etc., unless he afterward deliver it, or acknowledge and adopt it. Perminter v. McDaniel, 1 Hill (S. C.), 267 ; Byers v. McClanahan, 6 Gill & J. (Md.) 250 ; Ayers V. Harness, 1 Ohio, 368 ; Wynne v. Governor, 1 Yerg. (Tenn.) 149. But see contra, Wiley v. Moor, 17 Serg. & E. (Penn.) 438 ; see also Frauldin Bank v. Bartlet, Wright (Ohio), 742 ; Blgfried v. Levan, 6 Serg. & E. (Penn.) 308 ; Bartlet v. Board of Education, m 111. 364 ; McNutt v. McMahan, 1 Head (Tenn.), 98. A bond with a blank left for the name of the obligee is a nullity. It imposes no liability upon the obligor, and confers no rights on him who receives. Nor can the name of the obligee be inserted by an agent authorized by parol. Preston v. Hull, 23 Giatt (Va.) 600 ; S. C, 14 Am. R. 153; Upton v. Archer, 41 Cal. 85; * BONDS 679 10 Am. Rep. 266, 267, 268, note ; but see contra, Field v. Stagg, 52 Mo. 534; S. C, 14 Am. R. 435; Van Etta v. Evenson, 28 Wis. 33; 9 Am. Rep. 486; Vose v. Dolan, 108 Mass. 155; 11 Am. Rep, 331. See ante, art. 3, § 1 ; Edelin v, Sanders, 8 Md. 118. So, a bond signed bv tlie defendant before the name of the obligee, or the amount thereof is inserted, is not the deed of the defendant, and cannot be recovered upon, although j^aymentb have been made thereon. Barden v. SoutJierland, 70 N. C. 528. § 3. Delivery and acceptance. Delivery is essential to the validity of a bond. Wild Cat Branch v. Ball, 45 Ind. 213 ; McPherson v. Meelc, 30 Mo. 345 ; see Stone v. Myers, 9 Minn. 303. It is not perfected until delivery ; where, therefore, a bond is signed on Sunday, and delivered on the day following, it is net void. Commonwealth v. Kendlg, 2 Penn. St. 448 ; Prather f Harlan, 6 Bush (Ky.), 185. Delivery to the i^ayee or his agent is absolute at law, and its effect cannot be controlled b}' parol. Madison, etc., Co. v. Stevens, 10 Ind. 1. And it is held, that where the terms and form of a bond have been previously assented to, and the consideration paid by the obligee, such bond should be considered as having been delivered as soon as placed in any public conveyance, or in the hands of any person, to be delivered to the obligee. Alcalda v. Morales, 3 Xev. 132. So, if the obligor, after signing and sealing the bond, holds it out in his hand, and says to the obligee : " Here is your bond, what shall I do with it ?" This is a sufficient delivery, though It never comes to the actual j^ossession of the obligee. Folly v. Vantuyl, 9 ^. J. L. (4 Halst.) 153 ; see Ward^ s Appeal, 35 Conn. 161. But where the obligor delivered the bond to a third per- son, to be delivered to the obligee, who never received it, the bond was held not binding. State v. Oden, 2 Harr. & J. (Md.) 108, n. And where a bond is not delivered to the obligee, and is put into his possession by one who has no authority to deliver it, the obligee cannot maintain an action upon it. Fay v. Rich- ardson, 7 Pick. (Mass.) 91 ; Fitts v. Green, 3 Dev. (N. C.) 291 ; Whitsell V. Mehane, 64 X. C. 345. So, delivery in blank is an insufficient delivery, unless recognized after the blank is filled. Edelin v. Sanders, 8 Md. 118. A bond cannot be delivered to the obligee, or to one of sevei-al obligees, as an escrow. Moss v. Riddle, 5 Cranch, 351 ; Blume V. Boioman, 2 Ired. L. (N. C.) 338; State v. Chrisman, 2 Ind. 126 ; Perry v. Patterson, 5 Humph. (Tenn.) 133. A delivery to one obligee is a delivery to all. Moss v. Riddle^ 5 Cranch, 351. 680 BONDS. But a bond may be delivered to the principal obligor as an escrow, by a surety. Pauling v. United States, 4 Cranch) 219. And parol evidence is admissible to show that a bond was delivered as an escrow, in such case. Crawford v. Foster, 6 Ga. 202 ; see Bonce v. Kellett, 11 id. 286 ; Fertig v. Boucher, 3 Penn. St. 308 ; Statew Bodly, 7 Blackf. (Ind.) 355. As the possession of a bond is prima facie evidence of a delivery. Grim v. School Direct- ors, 51 Penn. St. 219 ; Clarlc v. Bay, 1 Harr. & J. (Md.) 323 ; Blank- man V. Yallejo, 15 Cal. 638. So the signing, sealing, and delivery of a bond, are prima facie evidence of its acceptance and approval. Wilson v. Ireland, 4 Md. 444. And if an obligee once accepts a bond, he cannot afterward disagree to it, so as to make it void. Bank of Newbern v. Pugh, 1 Hawks (N. C), 196 ; Pequawket Bridge v. Mathes, 8 N. H. 139. If a bond is delivered on the day of its date, and accepted conditionally, to become absolute when the sufficiency of the sureties shall be certified by A, A's subsequent certificate will make it a valid delivery and acceptance from the date of the bond. Seymour v. Yan Slyck, 8 Wend. 414. The law is well settled that a bond takes efifect from its delivery ; and the day of delivery may be shown whenever it becomes material. Fournier v. Gyr, 64 Me. 32. ARTICLE Y. CON'STRUCTION' AND EFFECT. Section 1. Recitals. A recital in a bond preceding the condi tion is conclusive upon the parties as an admission of the fact recited, and may restrain the condition, tlie words of which imply a greater liability than the recital. Bennehan v. Wehh, 6 Ired. L. (N. C.) 57; Bell v. Bruen, 1 How. 169 ; Carpenter v. Buller, 8 M. & W. 209 ; Pear sail v. Summerset, 4 Taunt. 593 ; Fletcher v. Jackson, 23 Yt. 581 ; and see Hoke v. Hoke, 3 W. Ya. 561. But a recital of matter immaterial to the object of the bond works no estoppel against the party executing it. Reed v. McCourt, 41 N. Y. (2 Hand) 435. § 2, General rules. In giving construction to the condition of a bond, where the intention of the parties is manifest, the court will suppress insensible words, and supply accidental omissions, in order to give effect to that intention. Bredell v. Barber, 9 Ired. L. (N. C.) 250; Whitsett v. Womack, 8 Ala. 466; see Be- BOXDS. 081 Soto V. Dickson, 34 Miss. 150. And the whole language of the condition of a bond is to be taken into consideration, in ascer- taining the true construction of different parts of it. Bank x. Wlllard, 10 ]^. H. 210. If the condition, instead of specifjing the particular purposes for which the bond is given, refers to a paper which does specify them, it is equivalent to the enumera- tion of these purposes in the bond. United States v. 2IauTice^ 2 Brock. 96. So, an agreement, entered into at the same time that a bond is executed, and indorsed thereon, must in equity be considered a part thereof. Hiiglies v. Sanders, 3 Bibb (Ky.)? 360 ; NicJtols v. Douglass, 8 Mo. 49 ; see Shermer v. Beale, 1 Wash. (Va.) 11 ; Gordon v. Frazier, 2 id. 130. A bond single is to be taken most strongly against the obligor ; but a condition annexed, being for his benefit, is to be taken most stronglj^ in his favor. Bennehan v. Wetjh, 6 Ired. L. (X. C.) 57. And statu- tory bonds taken by officers of the court in the absence of the obligee are to be liberally construed. Clayton v. Anthony, 18 Graft. (Va.) 578. A bond, in form joint and several, but signed by one only, is a several bond, and if the obligor signs the names of others without authority from them, the effect of it is not changed. Wood V. Ogden, 16 N. J. L. (1 Harr.) 453. A bond to pay a sum of money at the death of the obligor, drawn in absolute terms, and unconditionally delivered, takes effect as a present obliga- tion, and is irrevocable. Mack^ s Appeal, 68 Penn. St. 231. ^Vhere a bond is conditioned for the payment of a sum certain, without specifying any time of payment, the money is due im- mediately without demand, and bears interest from the date of the bond. Purdy v. Phillijps, 1 Duer (X. Y.), 369 ; S. C. affirmed, UN. Y. (1 Kern.) 406. See Omohundro v. Omohundro, 21 Graft. (Va.) 626. A bond to appear, abide by and perform a judgment, secures payment of the judgment. Cole v. Reilly, 28 Ga. 431. The very general disposition of the courts in this country is to regard the sum expressed in a bond as a penalty or security for the performance of the condition, and not as liquidated dam- ages in cases where the parties have not expressly declared it to be certainly the one or the other. Therefore, if the agreement assumes the form of a bond, with a condition that it shall be void upon the performance or non-performance of an act, the prima facie presumption is, that the sum of money mentioned therein is intended merely as a security, and not as liquidated damages ; and this presumption will stand until controlled by very strong Vol. L — 86 682 BONDS. considerations. Davis v. Gillett^ 52 N. H. 126. See Swift v. Crow^ 17 Ga. 609 ; Har groves v. Coolce, 15 id. 321 ; Lyon v Clark, 8 N. Y. (4 Seld.) 148 ; Griffiths v. Hardenhergh, 41 N. T ;2 Hand) 464. f) 3. Of particular words and plirases. Where the condition of i> bond is that the parties shall perform the decree of "the court," it means the court which shall ultimatelj'^ decide the cause. Archer v. Hart, 5 Fla. 234; United States v. Little Charles, 1 Brock. 381. The words "jointly and severally,'' in a bond, must be construed distributively, so as to apply as well to the obligors as to their heirs. "We bind ourselves," makes them joint obligators ; " we bind our heirs, executors and admin- istrators," binds them jointly, and " we bind each and every of them." binds them severally. Mitchell v. Darricott, 3 Brev. (S. C.) 145. See PeoiDle v. Love, 25 Cal. 520. A bond beginning, "I hereby bind myself," but signed by several, is the joint obligation of all the signers, or the several obligation of each. Knisley v. Sheriberger, 7 Watts (Penn.), 193 ; and see Leith v. Bush, 61 Penn. St. 395 ; S7iort v Town of Lancaster, 17 Ohio, 96; Willey v. State,, 3 Ind. 500; Supervisors of St. Joseph v. Coffenhury, 1 Mich. 355. A bond to devise " all my personal estate of every description, as well what I now have in possession as what 1 may receive at the decease of ni}' mother," the obligor to keep possession of the property during his life, is not void for uncertainty. JenMns V. Stetson, 9 Alien (Mass.), 128. And where the condition of a bond for the plaintift''s maintenance required the obligor to furnish to the obligee " money necessary for him to spend, whenever he thinks proper to visit his friends," it was held, that whenever, in the honest and fair exercise of his judgment, the obligee thought proper to make such visits, the obligor was bound to furnish money ; but not, if exercised wantonly or capriciously. Berry v. Harris, 43 N. H. 376. In a bond to A B, administra- tor, " or" C D, administratrix, the word "or" will be taken to mean "and." Brlttin v. Mitchell, 4 Ark. 92. See Parker v. Carson, 64 N. C. 530. And where it clearly appeared upon the face of the whole instrument that the name of "Wheeler" had by mistake been substituted for that of "Woodward" as the obligor in the condition of a bond of indemnity, the court con- strued the instrument as though the mistake had not occurred. Richmond v. Woodward, 32 Vt. 833. But where the defendant's name was Thomas B. Hanly, a bond for costs, filed bj'^ the plain BONDS. 683 tiff, executed to Thomas B. Han, was lield insufficient. Hardy V. Camphell, 4 Ark. 562. A senseless or repugnant condition will not affect the true intent of the bond ; as if the condition be that " if the obligor do not pay." Stockton v. Turner, 7 J. J. Marsh. (Ky.) 192. And see 'Gihhs v. Halstead, 24 N. J. L. (4 Zab.) 866. When a bond is executed in one country with a view to its performance in another, the law of the latter country furnishes the rule for determining its obligation. Carneal v. Day, 6 Litt. (Ky.) 492. . § 4. Yalidity. In treating of consideration, ante, 678, 674, art. 3, § 2, instances of an illegal consideration affecting the validity of bonds were given. Some general rules relating to the valid- ity of bonds will be appropriate in this connection. A bond to indemnify an officer against an unlawful act is void. Anderson v. Farns, 7 Blackf. (Ind.) 348. So, of a bond exacted by an officer, when he has no authoritj- to require it. Benedict V. Bray, 2 Cal. 251. And a bond given to obtain a discharge from an unlawful imprisonment is obtained by duress, and is void. Bowker v. Loioell, 49 Me. 429. See Katianagli v. Saun- ders, 8 id. 422. And generally', a bond is void which shows upon its face an illegal consideration. Greathouse v. Bunlajy, 3 McLean, 303. A bond for ease and favor is unlawful and void. But to constitute such bond it must be given to the officer who makes the arrest. Claasen v. SJiaio, 5 Watts (Penn.), 468 ; Baker v. Haley, 5 Me. 240 ; Claj? v. Co/ran, 7 Mass. 101. Bonds given for the loan of money to be used in purchasing a forge, at which iron was to be made for the Confederate government, of which fact the obligee was duly informed, have been held void. Logan v. Plummer, 70 X. C. 388. A bond to indemnify against an unlawful act or omission already past is not unlawful. Ginen v. Driggs, 1 Caines (N. Y.), 450 ; see GrifitTis v. Hardenberg, 41 N. Y. (2 Hand) 464. And where a bond was given to the father of a female, reciting that she had borne an illegitimate child to the obligor, who con* sented to marry her, and binding the obligor to treat her as a loving and affectionate husband ought, and not to maltreat, abuse or desert her ; it was held that the bond was not void as being against public policy. Wyant v. Leslier, 23 Penn. St. 338. And a bond not to sell intoxicating liquor within the limits of a town, or within a circuit of a mile around it, is not void as being in restraint of trade ; because the whole course ot legislation in regard to the sale of intoxicating liquors shows a 684 BONDS. settled policy of the State to discourage such traffic. Har risen V. Lookart, 25 Ind. 112 ; see Studabaker v. WTilte, 31 id. 211. So, a bond given for her support to a married woman by a per- son other than her husband cannot be considered invalid as subversive of good morals and tending to impair the obligations of the marriage covenant, when she had separated from her husband before the bond was given, and subsequently obtained a divorce, indicating that the separation was not her fault. Farnum v. Bartlett, 52 Me. 570. As it regards a statutory bond the rule is stated to be, that such bond is absolutely void only when the statute declares it void. Van Dusen v. Hayward, 17 Wend. 67 ; Ring v. Glbbs, 26 id. 502. It is not void merely because it does not in all respects conform to the statute under which it is taken. lb. See Cobb V. Co7nmo?iweaUh, 3 T. B. Monr. (Ky.) 391 ; Nunn v. Good- lett, 10 Ark. 89 ; Commissioner v. Way, 3 Ohio, 103 ; State v. Layton, 4 Harr. (Del.) 512 ; Amos v. Allnut, 10 Miss. 215 ; Tale V, inlanders, 4 Wis. 96. And the repeal of a statute has no effect upon the force or validity of a bond executed under it, and according to its requirements. Tucker v. Stokes, 11 id. 124. So, a bond required by statute may vary from the statutory requirements and still be a good common-law bond. Lane v. Kasey, 1 Mete. (Ky.) 410; State v. Thompson, 49 Mo. 188; Hester v. Keith, ] Ala. 316 ; Williams v. Shelby, 2 Oreg. 144. Thus, a bond given for the prison liberties, though not strictly conformable to statute provisions, may be good by the common law ; such bond not being for ease and favor. Burroughs v. Lowder, 8 Mass. 373 ; Winthrop v. Dockendorff, 3 Me. 240. By statute in Tennessee, a bond good at common law is a good statutory bond. State v. Clark, 1 Head (Tenn.), 369. A bond made payable to the "United States of America" would, it seems, be binding at common law; for the "United States of America" is a corporation endowed with the capacity to sue and be sued, to convey and receive property. Dixon v. United States, 1 Brock. 177. Where bonds are issued to bona fide holders for value, and, under the judicial decisions of the State, are valid at the time of issue, subsequent decisions in that State cannot invalidate them. City V. Samson, 9 Wall. 477. The rule in regard to bonds and other deeds void in part by common law, or by statute, is, that they are void as to such con« ditions, covenants, or grants as are illegal, and good as to aU BONDS. 685 others which are legal and unexceptionable. Preshury v Fisher, 18 Mo. 50 ; Whitted v. Governor, 6 Port, (xlla.) 335 ; United States v. Browiu Gilp. 155 ; Toion of Montgomery v. Plank-Road Co., 31 Ala. 76; Newman v. Newman, 1 Stark. 101 ; Yale V. Rex, 6 Bro. P. C. 31 ; see yost, art. 12, § 1. And when obligors acknowledge themselves to be severally indebted, the bond may be good as to part of them, and void as to the others. Dickey v. Sleejper, 13 Mass. 244. A bond, though void on the ground of usury, as a security for money, may be evidence of the amount of money advanced. Campbells v. Patterson, 11 Leigh (Ya.), 13. The rules as to the validity of a bond are thus briefly stated : Where the condition of a bond is originally impossible, the bond is absolute. Where the condition is originally illegal, the bond is void. Where the condition subsequently becomes im- possible by the act of the obligor, or of a stranger, the bond is forfeited. Where it becomes imjDossible by the act of God, or of the law, or of the obligee, the bond is saved. Beswick v. Swindells, 3 Ad. & El. 868 ; Anonymous 5 Nev. & M. 378. See Olioe V. Alittr, 14 Mo. 185 ; Blake v. Niles, 13 N. H. 459 ; Jloun- sey V. Drake, 10 Johns. 27 ; Baylies v. Ftttyplace, 7 Mass. 338 , United States v. MitcJiel, 3 Wash. 95 ; Bain v. Lyle, 68 Penn> St. 60 ; Green v. Smith, 4 Cold. (Tenn.) 436. § 5. Performance. As a general rule, when no place is men- tioned for the performance of a bond, it must be performed to the obligee in person. Currier v. Currier, 2 N. H. 75. But this rule has no application to the delivery of cumbersome arti- cles, nor to cases in which the nature of the contract indicates a particular place of performance. lb. If the condition of a bond be in the disjunctive, it may be discharged by performance of either of the enumerated acts, at the election of the obligor. An exception to the rule is, when the parties have saved the election to the obligee. United States v. Thompson, 1 Gall. (C. C.) 388. It is held no bar to an action on a bond for performance of covenants, that the condition has become impossible by the death of the obligor. A comjDensation in damages may be awarded to the obligee, and the damages may be ascertained by an issue at law. Miller v. NicJiols, 1 Bailey (S. C), 226 ; but see Badlam v. Tucker, 1 Pick. (Mass.) 287. So, it is no excuse for the non-performance of a condition in a bond to clear land within a stipulated time, that the land was overflowed. Sullivan t 686 BONDS. V. Jieardon, 5 Ark. 140. And a contract between the parties to a bond, tliat the acts requu-ed by the condition may be performed within a certain time beyond the time limited in the bond, and shall have the same effect as if performed within the time, is no excuse for non-performance of the condition, unless the contract is performed. Washburn v. Mosely, 22 Me. 160. § 6. Breacli. To entitle a party to recover the penalty of a bond given for the faithful performance of a covenant, a techni- cal infraction of its literal terms is not alone sufficient. It must be shown that some substantial right within the intent of the whole covenant has been infringed, or its purpose defeated. Sevitslcy v. Johnson, 35 Cal. 41. And to constitute a breach of a bond to " indemnify and save harmless from any loss or damage to which a party may be subjected," there must be actual loss and damage, and not a mere liability to loss. Aberdeen v. Blaclcmar, 6 Hill (TST. Y.), 324; Fayerweather v. Wlllet, 1 Edm. Sel. Gas. (N. Y.) 364; Rector, etc., of Ti'iniiy Church v. Higgins, 48 N. Y. (3 Sick.) 532, 537; see Tate v. Booe, 9 Ind. 13 ; Franks v. Hamilton, 29 Ga. 139 ; Tufts v. Hayes, 31 ]N^. H. 138. Owning- stock in, or being employed by a corporation in carry- ing on a manufacturing business, is a breach of the condition of a bond not to engage in that business within certain limits. Whitney v. Slayton, 40 Me. 224. So, a condition that the obli- gor shall pay all the just debts which the obligee "now owes," is broken by an omission to pay, at maturity, a note given by the obligee, although the holder of the note does not demand nor desire payment. Stewart v. Clark, 11 Aletc. (Mass.) 384. So, a bond conditioned to furnish to the obligee and his wife, all necessary meat, drink, lodging, washing, clothes, etc., dur- ing both and each of their natural lives, is an entire contract ; and a failure by the obligor to provide for the obligee and his wife according to the substance and spirit of the covenant, amounts to a total breach, and full and linal damages may be recovered, as well for the future as for the past Shaffer v. Lee, 8 Barb. 412 ; see Jenkins v. Stetson, 9 Allen (Alass.), 128. And where the importation of negroes was prohibited by statute, after a bond had been given to import and deliver a certain number of them, it was held, that although the bond could not lawfully be fullilled specifically, yet the obligor was liable for the value of the negroes, in money. Hose v. MacLeod, 2 Bay (S. C), 108. The condition of a certiorari bond is broken if the BONDS. 687 certiorari is dismissed for want of prosecution. Marry ott v. Young, 33 N. J. (Law) 336. The condition of a bond is not impossible if it may be per- formed by the aid of the obligee. If, therefore, the obligee neglect or refuse to act, in such case, the condition is saved. Pindar v. Uvton, 44 N. H. 3o8. . ARTICLE VI. EELEASE AND DISCHARGE. Section 1. In generaL An obligee may release one of two several obligors named in a bond, or cancel the bond as to one, by tearing off his seal, without the consent of the other ; for the reason that it does not increase the responsibility of the other obligor, or in any manner change the nature of his obligation. Maitheioson' s Case, 5 Co. 44 ; Burson v. Kincaid, 3 Penn. .^7 ; But if the name of one of two or more Joint obligors be stricken out or erased, or his seal be torn off from a bond by the consent of the ohligee and the other obligors, it shall cease to be the bond of him whose name is so stricken out or erased from it ; but it shall from that time be the bond of the others. lb. ; Rogers v. Hosaelt, 18 Wend. 319 ; see Speaker v. The United States, 9 Cranch, 28 ; Barrington v. The Bank of Washington, 14 Serg. & R. (Penn.) 424. So, a release by the obligee of a bond, of one of the sureties thereon, after he has paid his proportionate share of the sum due upon a breach thereof, does not discharge hia co-sureties. State v. Atherton, 40 Mo. 209. The sureties in a penal bond are not discharged by the bank- ruptcy of the principal obligor. Oarnett v. Roper, 10 Ala. 842. And although an obligee in a bond, on the receipt of part of his debt, discharge the principal from the custody of the sheriff when taken on a ca. sa., and discontinue a suit brought hj him against the principal, who had been arrested, yet the surety on the bond will not be thereby discharged. Laioson v. Snyder, 1 Md. 71. But the delivery by the obligee, to a third person, of a bond secured by a trust mortgage, upon the understanding that the third person is to deliver the bond to the obligor, and him- self assume the payment of the debt followed by a delivery of th»^ bond to the obligor by such third person, will, in the absence of fraud, operate as a cancellation of the bond, and a discharge of the trust. Piercy v. Piercy, 5 W. Va. 199. A mere agree- ment to cancel a bond, without an actual cancellation, will not, however, render it void. Barrett v. Barron, 13 N. H. 150. 688 BONDS. ARTICLE YII. NEGOTIABLE BOISTDS. Section I. What are. It is now settled by the current of American authorities that a coupon bond of a municipal, or a business corporation, is negotiable, and that its coupons are also negotiable, and may be detached and negotiated separately by simple delivery, and sued on separately from the bond, and this after the bond itself has been paid and satisiied, as well as before. White V. Vermont and Mass. R. R. Co.^ 21 How. 577 ; County of Beaver v. Armstrong, 44 Penn. St. 63 ; Thompson v. Lee County, 3 Wall. 327 ; Meyer v. Muscatine, 1 id. 384 ; Gelpecke v. Du- huque, id. 175 ; Murray v. Lardner, 2 id. 110 ; City v. Lamson, 9 id. 477 ; Blake v. Limngston Co., 61 Barb. 149 ; Langston v. S. C. R. R. Co., 2 S. C. 248 ; Craig v. City of Vicksburg, 31 Miss. 217 ; Clark v. City, 10 Wis. 140 ; Johnson v. County, 24 111. 92 ; Arents v. Com., 18 Gratt. (Va.) 750 ; Spooner v. Holmes, 102 Mass. 503 ; Nat. Exchange Bank v. Hartford, etc., R. R. Co., 8 R. I. 375 ; S. C, 5 Am. R. 582. But see Diamond v. Lawrence Co., 37 Penn. St. 358 ; Myers v. York & Cumberland R. R., 43 Me. 239. Such bonds were at first held non-negotiable by the courts, because they were sealed instruments. Subsequently they came to be acknowledged as negotiable instruments, and the holders of them were protected to the same extent as the holders of negotiable notes and bills under the law merchant. A little later, they came to be recognized as negotia- ble in as full and complete a manner as bank bills or the national currency of the country. And now, they stand not only equal before the law to the negotiable paper pertaining to the com- mercial business of the country, and to our circulating medium, but they are also, for their greater advantage, and for the pur- pose of causing them to be accepted as among the most desira ble investments for capital in the monetary centers of the world, regarded as chattels ; in so far as that character shall tend to relieve them from defenses and burdens incident to choses in action merely, and give to them a merchantable and vendible quality. Oriffitli v. Burden, 35 Iowa, 138. The later English chancery cases hold that such bonds are either promissory notes, or else analogous to the letter of credit. See hi re Lnpe- rial Land Co. of Marseilles, etc., L. R., 11 Eq. 478 ; In re General Estates Co., etc., L. R., 3 Oh. App. 758. Interest warrants or BONDS. 689 coupons, in a negotiable form, draw interest after the payment of them is unjustly neglected or refused. Mills v. Jefferson^ 20 Wis. 50 ; San Antonio v. Lane, 32 Tex. 405 ; Aurora City v. West, 7 Wall. 82 ; North Penna. R. R. v. Adams, 54 Penn. St. 94. § 2. Riglits of bona Me holder. The purchaser of a negotiable bond, for value advanced, in good faith, is unaffected by want of title in the vendor. And the burden of proof, on a question of such faith, lies on the party who assails the possession. Keeney V. Cliilis, 4 Greene (Iowa), 416 ; Murray v. Gardner, 2 Wall. 110; Carpenter v. Rommel, 5 Pliila. (Penn.) 34. Nor is the pur chaser of such a bond in open market, and in the usual course of business, bound to make a critical examination in order to escape the imputation of bad faith in the purchase. Welch v. Sage, 47 N. Y. (2 Sick.) 143 ; S. C, 7 Am. R. 423. Negligence even will not impair his title. lb. And see Seybel v. Nat. Cur- rency Bank, 54 N. Y. (9 Sick.) 288. A Tjona fide purchaser, without notice, of stolen negotiable bond? ^as a good title to them against the former owner. Car- penter V. Rommel, 5 Phila. (Penn.) 34. So the wrongful putting in circulation of the bonds of a foreign government, payable to bearer, and transferable by delivery by an agent of the obligors having them in custody, will not invalidate the title of a pur- chaser for value, and without notice. Leamtt v. Morgan, 7 Robt. (N. Y.) 350 ; S. C, 37 How. 264 ; 3 Abb. (N. S.) 469. ' And it was held, that an action for a conversion would not lie against one who had received, as agent, in good faith, and had sold stolen coupons of United States bonds, and who had turned over the proceeds to his principal. Spooner v. Holmes, 102 Mass. 503 ; S. C, 3 Am. R. 491 ; and see State v. Wells, 15 Cal. 336. Government bonds, payable to bearer, purchased after the date at which they are redeemable, are held to be taken subject to all equities. Texas v . White, 7 Wall. 700 ; S. C, 25 Tex. 465. ARTICLE VIII. OFFICIAL BONDS. Section 1. Construction and effect of. As it regards an official bond, it is held that if the statute prescribing the conditions of such bond enumerates particular duties, and also contains gen- eral WDids which include his whole duty, an obligor in a bond Vol. L— 87 600 BONDS. taken under such, statute is not discharged from such general obligation by an omission of such particular enumeration. The Justices y.Wynn^ Dudley (Ga.), 22. So an official bend cannot be restricted from operating according to its terms, by any parol evidence of conversation between the principal and sureties at the time of its execution, not known to the officer whose business it was to approve the., bond. McKee v. Commonwealth, 2 Grant's Cas. (Pa.) 23. A bond for faithful performance is to be construed, no less as to the surety than the principal, with reference to the situation of the parties, and the hazards against which the obligee exacted security. Rochester City Bank v. Elioood, 21 N. Y. (7 Smith) 88. Thus, a bond conditioned for the faithful discharge by one of the obligors of " the trust reposed in him as assistant book-keeper" of a bank, is an engagement that he will not avail himself of his position to misapply or embezzle the funds of his employer, and the appropriation by the book-keeper of the bank' s money, and making fraudulent entries to avoid detection, is a breach of the bond as against a surety therein. lb. But the sureties on the official bond of a coanty clerk are not liable for sheriff's fees collected by the clerk, and not paid over to the sheriff. Sitate v. Glvan, 45 Ind. 267. The obligor and his sureties in an official bond are estopped from denying the regularity ol the principal's election, or his official character. People v. Jenkins, 17 Cal. 500. § 2. Taliciity. A bond executed by a public officer and sure- ties, though not good as a statutory bond, may be binding as a voluntary obligation, and an action at common law may be maintained thereon. Goodrun v. Carroll, 2 Humph. (Tenn.) 500 ; Branch v. Elliot, 3 Dev. L. (N. C.) 86. And see Vanhook V. Barnett, 4 id. 268 ; State v. Bartlett, 30 Miss. 624. If the condition of an official bond substantially conforms to the requirements of the law, and imposes no additional obliga- tion, it will be deemed good as a statutory bond. Boring v. Williams, 17 Ala. 510. So, an excess in the penalty of an offi- cial bond is bad only as to the excess. JSP Caraher v. Common- wealth, 5 Watts & S. (Penn.) 21. See Polk v. Plummer, 2 Humph. (Tenn.) 500 ; Lee v. Waring, 3 Desau. (S. C.) 57. And such a bond, executed by the sureties only, and not by the 'prin- cipal, is valid against the sureties. State v. Bowman, 10 Ohio, 445. It is likewise held that the bond of a public officer is valid, notwithstanding the penalty is made payable to himself in another capacity. Marshall v. Hamilton, 41 Miss. 229. BONDS. 691 If new duties are imposed upon a public officer, b}' statute, after the execution of liis official bond b}^ his surety, the bond should be held good against the surety to the extent of the duties lawfully covered by it, though it may not be good as to the new duties imposed since its execution. Commonwealth v. Holmes^ 25 Gratt. (Ya.) 771. § 3. Rights and liabilities, under. Where an officer, who is elected annually, gives a bond for the faithful discharge of the duties of his office, he and his sureties are bound only for one year, although there is no time specified in the bond, and although the officer should be re-elected several years in succession. Bige- low V. Bridge, 8 Mass. 275 ; South Carolina Society v. Johnson, 1 McCord (S. C), 41. But where the law provides that an officer shall hold until his successor is qualified, his bond covers his acts so long as he holds. Thompson v. State, 37 Miss. 518. And the obligors in a bond given to the directors of a company, who are chosen annually, for the fidelity of an agent of the com- pany, are liable after the year has expired ; and the obligees, though out of office, may maintain an action on the bond. Anderson v. Longden, 1 Wheat. 85. The person who first sues and obtains judgment on an official bond is entitled to the whole penalty, if his demand amount to so much, in exclusion of other claimants. Christman v. Com- monioeiUh, 17 Serg. & R. (Penn.) 381. See Glidewell v. M'Gaughey, 2 Blackf. (Ind.) 357. And this rule holds, although the party who first sues is prevented from obtaining judgment, b}^ a stay of proceedings, on the defendant's paying into court the penalty of the bond. McKean v. Shannon^ 1 Binn. (Penn.) 370. § 4. Breach. Generally, a bond conditioned faithfully to exe- cute the duties of an office is broken only by gross negligence. An honest error in judgment, or want of skill, will not amount to a breach. Common Council of Alexandria v. Corse, 2 Cranch (C. C), 363. But see Minor v. Mechanics'' BanJc of Alexandria, 1 Pet. (U. S.) 46, 69. § 5. Discharge. As it regards their liability on a bond, there is no distinction between principal and surety ; and the same act, or neglect, which charges the former must also charge the latter. Seaver V. Young, 16 Vt. 658. See State v. BtaJcemore, 7 Heisk (Tenn.) 638 ; Charles v. HosJcins, 14 Iowa, 471. But the sureties on an official bond are responsible only for acts of the officer subsequent to the time when the bond is given. Jeffers v. John- 692 BONDS. son, 18 N. J. L. (3 Harr.) 382 ; Myers v. Unitbd States, 1 McLean, 493. And they can be held for no more than the amount of the penalty of the bond. State v. BlaJcemore, 7 Heisk. (Tenn.) 638. So, where the appointment of the officer is annual, a surety la not liable for his defaults arising after the year, although the officer continues such by law until his successor is appointed. TTie Mayor v. Horn, 2 Harr. (Del.j 190. He is liable, however, for the neglect of his principal to pay over moneys which came into his hands before the surety executed the bond, and which were still there at the time of sucli execution. State v. Van Pelt, 1 Ind. 304. A discharge of one surety discharges his co-sureties, in tlie absence of a statute to the contrary, as it takes away their right of contribution ; and a statute to the contrary, being in deroga- tion of the common law, is to be strictly construed. People v. Buster, 11 Cal. 215. But an official bond, being given for official good conduct, is not discharged by a faithful accounting for moneys to the amount of the penalty ; it stands good as a security for losses and defalcations to that amount. Potter v, Titcornb, 7 Me. 302, 319. The cancellation of an official bond b}^ an unauthorized officer is no evidence of satisfaction. Ford v. Jefferson, 4 Greene (Iowa), 273. § 5. Of United States officers. The United States have, in their political capacity, a right to enter into a contract, or to take a bond in cases not previously provided for by some law. Thus, a bond voluntarily given by a collecting or disbursing officer and his sureties, to the United States, through the proper department, to secure the faithful performance of his duties, is a valid contract, though the taking of such a bond may not be prescribed by any act of congress. Postmaster -General v. Rice, Gilp. 554 ; United States V. Tingey, 5 Pet. 115. So the postmaster-general has author- ity to take bonds of his deputies conditioned for faithful per- formance of their duties, and to pay all moneys that shall come to their hands for postage, etc. Postmaster-General v. Early, 12 Wheat. 136. But no officer of the government has the right to require from any subordinate officer, as a condition for his hold- ing office, that he should execute a bond with a condition differ- ent from that prescribed by law ; and a bond thus obtained is illegal and void. United States v. Tingey, 5 Pet. 115. A bond given by a postmaster, with sureties, for the perform- ance of his official duties, is not binding until it is approved and BONDS. 69B accepted by the postmaster-general. Postmaster -General v. Nor- mil, Gilp. 121. A civil officer has a right to resign his office at any time, and, after his resignation has been received by the proper department, his surety is not bound for his faithful performance of the duties of the office. United States v. Wright, 1 McLean, 509. Though, if the resignation, in its terms, is not to take effect until a suc- cessor shall be appointed, the effect may not be to relieve the surety. lb. § 6. Of sheriffs, constables, etc. The bonds of sheriffs, con- stables, tax collectors, and various other officers, are regulated by statute in the several States. The statute law of the particu- lar State should, therefore, be consulted on the subject, in con- nection with the judicial decisions giving construction thereto. ARTICLE IX. IXDEMXITY BONDS. Section 1 . In generaL See ante, 686, art. 5, § 6. An obligee in an indemnity bond, upon being damnified, has an immediate right to be re-imbursed, Clialloner v. Walker, 1 Burr. .574 ; see RocTifeller v. Donnelly, 8 Cow. 639 ; Jones v. Cooper, 2 Aik. (Vt.; 54 ; Ramsay v. Geroais, 2 Bay (S. C), 145. One who agrees to indemnify and save others harmless against a certain engage- ment is bound to secure them from incurring any expense, as it runs on at the time, which falls upon them by virtue of that engagement. Sparks v. Martindale, 8 East, 593. And it is held that a principal upon a bond conditioned for the indemnity of the obligee against the payment of money is liable at the common law beyond the penalty of the bond, where the excess consists of interest accrued after the breach of the condition. Lyon v. Hall, i'e. D. Smith (N. Y.), 250 ; S. C. affirmed, 8 N. Y. (4 Seld.) 148. So, under a bond to save harmless, a judgment against the obligee fixes the obligor' s liability, and the obligee may pay it without waiting for execution. Creamer v. Stephensort, 15 Md. 211; Jones v. CMlds, 8 Nev. 121 ; see Tate v. Booe, 9 Ind. 13; Given v. Briggs, 1 Caines, 450. It has been held that no greater sum than that mentioned as a penalty in a bond given upon the issuing of an inj unction can be recovered in an action, or in pro- ceedings on motion against the sureties. Homy v. The Ruhhet Tip Pencil Co., 6 Jones & Sp. (N. Y.) 428. 694 BONDS. ARTICLE X. BOITDS IlSr PAETICULAR CASES. Section 1. To pay money. Where a bond is conditioned for the payment of money to the obligee, no time being specified, the obligor is immediately liable. So, where a bond is payable, by express terms, on demand, it is payable on the day of its date. Austin v. Burhaiik^ 2 Day (Conn.), 474 ; Hu^ v. Bull, 7 Harr. & J. (Md.) 14. But, it is held that where a bond is condi- tioned for the payment of certain notes in the hands of a third person, the obligor cannot be sued immediately, but is entitled to a reasonable time to perform the condition. Hart v. Bidl, Kirby (Conn.), 396. The condition of a bond, given for the payment of money on or before a certain day, is saved by payment before action brought, though not within the time. Bond v. Cutler, 10 Mass. 421 ; Gage v. Gannett, 11 id. 218. But where interest is expressly secured by the bond, acceptance of the principal only, after the time, will not save the forfeiture of the penalty. lb. So, the obligor of a bond for the payment of money lent, at or on a certain day specified, with interest to be paid in the meantime at stated periods, cannot, by tendering the principal before the day stated for its payment, stop the interest. Ellis v. Craig, 7 Johns. Ch. 7. In an action upon a bond conditioned to purchase real estate, if the terms of the contract show that payment of money is to be made before the deed is given, and no money is paid or oflTered at the time fixed, a tender of a deed is not necessary before the obligee can maintain his action. Robinson v. Heard, 15 Me. 296. § 2. To perform services, etc. Where a bond is executed with a condition that it shall become absolute in case certain services are performed by the obligee within a specified time, and the obligee tenders performance of the services within the time, the refusal of the obligor to accept such performance will have the effect of actual performance, so far as to give the obligee a right of action upon the bond. Boardman v. Keeler, 21 Vt. 77. Upon a bond conditioned to deliver corn by a certain day, tender on the day prevents the accrual of interest, but does not dis- charge the obligation. SmitJt v. Stinson, 1 Brev. (S. C) 1. A gave a bond to B conditioned that the obligor should well BONDS. 695 and sufficiently keep and maintain tlie obligee at the house of the former, with meat, drink, clothes and all other things neces- sary and convenient. B left A's house, without sufficient cause, and brought an action on the bond ; it was held, that B' s right to necessaries, under the bond, depended on her living at A' a house, and that the action could not be maintained. Haicley v. Morton, 28 Barb. 255. See Howe v. Howe, 10 N. H. 88. So, under a bond conditioned for the support and maintenance of the obligee and his lunatic son, during life, and to furnish them with good and sufficient nursing and medical attendance, wash- ing and lodging, both in sickness and in health, the obligor was held only bound to maintain and support the obligee and his son, at his own dwelling-house, provided it could there be done in a suitable manner, which would be presumed. And after the decease of the obligor, the family residence, so long as it is maintained, was held the proper j^lace of support. McKillip v. McKillip, 8 Barb. 552. See further illustrations, Daniels v. Bowe, 25 Iowa, 403 ; Luques v. TJiompson, 26 Me. 514 ; Bacon V. Lane, 21 Pick. (Mass.) 130 ; Bur'kholder v. PlanJc, 69 Penn. St. 225. In an action ujDon a bond of indemnity against sup- port, funeral expenses cannot be recovered. Turner v. Hadden^ 62 Barb. 480. ARTICLE XL ACTION UPOX BOXDS. Section 1. Jurisdiction, etc. In debt on a bond, the penalty of the bond, and not the damages laid, or amount recovered, gives jurisdiction to the court. Sims v. Harris, 8 B. Monr. (Ky.) 56 ; State v. Rousseau, 71 N. C. 194. Therefore, where the pen- alty exceeds 8200, a justice of the peace has not jurisdiction in North Carolina. lb. Suit upon a bond given in an action of detinue, by the plaintiff in the original suit, must be brought in the same court in which the original suit was brought. McDer- mott V. Doyle, 11 Mo. 443. In New York it is held, that where bonds and coupons are made payable in that State, the cause of action arises there, and a court of the State has jurisdiction, though both parties are foreign corporations. Connecticut Mut, Life Ins. Co. v. Cleveland, etc., B. B. Co., 26 How. (N. Y.) 225; S. C, 41 Barb. 9. AVhere covenants are secured by a penalty, the obligee may sue, at common law, in debt for the penalty, or bring an action 696 BONDS. on the covenants. In covenant, he may recover as often as the breach arises, and even beyond the penalty. But having elected to proceed in debt on the penalty, he cannot then go on the cov- enant. New Holland Tump. Co. v. Lancaster County, 71 Penn. St. 442; Perlcins v. Lyman., 11 Mass. 83; McLaughlin v. Huichins, 3 Ark. 207; Martin v. Taylor, 1 Wash. 1. § 2. When an action lies. The right of action upon a bond of indemnity against "liability" is complete when the obligee becomes legally liable for damages. Bancroft v. Winspear, 44 Barb. 209 ; Cliace v. Hinnian, 8 Wend. 452. As for example, by a judgment, though no actual damage is shown. Jones v. CMlds, 8 Nev. 121. See ante, 693, art. 9, § 1. Action may be brought on a bond for . a sum payable on demand, without demand. Husbands v. Vincent, 5 Harr. (Del.) 268 ; Omoliundro V. Omohundro, 21 Gratt. (Ya.) 626. And a bond payable "with interest from date, the interest to be paid annually,"' is due and payable from date, and no demand need be made before suit brought. The interest, in such case, becoming due at the end of each year, is not barred by any statute of limitation which does not bar a suit on the bond itself. Knight v. Bradswell, 70 N. C. 709. And when the obligor in a bond for the conveyance of land has conveyed the land to a third person by a deed of war- ranty made " subject to the incumbrance created by the bond," no demand for a conveyance need be made on the obligor prior to the commencement of an action upon the bond. McCarthy v. Mansfield, 66 Me. 538. In Pennsylvania, an action may be maintained against the sureties of a public officer immediately on the settlement of his account. Speek v. Commonwealth, 3 Watts & Serg. (Penn.) 324. And see Governor v. MatlocTt, 1 Dev. L. (N. C.) 214. An action may be maintained on a bond payable on a day cer- tain, at a place named, without allegation or proof of demand of payment at the time and place mentioned. Langston v. South Carolina E. R. Co., 2 S. C. 248 ; Truman v. McCollum, 20 Wis. 360. So, where a penal bond becomes payable upon a breach of the condition, and the principal obligor is the party by whom the condition is to be performed, such principal obli- gor must have knowledge of the breach, if one exists, and no notice or request is necessary to fix his liability. The co-obli- gors of the principal upon such a bond stand as sureties only between themselves and the principal ; but as to the obligee of the bond, they are liable in all respects as principals, and are BONDS. 697 entitled to no notice or request to which tne principal is not entitled. Bulkley v. Finch, 37 Conn. 71. The maker of a bond has the whole day on which it falls due in which to pay it, cannot be sued upon it until the next day. Zachery v. Brown, 17 Ark. 442. § 3. Upon wliat state of facts. The condition of a bond was, that a holder should not prosecute the sureties till he had ex- hausted all legal remedies against the principal. Suit was brought in the first instance against the sureties, and it was held not to violate the condition, the principal being totally insolvent. Heralson v. Mason, 53 Mo. 211. In an action upon a penal bond the judgment, in form, is for the penalty ; and it is held, that the right to this judgment is not alEfected b}- the assignment by the plaintiff of a breach of the condition of the bond, as one of the facts constituting his cause of action, as such assignment of a breach should be made. Western Bank v. SJierioood, 29 Barb. 383. See Howard v. Farley, 18 Abb. (N. Y.) 260. Where a penal bond is given to secure the performance of cer- tain work, and the condition of the bond is broken, and a suit is brought on the bond for indemnity, it is sufficient to sustain the action, that there had been a breach of the condition at the time the suit was commenced ; and such damages may be included in the assessment as the obligee has been subjected to by the breach of the condition of the bond, although they may have accrued after the suit was commenced. Spear v. Stacy, 26 Yt. 61. If the obligees in a bond conditioned for their support volun- tarily cease to receive such support during six years, no action can be maintained upon such bond until after demand fur, and refusal to afford, such support. Stichney v. Stlckney, 1 Fost. (K H.) 61. Where a money bond is made paj^able in installments at difl'er- ent times, debt will lie thereon after all the installments have become due, but not to recover the amount of one installment. State V. Scoggin, 5 Eng. (Ark.) 326. Where all the installments have not become paj^able, the remedy is by action for breach of the covenant. lb. But where more than one installment has become due, separate actions will not lie to recover each. lb. See Hopkins v. Beaves, 2 Browne (Penn.), 93 ; Black v. Car- uthers, 6 Humph. (Tenn.) 87 ; Warwick v. Matlock, 7 N. J. L. 200. It is held, that the obligee, in a bond to indemnify him for having given a receipt to an officer, for goods attached, is dam- nified by an attachm^ent of his property in a suit on his receipt Vol. L — 88 698 BONDS. and may tliereupon bring an action on liis bond. Otis v. Blake^ 6 Mass 336. And see Murrell v. Johnson, 1 Hen. & M. (Ya.) 450 ; Kip V. Brigham, 7 Johns. 168. Where the condition of a bond was, that the defendant should carry on the business of distilling cider brandy for seven years and three months, and keep an exact account of the quantity distilled, and deliver to the plaintiff, when demanded, one-tenth part thereof, and the defendant did carry on such business, but kept no account and delivered nothing to the plaintiff ; it was held, that the latter could have no action on the bond until the end of the specified term. Qottle v. Payne, 3 Day (Conn.), 289. When a bond or other contract has been surrendered or satis- fied by reason of mistake or fraud, it may be treated as a valid and subsisting instrument. But where the only error apparent was that the plaintiff, through his own neglect, inattention, or ig- norance, allowed a settlement to be made, and his bond to be discharged by his attorney, without claiming a full performance of its conditions, no suit can be maintained on the bond. Chap- man V. Lothrop, 39 Me. 431. By the common law, a bond may be good, and may be enforced by suit, although the obligee has no beneficial interest in it. Hoxie V. Weston, 19 Me. 322. In a recent case in North Carolina, it is held that no action can be sustained upon a bond payable after the ratification of a treaty of peace between the United States and the Confederate States. This is the language of the Confederate treasury notes ; and the plain and universally understood meaning of those notes was, that if the Confederate States obtained independence, then their notes would be paid, otherwise not. When the parties to the bond adopted the language of the Confederate treasury notes, they adopted their well-understood meaning ; and as there has been no treaty, and no ratification, and as peace exists, but not by ratification of a treaty, jior yet by the independence of the Confederate States, the condition precedent has not been per- formed, and never can be. McNinch v. Ramsey, 66 N. C. 229. See Oarlington v. Priest, 13 Fla. 559. But a bond, executed in 1864, conditioned for the delivery of Confederate bonds, the con sideration being Confederate treasury notes loaned to the maker of the bond, was held not illegal and void ; and that a recovery might be had thereon for its value in United States currency to be estimated according to the scale prescribed by law. Haughton y. Merony, Gr^ N. C. 124 ; and see Thorington v. Smith, 8 Wail. 1. BONDS. 699 ARTICLE XII. DEFENSE TO ACTIOX OX BOXD. Section 1. Grounds of, in general. It is a general rule, that an obligor may avoid a bond, by showing that it was obtained by fraud or duress, or that the consideration is illegal or against the policy of the law. Page v. Trufant, 2 Mass. 159. Numerous illustrations of this rule are given, ante, 673, 683, art. 3, § 2 ; art. 5, § 4. It was stated in an English case, that since the decision in Pole V. Harroblii, reported 9 East, 416, n., it has been generally understood that an obligor is not restrained from pleading any matter which shows that the bond was given upon an illegal con- sideration, whether consistent or not with the condition of the bond. Paxton v. PopJiam, 9 East, 408, 421. And see Oremlle v. Atkins, 9 Barn. & C. 462. But the illegality must, as a matter of substance, be made to appear clearly and with certainty upon the face of the plea. Royal British Bank v. Turquand^ 5 El. & Bl. 2i3 ; mil V. 31. & S. Water- Works Co., 2 B. & Ad. 552 ; 1 Smith's Lead. Cas. 499. xls if the statute of 9 Anne, cap. 14, against gaming, be pleaded to a bond, the plea must show at what game the money was lost. Colborne v. Stockdale, 1 Strange, 493. The illegality pleadable in defense to an action upon a bond may be such as exists at common law, or it may arise from a statutory enactment. In addition to the illustrations of the first kind given in preceding articles, may be mentioned the case of a bond by wdiich each of the parties binds himself not to work or employ others to work for him, except at certain rates prescribed by the terms of the bond. Such a bond, being in restraint of trade, is void. Hilton v. Eckersley, 6 El. & Bl. 47 ; S. C. affirmed. id. QQ. So, covenants in a separation deed that the husband shall part with the control over his children, are void at common law, on the ground of public policy. People v. Mercein, 3 Hill (N. Y.), 399 ; 8 Paige, 47; Vansittart v. Vansittart, 2 De G. & J. 249. And where a bond was to secure nioney agreed to be given for the discharge of a person unlawfully impressed, it was held void. Pole V. HarroMn, 9 East, 416, n. Illegality created by statute is no less fatal to the validity of a bond. Bank of United States v. Ovoens, 2 Pet. 527, 539 ; Bar- ton V. Port Jackson Plankroad Co., 17 Barb. 397. Nor is it neces- sary that the statute should contain words of positive prohibi- 700 BONDS. tion. lb. The principle is stated to be that every contract made for or about any matter or thing which is prohibited and made unlawful by statute, is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words in the statute. Begins v. Armistead^ 10 Bing. 110. And see Coburn v. Odell, 10 Fost. (N. H.) 540 ; Elklns V. Parkhurst, 17 Yt. 105 ; Stanly v. Nelson^ 28 Ala. 514. It was held in some of the earlier English cases that where there are several conditions to a bond, and any one of them is void by statute, the whole bond is void. Norton v. Syms, Hob. 14; S. C, Moore, 856 ; Lee v. Colslilll, Cro. Eliz. 599 ; Newman v. Newman, 4 M. & S. 68. But this rule must be now understood to apply only to cases where the statute enacts that all instru- ments containing any matter contrary thereto, shall be void ; otherwise, the common-law rule will apply, and that part only will be void which contravenes the provisions of the statute. Gaskell v. King, 11 East, 165; How v. Synge, 15 id. 440 ; Tundt V. Roberts, 5 Serg. & R. (Penn.) 139 ; 1 Sm. Lead. Cas. 502 ; ante, 683, art. 5, § 4. If a bond be given to compound a felony, it is a good defense in an action on the bond. Steuben County Bank v. Matheioson, 5 Hill (N. Y.), 249 ; Collins v. Blantern, 2 Wils. 357. See also Bowen v. Buck, 28 Yt. 308 ; Shaw v. Reed, 30 Me. 105 ; Fay v. Oatley, 6 Wis. 42 ; Osbaldiston v. Simpson, 13 Sim. 513. So, it is a good defense in an action upon a ne exeat bond, that the defendant has paid the costs, and that the writ issued upon good cause. Coombs v. Newton, 4 Blackf. (Ind.) 120. And the plaintiff" 's non-performance of a condition precedent may be pleaded in bar of an action on a bond. Fatter son v. Salmon, 3 id. 131. The surety on a bond is entitled to set up any legal or equita- ble defense which would have availed his principal, such as a set-off", counter-claim, etc. And he may introduce any evidence tending to show such defense. Jarratt v. Martin, 70 N. C. 459. § 2. Denying execution. The defendant, in an action upon a bond executed by him, cannot plead matter contradictory to the bond. Miller v. Elliott, 1 Ind. 484. And a plea that the bond declared on was executed under a mistaken impression of its legal effect, made on the defendant's mind by the plaintiff, is bad. lb. So, on non est factum pleaded, the defendant cannot show that the bond signed was represented to be of a different BONDS. 70j amount. Evans v. Hudson, 5 Harr. (Del.) 366. He shonld plead per fraudem. lb. See Doit v. Munsell, 13 Johns. 430. But where a party appears to have executed a bond with another as surety, but whose name has been forged, he will not be liable. Seely v. People, 27 111. 173. § 3 Impeaching consideration. The rule of the common law- is, that in an action on a bond, conditioned for the payment of a certain and ascertained sum of money within a specified time, it is not competent for the obligors to go behind the bond for the purpose of showing what was its consideration, or that the con- sideration has failed. Dorian v. Sammis, 2 Johns, lid, note; Dorr V. Munsell, 13 id. 430 ; Baies v. Hinton, 4 Mo. 78 ; Van Yalkenhurgli v. Smith, 60 Me. 97 ; Harris v. Harris, 23 Gratt. (Ya.) 737; Gray v. Barton, 55 N. Y. (10 Sick.) 68, 71. The only answer that can be made to it is non est factum, payment, or release. MltcJiell v. Williamson. 6 Md. 210. But this rule is not recognized in South Carolina. See Thompson v. McCord, 2 Bay (S. C), 76. And under the laws of California, a sealed instrn- ment, prima facie, imports a consideration, subject, however, to rebuttal. McCarty v. Beach, 10 Cal. 461. So, in a number of the States as New York, Ohio, Tennessee, Indiana, Kentucky. Missouri, etc., the impeachment of the consideration of a bond is allowed by statute, and a failure of consideration may be pleaded in bar to a recovery on a bond. See Case v. Boughton, 11 Wend. 106 ; Cramr v. Wilson, 4 Abb. Ct. App. (N. Y.) 374 : Peebles v. Stevens, 1 Bibb (Ky.), 500 ; FkicTc v. Cunningha.m, 8 Blackf. (Ind.) 131 ; Smith v. Bushy, 15 Mo. 387 ; Greathouse v. Dunlap, 3 McLean, 303 ; Tenn. Code, § 1806. In North Carolina it is held, that no consideration, or a failure of consideration, is no defense to a bond against an assignee for value and without notice of any claim of the defendant, as maker. Parker v. Flora, 63 N. C. 474. So, in an action on a bond, mere inadequacy of consideration is no defense, in the absence of fraud or imposition ; nor, in such case, is it an objec- tion in an action for specific performance. So, held, in an action on a bond given for the price of a mule, which had a latent dis- ease, of which it died within a week of the sale, without having rendered any service of value. Winsloio v. Wood, 70 id. 430. § 4. Averment of fraud. See ante, 676, art. 4, § 1. At common law, fraud could not be pleaded, or given in evidence as a defense to an action on a specialty, unless the execution of the instru- ment was vitiated. An obligor might, therefore, avoid his bond 702 BONDS. by showing that it was misread, or its purport falsel}^ declared at the time of its execution. Dorr v. Munsell, 13 Jolms. 430 ; Anthony v. Wilson^ 14 Pick. (Mass.) 303 ; Schuylkill County y. Copley, 67 Penn. St. 386 ; S. C, 5 Am. R. 441. But ]ie could not show that he had been induced to execute it, by fraudulent rep- resentations as to the nature or value of the consideration on which the bond was founded. Dale v. RooseDelt, 9 Cow. 309 ; Stevens v. Judson, 4 Wend. 471 ; Baur v. Roth, 4 Rawle (Penn.), 83 ; Donaldson v. Benton, 4 Dev. & Bat. (N. C.) 435 ; Hudson V. Williams, 3 Blackf. (Ind.) 170 ; Wyche v. Mack- lin, 2 Rand. (Va.) 426. This distinction is, however, dis- regarded in some of the States. See Bliss v. Thompson, 4 Mass. 492 ; Hazard v. Irwin, 18 Pick. (Mass.) 95 ; Hoitt v. Holcomb, 3 Post. (N. H.) 535 ; Phillips v. Potter, 7 R. I. 289 ; Tomlinson v. Mason, 6 Rand. (Va.) 169 ; Hartshorn v. Day, 19 How. (U. S.) 211, 222. While in other of the States, it has been abolished by statute. See Case v. Boughton, 11 Wend. (N. Y.) 106 ; War- ing V. Cheesehorough, 1 Hill (S. C), 187; Swift v. Hawkins, 1 Dall. (Pa.) 17 ; Huston v. Williams, 3 Blackf. (Ind.) 171. And deceit or artifice practiced by one party for the purpose of mis- leading the other, with regard to the nature or value of the con- sideration, or any other material fact or circumstance, may be given in evidence as a defense to an action on a specialty at law, with the same effect as if the contract were by parol. Boynton V. Huhhard, 7 Mass. 492 ; Somes v. Skinner, 16 id. 348. To avoid a bond on the ground that it was fraudulently ob tained, it should appear that the obligee had an agency in the alleged fraud. Jenners v. Howard, 6 Blackf. (Ind.) 240. But if the obligor knew of the fraud, before he executed the bond, he can- not impeach it on that ground. Higgs v. Smith, 3 A. K. Marsh. (Ky.) 338. Where the obligee either personally or through hig agent procures a party to act as surety for the obligor through fraudulent representation, the bond will be held void as to such surety. Gasconade County v. Sanders, 49 Mo. 192. If a party seeks to relieve himself from the obligation of his bond, on the ground of actual fraud or misrepresentation, he must establish that there was a false representation of a matter of substance, important to his interests, and which actually mis- led him to his hurt. Fulton v. Hood, 34 Penn. St. 365. And a false affirmation of a matter resting in opinion, or even of a fact equally open to the knowledge or inquiry of both parties, is not available for such purpose. lb. See Ma.son v. Ditchhourne, \ BONDS. 703 M. & Rob. 460 ; Stone v. Compton, 5 Bing. N. C. 145 ; Graves v. TucTcer, 10 Sm. & M. (Miss.) 21. A distinction is made between a defense resting upon facts which are misstated, in order to induce a party to enter into a bond, the contents of which lie knows ; and one resting on a misrepresentation of the contents of the instrument itself to an illiterate person. In the former case the bond is the obligation of the party who seals it, although it is invalidated by the fraud ; in the latter, it is not his deed or bond at all. Greene v. North Buffalo TownsMp, 56 Penn. St. 110 ; Scliicylkill County v. Cop- ley, 67 id. 386 ; S. C, 5 Am. R. 441 ; see ante, 673, 676, art. 3, § 2 ; art. 4, § 1. § 5. Performance of condition. See ante, 680, 694, art. 5,%5 \ art. 10, § 2. If the condition of a bond be to pay 5()Z. though it is not said of money, yet it must be so intended, and the obligee cannot tender fifty pounds weight of stone. Sid. 151. And the condition of a bond being "to render a fair, just and perfect account, in writing, of all sums received," if the obligor neglect to pay over such sums, it is a breach of the condition. Bache v. Proctor, 1 Doug. 382. But a conveyance of a lot by name, " as said to contain 600 acres, be the same more or less," was held to be a performance of the condition of a bond to convey that lot "containing 600" acres, though the lot fell short 125 acres. Mann v. Pearson, 2 Johns. (N. Y.) 37. See Jackson v. Befendorf, 1 Gaines (N. Y.), 493. In an action upon a bond conditioned that the obligor and his wife should arrange their present difficulty and live together as husband and wife, it was held not a sufficient answer to the action, for the obligor to show that he had mad« overtures for a reconciliation, which were not successful. Axtell V. Caldwell, 24 Penn. St. 88. As to what will excuse the non-performance of a condition, it may be stated generally, that if a bond or other obligation be upon a condition possible at the time it was made and which afterward became impossible to perform, by the act of God, or of the law, or of the obligee, the condition is saved. Green v. Smith, 4 Cold. (Tenn.) 436 ; People v. Bartlett, 3 Hill, 570 ; Bain V. Lyle, 68 Penn. St. 60; People v. Tuhbs, 37 N. Y. (10 Tiff.) 586, 588 ; Carpenter v. Stevens, 12 Wend. 589 ; Co. Litt. 206 a. But see Steele v. BucJc, 61 111. 343; S. C, 14 Am. R. 60. If a condition consists of two parts, of which one was not possible, at the making of the condition, to be performed, the obligor ought, nevertheless, to perform the other. Wigley v. Blacl'wal 704 BO^-DS. Cro. Eliz. 780; Da Costa v. Davis, 1 Bos. & Pul. 242. But li<* who prevents the performance of a condition cannot take advan tage of its breach or non-performance. Blandford v. Andrews, Cro. Eliz. 694 ; Franklin Fire Ins. Co. v. Hamill, 5 Md. 170 ; Carrel v. Collins, 2 Bibb (Ky.), 429. Thus, if the precedent act is to be performed at a certain time or place, and a strict perform- ance of it is prevented by the absence of the party who has a right to claim it, the law will not permit him to set up the non- performance of the condition as a bar to the responsibility which his part of the contract had imposed upon him. Williams v. Banlc of tJie United States, 2 Pet. 96, 102. See ante, 694, art. 10, § 2. § 6. Discharge by payment, etc. See ante, 694, art. 10, § 1. In general, the lapse of twenty years after a right of action has accrued on a bond is presumptive evidence that such obligation has been discharged. Jackson v. Hotclikiss. 6 Cow. 401 ; Lyon V. Adde, 63 Barb. 89 ; Central Banlc of Troy v. Heydorn, 48 N. Y. (3 Sick.) 260 ; McDowell v. McCullougJi, 17 Serg. & K. (Penn.) 51 ; Barnett v. Emerson, 6 T. B. Monr. (Ky.) 607. The presump- tion arising from lapse of time may, however, be repelled by cir- cumstances explaining satisfactorily why an earlier demand has not been made. Bailey v. Jackson, 16 Johns. 210 ; as for exam- ple, the continued absence of the creditor. lb. ; or the jDermanent absence of the debtor. Shields v. Pr ingle, 2 Bibb (Ky.), 387- or the debtor's insolvency. Levy v. Hampton, 1 McCord (S. C), 145 ; Boardman v. De Forest, 5 Conn. 1 ; or inability to pay. Blackett v. Wall, 3 Mann. & Ryl. 119 ; Daggett v. Tallman, 8 Conn. 168; or the near relationship of the parties. Hillary v. Waller, 12 Yes. 239, 266. So, the presumption may be rebutted by proof of an admission within twenty years that the debt is due and unpaid. Cottle v. Payne, 3 Day (Conn.), 289 ; Lyon v. Adde, 63 Barb. 89 ; or by proof of payment of ihterest, which is equivalent to an admission. McDowell v. McCullough, 17 Serg. & R. 51. And the indorsement by the obligee on the obligation of a credit for interest, while the obligation was in full force, and before the presumption attached. Posehoom v. Billington, 17 Johns. 182 ; and the indorsement in the handwriting of the obligor, are good evidence to rebut the presumption, whether made before or aftei- the presumption arose. Boltz v. Bullman, 1 Yeates (Penn.), 584 ; McLean v. Mc Dug aid. 8 Jones' L. (N. C.) 383. See Houliston v. Smyth, 2 C. & P. 22; Livingston v. Arnoux, 56 N. Y. (11 Sick.) 519 ; Grantham v. Canaan, 38 N. BONDS. 705 H. 268 ; Searle v. Lord Barrington, 2 Strange, 826 ; S. C, 8 Mod. 279 ; liose v. Bryant^ 2 Camp. 321. Tlie presumption of payment after twenty years ma}^, likewise, be repelled by evi- dence that the obligor had no opportunity or means of paying. Fladong v. Winter, 19 Yes. 196. Where the obligation of a bond is absolved by a rescission of the contract of which it was evidence, an action on the bond may be defended at law. Moore v. Dial, 3 Stew. (Ala ) 157. So, a written engagement, by the obligee, not to call on the obligor for mone}^ and goods made payable yearly, unless he shall need them for his support, may be pleaded in bar of a suit on the bond. Filer v. Bissel, 2 Root (Conn.), 347. And if a bond is paid by a third person, at the request of the obligor, a suit cannot afterward be maintained upon it in the name of the obligee, for the use of the person by whom the payment was made. Simmons v. WalJcer, 18 Ala. 664. The delivery by the obligee, to a third person, of a bond secured by a trust mortgage, upon the understanding that the third person is to deliver the bond to the obligor, and himself assume the payment of the debt, followed by a delivery of the bond to the obligor by such third person, will, in the absence of fraud, operate a cancellation of the bond and a discharge of the trust. Piercy v Piercy, 5 W. Va. 199. The emancipation of slaves was held to discharge the next of kin from a refunding bond given by them to the administrator. Hinton v. WMtehurst, 68 N. C. 316. See Henderlite v. Tliurman^ 22 Graft. (Va.) 466. ARTICLE XIII. REilEDT ON LOST BOND. Section 1. In general. Formerly, a court of common law afibrded no remedy on a lost bond, for the reason that there could be no profert of the instrument, without which the declara- tion would be fatally defective. But profert has been dispensed with, and courts of law now entertain jurisdiction upon an allegation of loss, by time and accident, stated in the declara- tion. See Co. Lift. 35 &. ,' Franceschi v. Marino, 3 Edw. Ch. 586 ; Bromley v. Holland, 7 Yes. 19, 20 ; Totty v. JYeshitt 3 T. R. 153, note; MurlocJc v. Brown, 7 Humph. (Tenn.) 61. If the bond is lost after the declaration is filed, it has been held ^,ha plaintiff must amend. Ante, 163, 164 ; Smitli v. Woodward, 4 Vol. I. —89 706 BONDS. East, 585 ; Ohamherlin v. Sawyer, 19 Ohio, 360. See Lester v. Governor, 12 Ala. 624. But, although the liberality of courts of law now dispenses with the necessity of making profert, and permits a plaintiff to recover on a lost bond by proving its loss and contents, yet this circumstance does not in the slightest degree change the course in equity. Kemp v, Pryor, 7 Yes. 249 ; Mayne v. Griswold, 3 Sandf. (N. Y.) 463, 478 ; S. C, 9 N. Y. Leg. Obs. 25. And courts of equity will always give relief where the bond has been lost, or when it has been defaced by a(3cident or by design, provided the obligee has been guilty of no misconduct connected therewith. Harrison v. Turhemlle, 3 Humph. (Tenn.) 242 ; Kerney v, Kerney, 6 Leigh (Va.), 478 ; Foster v Williams, 5 B. Monr. (Ky.) 197. See a full discussion of this subject under the head of Accident, ante, 163, 164. BOUNDARIES. TOT CHAPTER XXIX. BOUNDARIES. TITLE I. PEIVATE BOUNDARIES ARTICLE L HOW ESTABLISHED BETWEEN" IJiTDlVIDUAL PE0PKIET0K8. Section 1. Boundary defined. Boundary, in the sense here in- tended, is defined as " any separation, natural or artificial, which marks the confines or line of two contiguous estates. The term is applied to include the objects placed or existing at the angles of the bounding lines, as well as those which extend along the lines of separation." 1 Bouv. Diet. 218. And where boundaries are denoted by monuments fixed at the angles, the connecting lines are always presumed to be straight, if not otherwise de- scribed. Nelson v. Hall^ 1 McLean, 519 ; Kingsland v. Chit- tenden, 6 Lans. (N. Y.) 15 ; S. C. affirmed, 61 N". Y. (16 Sick.) 618 ; Allen v. Kingsbury, 16 Pick. (Mass.) 235, 238 ; McCoy v. Galloway, 3 Ohio, 382 ; Jenks v. Morgan, 6 Gray (Mass.), 448 . A natural boundary is a natural object remaining where it was placed by nature. Thus shores, streams and rivers, ponds, beaches, highways and the like, are among the natural ob- jects often referred to as boundaries in deeds. And in North Carolina, a savanna is a "natural boundary," in the sense in which that term is used in the construction of deeds. Staple- ford V. Brinson, 2 Ired, L. (N. C.) 311. So, one parcel of land itself may be a monument to determine the boundary and limit of another. See Bates v. Ty mason, 13 Wend. 300 ; Flagg v. Thurston, 13 Pick. 145 ; Northrop v. Sicmney, 27 Barb. 196. An artificial boundary is one erected by man, and monuments denoting such boundary may be referred to in a description in a deed, although they do not exist at the time ; provided, that afterward the parties, in good faith and by mutual agreement, put up monuments as and for those intended in the description, in which case, they conclude the parties as eflTectuallj^ as if they 708 BOUNDARIES. had been in existence when the deed was executtd. WatermaJi y. Johnson, 13 Pick. 261, 267 ; Lerned v. Morrill, 2 N. H. 197 ; Kennebec Purchase v. Tiffany, 1 Me. 219. Natural objects, as a rule, being more lasting and permanent than artificial ones, are, on that account, preferred as monuments in forming bound- ary lines. And in one case it was said that so frail a witness as a stake is scarcely worthy to be called a monument, jr to cc n- trol the construction of a deed. Cox v. Freedley, 3c Penn. St. 124. § 2. Public street or highway. Highways are regarded in our law as easements. The public acquire no more than the right of way, with the powers and privileges incident to that right, such as digging the soil and using the timber and other materials found within the space of the road, in a reasonable manner, for the purpose of making and repairing the road and its bridges. When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extin- guished ; but is so qualified, that it can only be enjoyed, subject to that easement. The former proprietor still retains his exclu sive right in all mines, quarries, springs of water, timber, and earth, for every purpose not incompatible with the public right of way. The person in whom the fee of the road is may main- tain trespass, or ejectment, or waste. And, when the sovereign chooses to discontinue or abandon the right of way, the entiie and exclusive enjoyment reverts to the proprietor of the soil. See, generally, Harrison v. ParJcer, 6 East, 154; Good- title V. Alker, 1 Burr. 143 ; Perley v. Chandler, 6 Mass. 454 ; ^est Comngton v. Freking, 8 Bush (Ky.), 121 ; Mitchell V. Bass, 33 Tex. 259 ; Overman v. May, 35 Iowa, 89 ; Com- missioners, etc., V. BecTcwltJi, 10 Kan. 603 ; Cortelyou v. Van Brunt, 2 Johns. 357; Ball v. Ball, 1 PhUa. (Penn.) 86. A person through whose lands a highway is laid out may convey the land on each side, retaining the fee of the premi- ses covered by the highway. Munn v. Worrall, 53 N. Y. (8 Sick.) 46. And an owner who has thus retained his estate in the soil, incumbered by a highway, has a right to sell it, subject to that incumbrance. lb. ; Jackson v. Hathaway, 15 Johns. 447. See Peck v. Smith, 1 Conn. 103 ; Graves v. Amoskeag Co., 44 N. H. 462. The rule of law seems to be now well settled, both by the Englisli and American authorities, that the proprietors of land bounded "on, upon" or "along" a highway have prima facie, at least, a fee in such highway, ad medium filum vice. BOUNDARIES 709 subject to the easement. See Berridge v. Ward, 10 C. B. (^. S.) 400 ; Simpson v. Bendy, 8 id. 433 ; Holmes v. BelUngham, 7 J. Scott (N. S.), 329, 336 ; Chatham v. Brainerd, 11 Conn. 60 ; Bucknam v. Bucknam, 12 Me. 463 ; Marsh v. Burt, 34 Yt. 289 ; Dunham v. Williams, 37 N. Y. (10 Tiff.) 251 ; (9oi«6 v. TT/^/^d, 20 Wis. 432 ; Rice v. Worcester, 11 Gray (Mass.), 283 ; Banks v. Ogden, 2 Wall. 57, 68. And where land is sold border- ing on a highway, the mere fact that it is not so described in the deed will not vary the construction. The grantee takes the fee to the middle of the highway, on the line of which tlie land is situated. Stark v. Coffin, 105 Mass. 328 ; Hawesoille v. Lander^ 8 Bush (Ky.), 679 ; Gear v. Barnum, 37 Conn. 229. And the same principles applicable to boundaries on a public road apply also to those on a private road or way. Smith v. Hoiodeii, 14 C. B. (N. S.) 398 ; Holmes v. Bellingham, 7 id. 328, 336 ; Winslow V. King, 14 Gray (Mass.), 320. But see State v. Clements, 32 Me. 279. So, a conveyance bounded upon a street in a city or vil- lage would ordinarily include the soil to the center ; but when the road-bed belongs to the government and not to the abutters, the deed carries title only to the roadside. Dunham v. Wil- liams, 37 N. Y. (10 Tiff.) 251 : Falls v. Reis, 74 Penn. St. 439 ; White V. Godfrey, 97 Mass. 472 ; Bissell v. Neio York Central R. R. Co., 23 N. Y. (9 Smith) 6.1. See Seventeenth Street, 1 Wend. 202; Grinell v. Kirtland, 48 How. (N. Y.) 19. And where a deed of land describes it as bounded on a road, and sets forth metes and bounds which plainly exclude the road, no part of the soil and freehold passes by the grant. Wetmore v. Law, 29 How. 130; S. C, 34 Barb. 515; Tyler v. Hammond, 11 Pick (Zvlass.) 193 ; Jackson v. Hathaway, 15 Johns. 447 ; Hughes v. Providence, etc., R. R., 2 R. I. 508 ; Palmer v. Dougherty, 33 Me. 507 ; Cole v. Haynes, 22 Vt. 558 ; Hoboken Land Co. v. Ker- rigan, 30 N. J. (Law) 16. But where a grant described the land as "beginning on the westerl}^ side of the country road ; thence running northerly, touching the said westerly side of said road, forty rods ; " this description was held to be insufficient to con- trol the rule of law which extends the title to the center of the road. Johnson v. Anderson, 18 Me. 76. A highway referred to in a deed as a boundary must be under- stood to mean the highway as it practically exists, rather than as it was originally located, in case there has been any change in this respect. Falls Village, etc., Co. v. Tibhetts, 31 Conn. 165 •, Tibbetts v. Estes, 52 Me. 566. See Hunt v. Francis, 5 Ind. 302. 710 BOUNDARIES And where there is no competent record evidence of the laying out of a highway, and its boundaries cannot be accurately ascer- tained, evidence of the existence of a fence substantially in the same place for more than twenty years, upon the side of the highway, is competent for the purpose of fixing the boundary line. Pettlngill v. Porter^ 3 Allen (Mass.), 349; Hallen'bec'k \ Rowley, 8 id. 475. § 3. Sea shore. The doctrine of the common law as to what constitutes tlie shore of the sea is, that it is the space between the ordinary high- water mark and low- water mark. Cutis v. Hussey, 15 Me. 237 ; Storer v. Freeman, 6 Mass. 439 ; Tesche- Tnaclier v. Thompson, 18 Cal. 21 ; City of GalDeston v. Menard, 23 Tex. 349 ; Martin v. O'Brien, 34 Miss. 21. The terras "beach," "strand," and "flats," are often used as identical with "shore." li^iles v. PatcJi, 13 Gray (Mass.), 254; East Hampton v. Kirlz, 6 Hun (N. Y.), 257 ; Hodge v. Bootliby, 48 Me. 71 ; Dana v. Jackson Street Wharf, 31 Cal. 120. All the shore below ordinary high- water mark belongs to the sovereign power of the State. Commonwealth v. Charlestown, 1 Pick. (Mass.) 180 ; Trustees of BrooTchaven'v. Strong, 60 N. Y. (15 Sick.) 5Q, 65 ; Cortelyou v. Van Brundt, 2 Johns. 362 ; Martin v. Waddell, 16 Pet. 367. Hence, where lands are described as extending to the sea shore, and are bounded by it, the shore itself will not be considered as falling within the boundaries. Littlefield v. Maxwell, 31 Me. 134 ; Niles v. Patch, 13 Gray (Mass.), 257 ; Storer v. Freeman, 6 Mass. 439. But in Massa- chusetts, the rule of the common law was changed by the colo- nial ordinance of 1641, and the owner of lands bounded on the sea or salt water may hold to low-water mark, so that he does not hold more than one hundred rods below high-water mark, lb.; Sale v. Pratt, 19 Pick. (Mass.) 191. And it is held, that the grant of a wharf may carry the flats in front of it. Common- wealth V. Alger, 7 Gush. (Mass.) 66 ; Doane v. Broad St. Asso- ciation, 6 Mass. 332. See Palmer v. HicTcs, 6 Johns. 133 ; Hodge v. Boothhy, 48 Me. 71 ; Lomngston v. County of St. Clair, 64 111. 56 ; S. C., 16 Am. R. 524 ; Trustees of BooTcJiaven v. Strong, 60 N. Y. (15 Sick.) 56. Whether the ordinance of 1641 extends to New Hampshire has been questioned. See Nudd v. Hohhs^ 17 N. H. .527. As an incident to the ownership of the flats, Bea-weed cast up by the waves upon them or upon the shore, prima facie, belongs as an appurtenant to the owner of the soil. Phillips v. Rhodes, 7 Mete. (Mass.) 322 ; Fast Hampton v. BOUNDARIES. 71i KirJc, 6 Hun (X. Y.), 257, 260. And the riglit to take it may be the subject of sale and conveyance, separate from the soil itself. mil V. Lord, 48 Me. 83, 95. It has often been decided that the holders of land hold to low- water mark, notwithstanding they are bounded "by stakes and stones on the bank of the river." See HartY. Hill^ 1 Whartu (Penn.) 131; Elder v. Burns, 6 Humph. (Tenn.) 358; Hogan V. Mclfurtry, 5 Dana (Ky.), 181; 2 Smith's Lead. Cas. 166 (218). §. 4 Lakes or rivers. The bank of a stream is the continuous margin where vegetation ceases ; and the sJiore is the pebbly, sandy, or rocky space between that and low- water mark. Mc- Cullough v. WainrigM, 14 Penn. St. 171. The well-established rule of law is, that where lands are bounded by a stream or river not navigable, or above tide- water, the grantee takes usque filum aquoe, unless the stream or river is expressly excluded from the grant by the terms of the deed. Kingsland v. (Jfiltten- den, 6 Lans. (N. Y.) 15 ; Demeyer v. Legg, 18 Barb. 14 ; Cam- den V. Creel, 4 W. Ya. 365 ; State v. Gilmanton, 9 N. H. 461 ; Hatch V. Dmight, 17 Mass. 239, 298 ; Railroad Corny any v. ScJiurmeir, 7 Wall. 272, 287 ; Arnold v. Elmore, 16 Wis. 509. See TJiomas v. Hatch, 3 Sumn. 170. Thus, as illustrations of the rule as stated, it has been held, that where the line ran " to a stake standing on the east bank, etc., thence down the river, etc., it extended to the thread of the river. Luce v. Carley, 24 Wend. 451. And see Lunt v. Holland, 14 Mass. 150. So where the boundary was described as "easterly on a creek, and down said creek to a small butternut tree, which is the north-east corner of said lot," it was held that the true corner was at the center of the stream opposite this tree. Newton v. Eddy, 23 Yt. 319. See also Cold Springs Iron Works v. Tolland, 9 Cush. (Mass.) 492 ; Brown v. Chadbourne, 31 Me. 9. But a line running to G. river, thence "along the shore of said river to," etc., was held to exclude the river. Child v. Starr, 4 Hill (N. Y.), 369. See Yates V. Van Be Bogert, 56 N. Y. (11 Sick.) 526, 531 ; Bradford V. Cressey, 45 Me. 9. And where one corner was a stake, etc. , on the west bank of the river, and then around to another stake on the same bank, " thence running on the western bank of said river to high water to the first bound," the river was held to be excluded. Dunlap v. Stetson, 4 Mason, 349. The boundary line to lands bordering on rivers and lakes follows the meander- ing of the stream, and when the length of it is given, it is ascer- tained by reducing the meandering lines to a straight one. GHran-^ 712 BOUNDARIES. ger v. Swart, 1 Woolw. 88; Calk v. Strihhing, 1 Bibb (Ky), 122; Hiclcs v. Coleman, 25 Cal. 142. It has been held that where lands are bounded in a deed of conveyance, by an inland lake, five miles long, bnt less than a mile in width, that the title of the grantee extends usque ad medium filum aqucs. Ledyard v. Ten Eyck, 36 Barb. 102. But generally this rule is inapplicable to the lakes and other large natural collections of fresh water in this country. See HaiJwrn V. SHnson, 10 Me. 238 ; Canal Commissioners, etc. v. People, 5 AYend. 423. In New Hampshire it was held that where a grant runs to, and is bounded upon a lake or large body of standing fresh water, the grant extends only to the water's edge. State v. Gilmanton, 9 N. H. 461. And see Dillingliam v. Smith, 3 Me. 370 ; Fletcher v. Fheljps, 28 Yt. 257. Riparian owners on Lake Michigan own to the line where the water usually stands when unaffected by any disturbing cause. Seaman v. Smith, 24 111. 521. Proprietors of land lying on Lake Champlain own to low- water mark, unless it is otherwise expressed in the grants ; sub- ject, however, to a servitude to the public, for the purposes of nav^igation, up to high-water mark. Champlain & St. Lawrence R. R. Co. V. Valentine, 19 Barb. 484. And it is stated to be a general rule, that a boundary upon a natural pond or lake car- ries title, not to its center, but only to low-water mark. Wheeler V. Spinola, 54 N. Y. (9 Sick.) 377 ; Waterman v. Johnson, 13 Pick. (Mass.) 261. But the rule as to an artificial pond is other- wise ; a boundary thereon generally, in the absence of other con- trolling facts, carries title to the center. lb.; West Roxbury v. Stoddard, 7 Allen (Mass.), 167 ; Wood v. Kelley, 30 Me. 47. It has been held by the Supreme Court of the United States, that the riparian owner on the great lakes, as well as on tide- waters, has, by grant, statute, or immemorial usage, the right to build out such convenient wharves as do not obstruct the public rights of navigation. Button v. Strong, 1 Black, 23. The rule which governs the question of boundary in the case of land bordering on the sea, or on an arm of the sea, is also applicable to land bounding on a navigable river. And the gen- eral rule of the common law is that if the boundary be a navi- gable river, that is, one in which the tide ebbs and flows, the land extends only to ordinary high-water mark, and high-water mark i^prima facie the boundary line. Middleton v. Pritchard, 3 Scam. (111.) 510; State v. Jersey City, 1 Dutch. (N. J.) 525; East Haven v. Hemingway, 7 Conn. 186 ; Canal Commissioners BOUNDARIES. 713 V. Tlie People, 5 Wend. 423, 446 ; Wheeler v. Spinola, 54 N. Y. (9 Sick.) 377, 385. § 5. Other boundaries. A tree, standing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not. Hoffman v. Armstrong, 46 Barb. 337, 339; 48 N. Y. (3 Sick.) 201 ; Griffin v. B'lxby, 12 N. H. 454 ; and trespass will lie, if one cuts and destroys it without the consent of the other. lb.; Dubois v. Beaver, 25 N. Y. (1 1 Smith) 123. But see Gibson V. VaugJm, 2 Bailey (S. C), 389. Where the boundary line between two adjoining proprietors is a ditch or wall, and one of the owners conveys land bounding it in the conveyance, upon the ditch or wall, the presumption is, that the grantee takes to the center, as in the case of land conveyed, bounded on an un- navigable river, or a highway. Warner v. Southworth, 6 Conn. 471 ; City of Boston v. Ric?uirdson, 13 Allen (Mass.), 146. In case of a boundary on party walls, the presumption is, that the wall and the land upon which it stands belong in common to the owners of the adjoining premises. Cubitt v. Porter, 8 Barn. «& C. 257; Hoffman v. Armstrong, 46 Barb. 337, 339; 48 X. Y". (8 Sick.) 201. The common boundary is the property of both, and where a fixture is put on it by the labor of both, they are, as to it, tenants in common. lb. Thus, a fence erected on the line is a fixture, in which the adjoining owners have an undivided interest ; Gibson v. Vaughn, 2 Bailey (S. C), 389 ; and for the removal of which it is held, that neither can maintain trespass against the other. lb. But see Dubois v. Beater, 25 X. Y^. (11 Smith) 123 ; Griffin v. Bixby, 12 N. H. 454. As to the ownersliip of islands formed in rivers the rule is stated to be, that where an island is so formed in the bed of a river not navigable, as to divide the channel and lie partly on each side of the thread of the river, it will be divided between the riparian proprietors on the opposite sides of the river according to the original thread of the river. Inhabitants of Deerfield v. Arms, 17 Pick. (Mass.) 41 , Trustees, etc., v. Dickinson, 9 Cush. (Mass.) 548. See also Bar dwell v. Ames, 22 Pick. 333 ; JMcCul- lough V. Wall, 4 Rich. (S. C.) ^'$, ; CrgoJcer v. Bragg, 10 Wend. 260. § 6. Marshaling boundaries. In locating lands, boundaries are usually marshaled in the following order : First. Natural boundaries. Second. Artificial marks. Third. Adjacent bound- aries. Fourth. Course and distance. Fulioood v. Graham. 1 Vol. L— 90 714 BOUNDARIES. Rich. (S. C.) 491. Neither rule, however, occupies an inflexible position ; for when it is plain that there is a mistake, an inferior means of location may control a higher. lb. ; Loring v. Norton^ 8 Me. 61 ; Hay lies v. Young ^ M id. 557 ; Newliall v. Ireson^ 8 Cush. (Mass.) 595 ; Nelson v. Hall, 1 McLean, 518. § 7. Construction of grants in respect to boundary. In giving construction to the description of the premises in a deed, the intent of the parties, if by any possibility it can be gathered from the language employed, will be effectuated. A general rule of construction as it regards boundary, and one that is well sustained by the authorities, is thus stated : Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made a part, as a house, a wall, a wharf or the like, the side of the land or structure referred to as a boundary is the limit of the grant ; but where the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree or a stake, the center of the thing so running over or standing on the land is the line of boundary of the lot granted. City of Boston V. Micliardson, 13 Allen (Mass.), 144, 157. And see Lord v. Com- missioners of Sidney, 12 Moore's P. C C. 473, 497 ; S. C, 7 W. R. 267 ; see, also, the preceding sections of this article and the cases cited. Where the boundaries of land are fixed, known and unques- tionable monuments, although neither courses, nor distances, nor the computed contents correspond, the monuments must govern. Pernam v. Weed, 6 Mass. 131 ; Alshire v. Hulse, 5 Ohio, 534 ; Smith V. Dodge, 2 N. H. 303 ; Jackson v. Jf'rost, 5 Cow. 346 ; Yates V. Van De Bogert, 56 N. Y. (11 Sick.) 526 ; Baxter v. Emit, 1 T. B. Monr. (Ky.) 333 ; Call v. Barker, 12 Me. 325 ; Dogan v. Seekrlglit, 4 Hen. & M. (Va.) 125 ; Frederick v. Brulard, 7 La. Ann. 655 ; West v. Shaw, 67 N. C. 489 ; Welder v. Hunt, 34 Tex. 44 ; Preston v. Bowmar, 6 Wheat. 580 ; Riley v. Ghriffin, 16 Ga. 141 ; Mor eland v. Page, 2 Iowa, 139; Keenan v. Cai^anaugh, 44 Vt. 268. If there are no monuments, the land must be bounded by the courses and distances named in the patent or deed. Hammond v. Rldgley, 5 Harr. & J. (Md.) 254; OJierry BOUNDARIES. 715 V. Shade, 3 Murph. (N. C.) 82 ; CTUnowetJi v. Haskell, 3 Pet. 96 ; Drew V. Swift, 46 iS". Y. (1 Sick.) 204. And the same is true, where monuments that once existed are gone, and their places cannot be proved. Preston v. Bowmar, 2 Bibb (Ky.), 493 ; Baglty v. Morrill, 46 Vt. 94. Or where monuments are named, but are indistinguishable from others of the same kind. Chiao loetTi V. Haskell, 3 Pet. 96 ; Browaing v. Atkinson, 37 Tex. 633. The reason given why monuments are to control the courses and distances in a deed is, that the former are less liable to mis- takes. Davis V. Rainsford, 17 Mass. 210. Or, the rule is based upon the legal presumption, that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto. Raynor v. Timer son, 46 Barb. 518. See Smith V. Chatham, 14 Tex. 322 ; Harvey v. Mitchell, 11 Fost. (X. H.) 575. Where certain monuments are referred to in a description, which do not exist at the time, and afterward the parties, in good faith and by mutual agreement, put up monuments as and for those intended in the description, such monuments will be deemed the monuments intended in the description. But the placing of these monuments and the consent and agreement of the parties in relation thereto must be proved by parol. Waterman V. Johnson, 13 Pick. (Mass.) 261, 267. So it is competent to show by parol evidence, that certain monuments actually existing at the time were the monuments intended, where there are two or more which equally well answer the description. Thus, if the deed describes a line as running to a pine tree marked, and in applying the deed to the land, there are found two pine trees marked, either of which answers the general description, parol evidence would be admissible to show which was intended. lb. And see Frost v. Spaulding, 19 Pick. 445, 447 ; Cotton v. Seavey, 22 Cal. 496 ; Middleton v. Perry, 2 Bay (S. C), 539. The ques- tion as to what the boundaries of a given piece of land which has been conveyed by deed are, is for the court; where these boundaries are, is a question for the jury. Abhott v. Abbott, 51 Me. 575,581 ; Clark v. Wagoner, 70 N. C. 706. Some miscellaneous illustrations of construction as to boun- dary are here given. Where the calls in a conveyance of land are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise. Lovingston v. County of St. Clair^ 716 BOUNDARIES. 18 WaU. 628 ; 16 Am. E. 524, note; affirming S. C, 64 111. 56; 16 Am. R. 516. Where a deed described the premises conveyed as bounded by a line beginning at a point "on the bank" of a stream, thence going by courses and distances around the track '^ to the said stream, and down the stream as it winds and turns, to the place of beginning ;" it was held that the words "to the said stream" must be construed to mean to the bank of the stream, and not to the center. Babcock v. Utter ^ 1 Abb. Ct. App. (N. Y.) 27. A grant bounding on " the bank" of a creek does not convey the land to the center of the creek, but only to low- water mark. Halsey v. McCormicJc, 13 N. Y. (3 Kern.) 296; Yates V. Van DeBogert, 56 N. Y. (11 Sick.) 526. See also Lamh v. Ricketts, 11 Ohio, 311 ; McOullocJc v. Ateri, 2 id. 309. A deed which calls for " the middle of a creek in its natural channel when the pond is exhausted," makes a shifting boundarj^, and not a fixed land- mark. Primm v. Walkei\ 38 Mo. 94. A grant of ""all that certain stream and pond of water and saw-mill there- on to belonging, situate," etc., does not convey to the grantee the fee of the land covered by the stream and pond. Nostrand V. Durland, 21 Barb. 478. And see Bartliolomew v. Edwards, 1 Houst. (Del.) 17. The owner of adjoining lands, who is also owner of the bed of a creek, may grant and convey the bed of the creek separate from the land which bounds it. Den v. Wright, Pet. (C. C.) 64. A deed of land describing the granted premises as "lying and being on the west side" of a river, which is not navigable, conveys the title to an island in the river, which lies to the west of the main channel. Stanford v. Mangin, 30 Ga. 355. And a deed of land bounded " east by the pond," conveys the land to the center of the original stream of an artificial pond, which was created by a dam across the stream. Milt Umer, etc.^ Co. V. Smith, 34 Conn. 462. A call "up the creek" means, ordi- narily, a line to run with the creek. Buckley v. Blackwell, 10 Ohio, 508. And the line must run through the middle of the creek, according to its turnings and windings. Jackson v. Louw^ 12 Johns. 252 ; Jones v. Pettihone, 2 Wis. 308. The rule that a 'grant of land, bounded on a road or creek, car- ries the rights of the grantee to the center thereof, applies as well to city lots as to farms in the country. Hammond v. McLaughlin^ 1 Sandf. (N. Y.) 323. The question, whether, in conveyance of land abutting upon a highway, the highway does or does not pass to the grantee, is, in all cases, a matter of construction and intention merely, to be determined from a consideration of the BOUNDARIES 71": language used by the parties and such surrounding circum- stances as are proper to be considered in ascertaining tbeii intent. The presumption in such cases is, however, tliat the parties did intend to include the highway, and the burden of proof is upon the party who asserts that the contrary was intended. Buck v. Squires, 22 Yt. 484 ; Kmgsland v. Chitten- den, 6 Lans. (N. Y.) 15; 61 N. Y. (16 Sick.) 618. If a deed of land bounds the grantee, upon or by ''Hhe side of a higliwa}^," these words are presumed to exclude the highway, especially if tins construction be consistent with the circumstances and sub- ject-matter of the grant. Anderson v. James, 4 Robt. (N. Y.) 35 ; Fearing v. Irwin, 4 Daly (N. Y.), 385 ; 55 N. Y. (10 Sick.) 486 ; Huglies v. Providence, etc., R. R, Co., 2 R. I. 508 ; Hohoken Land, etc., Co. v. Kerigan, 17 N. J. Eq. 13. A conveyance of land "bounded on " a private way leading to the grantor's dwelling-house carries the fee to the center of the way. Fisher v. Smith, 9 Gray (Mass.), 441. But, where the proprietor of grounds laid out for use as a public cemetery makes a conveyance of a burial lot, no interest in the alleys which separate it from other lots, except a right of way, passes to the purchaser, unless particularly expressed in the deed ; the presumption being of a reservation, rather than a grant. Sey mow V. Page, 33 Conn. 61. It has been held by the supreme court of the State of Maine, that the line of a parcel of land to ran parallel with and at a specified distance from the south side of a building should be measured from the corner board of that side, and not from the outer edge of the eaves. Proprietors, etc. v. Machias Hotel Company, 51 Me. 413. And by the same court it is held, that the word "from" an object, or "to" an object, used in a deed excludes the terminus referred to. Bonney v. Morrill, 52 id. 252. "Where the question involved is, whether a boundary described in a deed was intended to be a mere paper street, as laid down on plat, or an actual highway, known as such, and not hy any name appearing on the plat, the use of the expression " pul)lic road " as that boundary in the description in the deed, is construed to indicate the latter rather than the former; and indicaces an intent to carry the title to the middle of the road. Purkiss v Benson, 28 Mich. 538. § 8. Effect of acquiescence in boundary line. A line may be established, by acquiescence of the parties, that is different from 718 BOUNDARIES. the true line. Smitli v. McAllister, 14 Barb. 434; Taught v. Holway, 50 Me. 24 ; Dams v. Judge, 46 Vt. 655. And the fol- lowing periods of time of acquiescence have been held sufficient to fix the boundaries : Fifteen years, Spaidding v. Warren, 25 Vt. 316 ; Davis v. Judge, 46 id. 655; sixteen years, Colmiibet V. Pacliees, 48 Cal. 895 ; twenty years, Corniiig v. Troy Iron and Nail Factory, 44 N. Y. (5 Hand) 577 ; Minor v. Mayor, etc., of Neio Torlc, 5 Jones & Sp. 171 ; Ball v. Cox, 7 Ind. 453 ; Car- roway v. Chacey, 2 Jones' L. (N. C.) 170 ; Coyle v. Gleary, 116 Mass. 208 ; twenty-live years, Savage v. Foy, 7 La. Ann. 573 ; thirty years, Cliew v. Morton, 10 Watts (Penn.), 321 ; forty years, Baldwin v. Brown, 16 N. Y. (2 Smith) 359 ; Pierson v. Mosher, 30 Barb. 81. And see Terry v. Chandler, id. 354 ; Oilchrist v. M'Gee, 9 Yerg. (Tenn.) 455 ; Bolton v. Lann. 16 Tex. 96 ; Rat- cliffe V. Cary, 4 Abb. Ct. App. (N. Y.) 4 ; Prim v. Raboieau, 56 Mo. 407 ; Smith v. McNamara, 4 Lans. (N. Y.) 169 ; Mc Arthur v. Henry, 35 Tex. 801 ; Hathaway v. Evans, 108 Mass. 267. Where the channel of a river is the boundary between States, the sudden changing of it b}^ artificial means does not affect the boundary ; nor can State boundaries be changed by the acquiesc- ence of towns, or town authorities. State v. Young, 46 Vt. 565. ^ 9. Special agreements as to boundary line. It is a well-settled doctrine that the courts will not disturb parol agreement or long acquiescence in a boundary line, but will encourage such settle- ments of disputed, conflicting, or doubtful boundaries, as a means of suppressing spiteful and vexatious litigation. Wakefield v. Ross, 5 Mass. 16 ; Mc Arthur v. Henry, 35 Tex. 801. Such agree- ments are not within the statute of frauds, requiring agreements in relation to real estate to be in writing. Kincaid v. Dormey, 47 Mo. 337 ; Kellum v. Smith, ^5 Penn. St. 86 ; Orr v. Hadley, 36 N. H. 575. And the doctrine is held to apply even where one of the parties is only a settler upon public land. Thus, a proprietor who points out to a settler on land adjoining liis own, a line as the true boundary, acquiescing and assisting him in a settlement and improvements thereon, is thereby estopped from afterward asserting his claim to the land covered by the improvements, though a subsequent survey proved it to be his own land. Jor- dan V. Deaton, 23 Ark. 704. So, it is held, that where there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement BOUNDARIES. 719 long acquiesced in will not be disturbed, al though the time has not been sufficient to establish an adverse possession. Smith v. Hamilton, 20 Mich. 433. See Corning v. Troy, etc., Factory, 44 N. Y. (5 Hand) 577 ; Reed v. Mc Court, 41 N. Y. (2 Hand) 435. And even without any agreement more tlian is implied from their acts, if two persons trace their dividing line, and both recogniz- ing it as such, one goes forward with the knowledge and acquiesc- ence of the other, and makes valuable improvements, so valua- ble as to work great injury to the party making them if the line be disturbed, the other will be estopped from afterward alleging such mistake as shall deprive the builder of his improvements. Dolde V. Vodicka, 49 Mo. 98 ; Majors v. Bice, 57 id. 384. See also Palmer v. Anderson, 63 N. C. 365 ; Abbott v. Abbott, 51 Me. 575 ; Laverty v. Moore, 32 Barb. 347 ; Wilson v. Hudson, 8 Yerg. (Tenn.) 398 ; Boyd v. Graves 4 Wheat. 513. So, where a person has sold land up to a certain line, pointing it out as the true line, and inducing another to buy up to it, he is estopped to deny that it is the line between his own and the adjoining land. Richard- son V. CMcliering, 41 N. H. 380. But a parol agreement resi3ect- ing a boundary, made while a party is only an occupant without title, cannot be binding upon him after he acquires the fee. Crotoell V. Maughs, 7 111. 419 ; Lewallen v. Coerton, 9 Humph. (Tenn.) 76. And a bare trespasser, having no title whatever, cannot, by such agreement, become the owner of his neighbor's land ; nor can there be a plain and wide departure from the boundary of a natural object, like a marsh, under the pretext of fixing the boundary. Walker v. Devlin, 2 Ohio St. 593. So, in a division of land between two parties, if either was deceived by the inno- cent or fraudulent misrepresentations of the other ; or there was any mistake in regard to their rights, the division is not binding on either. Knowlton v. Smith, 36 Mo. 507 ; Bailey v. Jones, 14 Ga. 384 ; Colby v. Norton, 19 Me. 412 ; Coon v. Smith, 29 N. Y. (2 Tiff.) 392. And if the parties know where the true line is, and by agreement make another, this would be a parol transfei of the land, and would be void by the statute of frauds. Tar- borough v. Abernaihy, 1 Meigs (Tenn,), 413. See Whitney v. Holmes, 15 Mass. 153 ; Gove v. Richardson, 4 Me. 327. The admission of a party of a mistaken boundary line, for a true one, has no effect upon his title. Crowell v. Bebee, 10 Vt. 33. And it is held, that a parol assent by one of them, as to the location of a boundary fence between adjoining owners, and the 720 BOUNDARIES. actual erection of the fence by the other, in accordance with such assent, followed by mutual occupation and acquiescence in such location of the boundary for a few months, is not sufficient to change the true line, or to preclude the assenting party from asserting his rights, in accordance with such true line. Reed v. McCourt, 41 N. Y. (2 Hand) 435, And see Miner v. Mayor, etc., of New YorTc, 5 Jones & Sp. (N. Y.) 171, 189. Nor will parties be bound by an intervening fence as a boundary dividing their lands, where they claim only to the extent of their paper title, whatever that may be, and the fence is suffered to remain simply as a matter of convenience. West v. St. Louis K. C. & N. Bail way Co., 59 Mo. 510. See Jones v. Smith, 3 Hun (N. Y.), 351 ; S C, 5 N. Y. S. C. (T. & C.) 490. § 10. Settlement of disputed boundaries. The mode of pro- ceeding in the settlement of disputed boundary lines is, in some cases, prescribed by statute ; and special tribunals have been provided, for the express purpose of ascertaining and determin- ing the line or lines in dispute. See Lisbon v. Bowdoin, 53 Me. 324 ; Bitman v. Albany, 34 N. H. 677 ; Berry v. Bratt, 31 Conn. 433 ; Norris'' Appeal, 64 Penn. St. 275. But in the great majority of cases, disputes respecting boundary lines between adjoining owners of lands are settled in the action of ejectment or the action for the recovery of real property. So, the action for trespass upon lands not unfrequently turns upon the ques- tion of boundary. See Goodridge v. Dustin, 5 Mete. (Mass.) 363 ; Balmer v. Anderson, 63 N. C. 365. There are cases of disputed boundary, however, for which there is no adequate remedy ex- cept in a court of equity. But equity has no jurisdiction to fix the boundaries of legal estates in the absence of other ground for equitable relief. Norris^ Appeal, 64 Penn. St. 275 ; Wether - bee V. Dunn, 36 Cal, 249. To give jurisdiction there must be some equity superinduced by the acts of the parties. Tiltmes v. Marsh, 67 Penn. St. 507. And see Stewart v. Coulter, 4 Rand. (Va.) 74; Haskell v. Allen, 23 Me. 448; Berry v. Bratt, 31 Conn. 433. Where, however, there are peculiar equities attach- ing themselves to the controversy, or where it will prevent a multiplicity of suits, a court of equity will assume jurisdic- tion and grant an appropriate remedy. Boyd v. Bowie, 65 Barb. 237; Wetherbee v. Dunn, 36 Cal. 249, 255. Thus, where a defendant has threatened and has served a formal written notice that he intends to remove ten inches of the end wall of the complainant's dwelling, which the defendant alleges BOUNDARIES. 731 is upon Ms land, a court of equity will, to prevent multiplicity of suits, entertain jurisdiction and settle the boundaries, in order to determine whether the complainant is entitled to the continu- ance of its protection by injunction. DeVeney v. Gallagher^ 20 N J. Eq. 33. And see Primm v. Rahoteau, 56 Mo. 407, in which case it is held that where a court of equity grants relief in re- sponse to the prayer of a pleading in the nature of a bill of peace, it ma}^ effectuate its decree in their behalf, by requiring a dis- puted boundary to be surveyed and marked in a permanent man- ner. And where a mill-race was conveyed, and afterward filled up and plowed over by one who had acquired an interest in the land, a court of equity took jurisdiction and granted relief '' under a well-settled head of equity jurisdiction — Confusion of boundaries." Merriman v, Russell, 2 Jones' Eq. (N. C.) 470. So it would seem that equity may enforce an oral agreement to fix boundary. Jamison v. Petit, 6 Bush (Ky.), 669 Vol. I. >- 91 722 BREACH OF MARRIAGE PROMISE. CHAPTER XXX. BREACH OF MARRIAGE PROMISE. ARTICLE I. A8 TO EIGHT OF ACTION FOR BREACH OF PROMISE TO MAE,RT. Section 1. Nature of contract to marry. Contracts to marry are unlike all other contracts. They concern the highest interests of human life, and enlist the tenderest sympathies of the human heart, and the acts and declarations done and employed by par- ties in negotiating them are often correspondingly delicate and emotional. No formal language is necessary to constitute the contract. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not mate- rial by what means they arrived at that state. Such is the well- established doctrine, both in England and in this country. See Whitcomh V. Wolcott, 21 Vt. 368 ; Hotclikins v. Hodge, 38 Barb. 117 ; Tefft v. Marsh, 1 W. Va. 38 ; Coil v. Wallace, 24 N. J. (Law) 291 ; Perkins v. Hersey, 1 R. 1. 493 ; Waters v. Bristol, 26 Conn. 398 ; Hutton v. Mansell, 6 Mod. 172 ; Honeyman v. Campbell, 5 Wils. & Shaw, 144; S. C, 2 Dow. & Clark, 282. In the last-mentioned case, the following propositions are stated to be the law upon the subject : First. That the contract may be proved by direct or by circum- stantial evidence. Second. That there must be a serious promise, intended as such by the person making it, and accepted by the person to whom it was made. Third. That mere courtship or even an intention to marry is not sufficient to constitute a contract of marriage. Approved in Homan v. Earle, 53 N. Y. (8 Sick.) 267, 273. The expression used in many of the cases, that a contract may be inferred from devoted attention and apparently exclus- ive attachment, has not been generally adopted by the courts, lb.; Wightman v. Coates, 15 Mass. 1, note ; Commonwealth v. Walton, 2 Brewst. (Penn.) 487. It does not follow that because a man is the suitor of a lady and visits her frequently, a marriage engagement exists. Walmsley v. Hobuison, 63 111. 41 ; S. C, BREACH OF MARRIAGE PROMISE 723 14 Am. R. Ill ; Burnliam v. Cornwell, 16 B. Monr. ^Ky.) 284. Nevertheless, courtship is a most material %ct in the case in examining whether from the conduct of tht parties it appears that a promise had actually passed between them. Honeyman V. Caviphell, 6 Wils. & Shaw, 144; S. C, 2 Dow. & Clark, 282. So, while it is plain that an intention to make a contract is not a contract, yet if such intention is so expressed as that both parties understand it to be a promise, and it is accepted as such, it is as binding as if made in any other form. Homan v. Earle, 53 N. Y. (8 Sick.) 267, 274; ffarmy v. JoJniston, 6 C. B. 295 ; 6 D. & L. 120 ; 12 Jur. 981 ; 17 L. J., C. P. 298. Contracts to marry at a future time were once regarded with disfavor by the English courts. See Lowe v. Peers, 4 Burr. 2225, 2230; WoodJiouse v. Shepley, 2 Atk. 535, 539. But it has long been the settled law both in England and in this country, that such contracts are as valid and etfectual as any other contracts; and actions may be maintained upon them, and damages may be recovered as well for suffering and injury to condition and prospects, as for pecuniary loss. See Daniel v. Boioles, 2 C. & P. 553; Morgan v. Yarhorough, 5 La. Ann. 317; Boynton v. Kellogg, 3 Mass. 189; Laiorence v. CooTce, ^Q Me. 187. § 2. Promises must be reciprocal. Promises to marry must be reciprocal, or no action can be maintained for breach of promise. Espy v. Jones, 37 Ala. 379 ; Standi/ ord v. Gentry, 32 Mo. 477; Allard v. SmitTi, 2 Mete. (Ky.) 297; Weaver v. Bachert, 2 Penn. St. 80. But it is not necessary that assent to the engagement by both parties be concurrent. If an offer be made, it remains open for acceptance for a reasonable time, and after acceptance the contract is complete. Veneall v. Veness, 4 F. & F. 344. An exception to the rule as to the necessity of reciproc- ity would seem to exist where the promise to marry is made by deed. Thus, if a man of full age binds himself by deed to marry a woman by a day named, he is responsible for the non-perform- ance of his bond or covenant, although the woman may not be bound by a reciprocal contract to marry him. Atkins v. Farr, 1 Atk. 287. It is the duty of the man, in such case, to go and offer himself to the woman, and not for the woman to go in search of the man. Holer oft v. Dickenson, 1 Freem. 347; Sey- mour V. Gartside, 2 D. & R. 57. A woman is also bound by such a deed or covenant as well as a man, provided it has been obtained openly and fairly, and with perfect good faith. But such a contract or engagement obtained fi'om a wcman will be 724 BREACH OF MARRIAGE PROMISE. regarded with the greatest jealousy and suspic on, particularly where the man has entered into no corresponding engagement on his part. Coclc v. JHchards, 10 Ves. 437. Where the defend- ant's promise is proved, the woman may prove her own acts and declarations in order to show her assent. Wetmore v. Wells^ 1 Ohio St. 26; Morltz v. Melhorii, 13 Penn. St. 331. § 3. Conditional promises. A contract to marry, like most other contracts, may be on condition; and if the condition is a lawful one, the liability attaches as soon as the condition has been accomplished. Cole v. Cottlngham, 8 0. & P. 75 ; Harvey V. Jolmsion, 6 C. B. 295; 6 D. & L. 120; 12 Jur. 981; 17 L. J., C. P. 298. But the condition may be such as to make the contract void. Thus, if the marriage is made to depend upon the happening of a distant and uncertain event, which may, in all probability, not take place during the lives of the parties, it would be a contract in restraint of marriage, and void. Hartley v. Rice, 10 East, 22. So, marriage brokage bonds, as they are called, are held invalid, as against public policy. These are contracts to marry at the death of parents or other relations from whom money is expected, and who are kept in ignorance of the contract. Drury v. Hooke, 1 Yern. 412 ; Qole V. Cottingham, 8 C. & P. 75. But a covenant to pay a woman a sum of money, so long as she continues sole and unmarried, is not illegal. Gibson v. Dickie, 3 M. & S. 463. § 4. Time of performance. An agreement to marry at an un- reasonably distant time is voidable at the option of either party, as being in restraint of matrimony. See Hartley v. Hice, 10 East, 24. If no time is specified for the performance of the con- tract, it is in contemplation of law a contract to marry within a reasonable time after request ; and either part}^ may call upon the other to fulfill the engagement, and, in case of default, may bring an action for damages. So, if a day is fixed and agreed upon for the performance of the contract, and, before that day arrives, either party refuses to perform the contract at any time, such party is instantly liable in an action for damages for breach of promise. Burtis v. Thomjjson, 42 N. Y. (3 Hand) 246 ; S. C, 1 Am. R. 516 ; Holloway v. Griffith, 32 Iowa, 409 ; S. C, 7 Am. R. 208 ; Frost V. Knight, L. R., 7 Ex. 218 ; S. C, 5 Alb. L. J. 235 ; revers- ing S. C, L. R., 5 Ex. 322. And if either of the parties puts it out of his or her power to fulfill the contract, by marrying somebody else, there is a breach of the engagement ; and a right of action at once attaches. A request to marry, in such case, need not be BREACH OF MARRIAGE PROMISE. 725 made or alleged in the pleadings. Sliori v. Stoue^ 8 Q. B. 358 ; Lovelock V. Fraiiklyn, 8 id. 378 ; S. C, 15 L. J., Q. B. 145 ; Cle- ments V. Moore, 11 Ala, 35 ; King v. Kersey, 2 Ind. 402. § 5. Taliditj of promise. A promise of marriage made at a time when both parties were married, and known to be so by each other, is held invalid. Paddock v. Rohinson, 63 111. 99 ; S. C, 14 Am. R. 112. But, it is held that an action ma}^ be main- tained for the breach of a promise to marry, although the defend- ant was married at the time the promise was made, provided the plaintiff was ignorant thereof. Kelly v. Riley, 106 Mass. 339 ; S. C, 8 Am. R. 336 ; Comr v. Damnport, 1 Heisk. (Tenn.) 368 ; S. C, 2 Am. R. 706 ; Wild v. Harris, 18 L. J., C. P. 297 ; 7 C. B. 999. A promise to marry, made in consideration of illicit intercourse, is not binding, Goodall v. TJiurman, 1 Head (Tenn.), 209; Beaumont v. Reeve, 8 Ad. & Ell. (N, S.) 483 ; Steinfeld v. Levy, 16 Abb. X. S. (N. Y.) 26 ; though it has been held, that a promise of marriage, made after seduction has been effected and in con- sequence thereof, is not thereby rendered invalid. HotcTikins v. Hodge, 38 Barb. 117. See People v. Kenyon, 5 Park. (N. Y,) 254. An unwritten promise to marry after more than a year is void within that clause of the Statute of Frauds which requires that a promise not to be performed within one year from the making shall be in writing. Derby v. Phelps, 2 N. H. 515 ; Nichols v. Weaver, 7 Kans. 373. But where the defendant told the plain- tiff he was not able to marry her then, but promised her he would marry her within four years ; and it not appearing that the parties understood that the promise was not to be performed within one year, it was held, that such promise was not within the Statute of Frauds. Laiorence v. Cooke, 56 Me. 187. Mutual promises to marrj^ are sometimes excepted from the operation of the Statute of Frauds. 2 N". Y. R. S. 140, § 2, subd. 3, Edm. ed. § 6. Excuses for breach of promise. It is a sufficient excuse for the breach of a woman's promise to marry, if the person to whom she has given the promise turns out upon inquiry to be a man of bad character. Baddely v, Mortlock, Holt, 151. So, notwithstanding a promise of marriage proved, if a man has con- ducted himself in a brutal or violent manner, and threatened to use a woman ill, she has a right to say she will not commit lier happiness to such keeping. Leeds v. Cook, 4 Esp. 257, Bod- ily infirmity, arising after the contract, has been held a good rea* son for either of the parties to break off an engagement. Atchin- son V, Baker, Peake's Add. Gas. 103 ; Short v. Stone, 8 Q. B.369. 7-26 BREACH OF MARRIAGE PROMISE. But it has also been held by a majority of the court, in an Eng- lish case, that a party cannot set u^ as an excuse for the breach of a promise to marry, that the performance of the conjugal duties would be dangerous to his life. Hall v. WrigJit, EL, Bl. & El. 746 ; S. C, 29 L. J., Q. B. 43 ; 8 W. R. 160. And previous insanity and confinement in a lunatic asylum constitute no excuse for non-performance of a promise of marriage. Baker v. CartwrigU, 10 C. B. (N. S.) 124 ; S. C, 30 L. J., C. P. 364. A rape, wholly without the fault of the woman, would discharge the man from his obligation. And it has also been said, that i f a widow conceals her previous marriage, and betroths herself as a virgin, this would be a fraud and would avoid the contract. 2 Pars on Cont. 67, citing Add. on Cont. 581, 584. If au}^ man has been paying his addresses to one that he supposes a modest person, and afterward discovers her to be loose and immodest, he is justified in breaking any promise of marriage he may have made to her. Butler v. Esclileman, 18 jll. 44 ; Berry v. Bakeman, 44 Me. 164 ; Bell v. Eaton, 28 Ind. 468 ; Capehart v. Carradine, 4 Strobh. (S. C.) 42. Though it is otherwise if he made the engagement knowing her to be a loose and immodest woman, or if she afterward prostituted her person to another man, with his connivance. Irving v. Greenwood, 1 C. & P. 350 ; Johnson v. Smith, 3 Pittsb. (Penn.) 184. And mutual improprieties and lewdness between parties betrothed, should not be allowed to bar the woman's right of action for a breach of promise of marriage, or be received either in mitiga- tion or aggravation of damages. lb. This subject will be fully considered in treating of defenses, and of marriage. § 7. Abaudoniuent of contract to marry. The engagement to marry may be dissolved by mutual consent, at any time before the contract is carried into effect by the performance of the mar- riage ceremony. King v. Gillett, 7 M. & W. 55. See Grant v. Willey, 101 Mass. 356. And where the plaintiflT was induced by the false statements of a third person to write a letter to the de- fendant discarding him, and releasing him from his promise to marry her, which letter was received, and in good faith acted upon by him, he having had no knowledge of its fraudulent pro- curement from her, she is not entitled to recover in an action for an alleged breach of such promise. Allard v. Smith, 2 Mete, (Ky.) 297. See Davis v. Bomford, 6 H. & N. 245 ; S. C, 30 L. J., Exch. 139. § 8. Who may inaintaiu action for breach of promise. It has BREACH OF MARRIAGE PROMISE. 727 long been settled law, that where the promise to marry is mutual, an action for a breach of the contract may be maintained by a man against the woman, as well as by the woman against a man. Harrison v. Cage, 1 Ld. Raym. 386 ; S. C, 1 Salk. 24. And although a promise of marriage by an infant is not binding, and an action for the breach thereof cannot be maintained against an infant, yet, it is well settled that an infant may maintain such an action against the adult. Holt v. Ward, 2 Strange, 937; Pool V. Prail, 1 D. Chip. (Yt.) 252 ; Hunt v. PeaA'e, 5 Cow. 475. A single woman, to whom a married man represents that he is single, and promises marriage, may maintain an action against him for the breach of his promise. Blattmacher v. Saal, 29 Barb. 22 ; S. C, 7 Abb. 409 ; ante, 725, § 5. And this, notwithstanding the fact that she afterward became aware of his marriage, and did not repudiate her contract, but still agreed to marry him when she should be able to by reason of an expected separation from his wife. CooTier v. Davenport, 1 Heisk. (Tenn.) 368. The promise to marry being essentially personal in its nature, the common-law maxim actio personalis moritur cum per sona, is regarded as applicable to the action for its breach. The per- sonal representative of the injured party cannot, therefore, bring the action, unless, perhaps, special damage is alleged and proved. Chamherlain v. Williamson, 2 Maule & Selw. 408. Nor can the action be revived against the executors or administrators of the promisor. Smith v. Sherman, 4 Cush. (Mass.) 408 ; Wade v, Kalhjleisch, 58 N. Y. (13 Sick.) 282 ; Latimore v. Simmons, 13 Serg. & Rawle (Penn.), 183. § 9. Damages in action for. In action for a breach of promise of marriage, damages cannot be measured by a known standard, as in commercial cases, but the amount is peculiarly a question for the jury. Berry v. Da Costa, L. R., 1 C. P. 331 ; S. C, 1 H. & R. 291. And the courts are very unwilling to set aside a verdict in these cases, on the ground of excessive damages. Smith V. Woodfine, 1 C. B. (K S.) 660 ; Southard v. Rexford, 6 Cow. 254. The law allows punitive or vindictive damages to be assessed by the jury. lb.; Johnson v. Jenkins, 24 N. Y. (10 Smith) 252 ; Thorn v. Knapp, 42 N. Y. (3 Hand) 474 ; S. C, 1 Am. R. 561. And all the circumstances attending the breach, before, at the time, and after, may be given in evidence in aggra* vation of damages. Baldy v. Stratton, 11 Penn. St. 316 ; Tubbi V. Van Kleek, 12 111. 446 ; Wade v. Kalbjieisch, 58 N. Y. (13 Sick.) 282, 285 ; Reed v. Clark, 47 Cal. 194. Thus, the plaintiff 728 BREACH OF MARRIAGE PROMISE. may, for the purpose of enhancing damages, prove that she announced the fact of her engagement to her friends, and invited them to attend the wedding. lb. So, the length of time a mar- riage engagement existed is a proper element of damage for the breach thereof. Grant v. Willey^ 101 Mass. 356. A defense to an action for a breach of promise, that the plaintiff is unchaste, if not established by proof upon the trial, should be considered by the jury in aggravation of damages. Southard v. Rexfordy 6 Cow. 654 ; Dams v. Stagle, 27 Mo. 600. But it is held in a recent case, that such a defense, though unsuccessful, ought not, 'per se, to aggravate the damages, unless interposed in bad faith, from malice, wantonness, or recklessness. Powers v. Wheatly, 45 Cal. 113. See Simpson v. BlacJc, 27 Wis. 206 ; ThompUns v. Wadley, 3 N. Y. S. C. (T. & C.) 424. That seduc- tion may be proved in aggravation of damages, in an action for breach of promise to marry, has been held in some cases. See Sheahan v. Barry, 27 Mich. 217; Paul v. Frazier, 3 Mass. 73; Sherman v. Rawson, 102 id. 395; Espy v. Jones, 37 Ala. 379; Fkller v. McKlnley, 21 111. 308; Kelly v. Riley, 106 id. 339; S. C, 8 Am. R. 336; Matthews v. Crihhett, 11 Ohio St. 330. While it has been questioned or denied in other cases. See Cates v. McKinney, 48 Ind. 562; S. C, 17 Am. R. 768; Baldy v. Stratton, 11 Penn. St. 316; PerMns v. Hersey, 1 R. I. 493; Buries v. Shain, 2 Bibb (Ky.), 341. It would seem to be settled, however, that where, by statute, a woman has a right of action for her own seduction, such seduction cannot be given in evidence in an action by her for breach of promise of marriage, to enhance the damages, unless it is alleged in the pleading. Cates V. McKinney, 48 Ind. 562. See Lindley v. Dempsey, 45 id. 246. An instruction to the jury in an action for a breach of promise, that if they find for the plaintiff they should award her such damages as would place her in as good a condition pecuniarily as she would have been in if the contract had been fulfilled, has been held unobjectionable. Lawrence v. Cooke, 56 Me. 187, 195. But in Miller v. Rosier, 31 Mich. 475, such all instruction was held to be altogether too complicated and conjectural in its ele ments to be of service as a guide to the jury. The jury cannot take into consideration any damages sustained by the plaintiff, by reports raised since the commencement of the action. Greenup v. Stoker, 7 111. 688. And unless special damages are averred and stated, proof of damage to the health of the plaintiff, as a consequence of the breach of promise tc marry, is inadmissible. Bedell v. Poioell, 13 Barb. 183. BRIDGES. 729 CHAPTER XXXI. BRIDGES. ARTICLE I. OF THE GENERAL RULES OF LAW RELATING TO BRIDGES. Section 1. Definition of. A bridge, as known to the common law, was a structure over a river or other stream of water, having a foot-path for man and beast. Proprietors of Bridges v. Hobo- ken Land Oo., 13 N. J. Eq. 504. But it was held not essential to a bridge, in the legal sense of the word, that it should be a structure over water which flows at all times. Iteg. v. Derby- shire, 2 Q. B. 745; S. C, 2 G. & D. 97. As now used, the term "bridges" is one of comprehensive scope, and is defined as a "'structure erected over a river, creek, stream, ditch, ravine or other place, to facilitate the passage thereof; including by the term both arches and abutments." 1 Bouv. Diet. 222. And see Board of Chosen Freeholders v. Strader, 18 N. J. (Law) 108; Enfield Toll- Bridge Co. v. Ha.rtford d? New Haven Hallway Co., 17 Conn. 56. It is held, however, that the crossing of a river by a railroad track on piers is not a bridge within the meaning of a previous charter which makes the erection of any other bridge or bridges unlawful. Lake v. Virginia, etc., R. R. Co. , 7 Nev. 294; McLeod v. Savannah, etc., R. R. Co., 25 Ga. 445; Bridge Co. v. Hoboken Land Improvement Co., 10 N. J. 81; S. C. affirmed, 1 Wall. (U. S.) 116 ; Thompson v. N. Y. & Harlem R. R. Co., 3 Sandf. Ch. (N. Y.) 625. Bridges are either public or private. A private bridge is one 3onstructed for the use of one or more private persons ; and it is none the less a private bridge, although it may be occasionally used by the public. King v. hihabitants of Bucks, 12 East, 203. A public bridge is one that forms a part of the highway, and is common, according to its character, as a foot, horse, or carriage bridge, to the public generall}^, with or without toll. Rex V. Inhabitants, etc., of Yorkshire, 2 East, 342; 1 Bouv. Diet. 222. A bridge may be a public bridge which is used by the public only at such times as are dangerous to pass through the stream. Rex v. Northampton, 2 M. & S. 262. And it is Vol. L — 92 730 BRIDGES. held that a bridge used only on occasion of floods, and lying out of and alongside the road commonly used, is a public bridge. Rex V. Devon, R. & M. 144. A public bridge being regarded as a highway, the principles of the common law applicable to the latter is, in general, applicable to the former. § 2. How established. Public bridges may be established by legislative authority, or by dedication. Congress has the consti- tutional power to legalize a bridge. Clinton Bridge, 10 Wall. 454 ; and the legislative power of a State to authorize the erection of a public bridge is undoubted. See Harrell v. Ellsioorth, 17 Ala. 576 ; Flanagan v. Philadelphia, 42 Penn. St. 219; Erie City V. Swingle, 22 id. 384 ; Jones v. Keith, 37 Tex. 394 ; Wright V. Nagle, 48 G-a. 367; Strong v. Dunlap, 10 Humph. (Tenn.) 423 ; Piscataqua Bridge Co. v. iV. H. Bridge Co., 7 N. H. 36 ; Rogers v. Kennebec & Portland R. R. Co., 35 Me. 319 ; Wiscon- sin River Improvement Co. v. Lyons, 30 Wis. 61. And there are three cases in which authority from the legislature is neces- sary to erect a bridge over a stream : First. Where the stream is navigable. Second. Where the State owns the bed of the stream. Third. Where the right to take tolls is desired. Fort Plain Bridge Company v. Smith, 30 N. Y. (3 Tiff.) 44, 63. The power of erecting a bridge, and taking tolls thereon, over a nav- igable river forming the conterminous boundary between two States, can only be conferred by the concurrent legislation of both States. President, etc., v. Trenton Bridge Co., 13 N. J. Eq. 46; Dover v. Portsmouth Bridge, 17 N. H. 200; Middle Bridge Corporation v. Marks, 13 Me. 326. Although a State has the right to authorize the construction of a bridge over a navigable river within its own limits, yet the power conferred must be so exercised, that no more injury may be done to the rights of others than is necessary to accomplish the purpose for which it is granted. Care must be taken to interrupt navigation as little as possible. State v. Inhabitants of Freeport, 43 Me. 198 ; and for any unnecessary interruption the proprietors of the bridge will be held liable in damages, or the bridge may be abated as a nuisance, by injunction. See Reg. V. Belts, 22 Eng. Law & Eq. 240 ; Renwick v. Morris, 3 Hill (N. Y.), 621 ; S. C. affirmed, 7 id. 575 ; Blanchard v. West- ern Union Tel Co., 60 N. Y. (15 Sick.) 510, 515 ; Pennsylvania V. Wheeling, etc., Bridge Co., 13 How. (U. S.) 518 ; Devoe v. Pen- rose Ferry Co., 5 Penn. Law J. R. 313. The legislature of a State may authorize the erection of -a ne^ BRIDGES. 731 bridge, so near an older one as to impair or destroy the value of the latter, without compensation, unless the older franchise be protected by the terms of its grant. Charles Rmer Bridge Co. V. Warren Bridge^ 11 Pet. 420 ; 7 Pick. (Mass.) 344 ; Turner v. Pec7i, 1 Barb. Ch. (N. Y.) 549. See Parrott v. City of Laiorence, 2 Dill. 332. But a new bridge so erected, unless authorized by statute, IS unlawful, and may be enjoined as a nuisance. And if the older franchise vested in an individual or private corporation, be protected, or be exclusive within given limits, by the terms of its grant, the erection of a new bridge, even under legislative authority, is unconstitutional, as an act impairing the obligation of a contract. Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101, 111 ; Chenango Bridge Co. v. Lewis, 63 Barb. Ill ; Dyer v. Tuscaloosa Bridge Co., 2 Port. (Ala.) 296 ; Hartford Bridge Co. V. East Hartford, 18 Conn. 53 ; P iscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35. See Tripp v. FranTc, 4 T. R. 666. As to bridges established by dedication, see the subject of Highways, where the principles applicable to the dedication of both will be found fully stated. It ma}^ be remarked, however, that in the case of bridges their acceptance will not be pre- sumed from mere use, until they are proved to be of public util- ity. Williams v. Cummington, 18 Pick. (Mass.) 312 ; Dygeri V. ScJtenclc, 23 \Yend. 446 ; Rex v. Inhahitants, etc., of York- shire, 2 East, 342. See Bequea v. City of Rochester, 45 N. Y. 129 ; S. C, 6 Am. R. 52. § 3. Reparation of bridges. In England, by the common law, counties are chargeable with the repair of all public bridges, whether foot, horse or carriage bridges, unless they can show that other persons are bound to repair j)articular bridges. Rex v W. R. of Yorkshire, 2 East, 342 ; Rex v. Salop, 13 id. 95 ; Reg. v. Southampton, 14 Eng. Law & Eq. 116. In this country, the duty of repairing bridges is regulated by statute in the different States, and the burden is generally imposed upon towns or coun^ ties. See Norwich v. Commissioners, 13 Pick. (Mass.) 60 ; Bard- well V. Jamaica, 15 Yt. 438 ; State v. Boscawen, 8 Fost. (^. H.) 195 ; Hill V. Supervisors of Livingston, 12 N. Y. (2 Kern.) 52. But bridges owned by corporations or individuals are repairable by their proprietors. HeacocJc v. Sherman, 14 Wend. 58 ; Com- monmealtJi v. Neioburyport Bridge, 9 Pick. (Mass.) 142. See Brookins v. Central R. R. and Banking Co., 48 Ga. 523. So the individual or corporation, for whose exclusive benefit a bridge 732 BEIDGES. is made over a highway, must keep it in repair, and is liable for injuries caused to third persons in consequence of its being out of repair. Dygert v. ScJienck^ 23 Wend. 446 ; Heacocli v. Sherman^ 14 id. 58 ; Perley v. Chandler, 6 Mass. 453. But a bridge, though erected by individuals, yet if dedicated to the public, used by the public, and found to ber of public utility, must be repaired by the public. State v. Campton, 2 N. H. 513. In Pennsylvania, it is held that in the absence of special obli- gation by prescription or legislative enactment, the duty of repair- ing public bridges falls on the public, either on the county, city, or borough, in which the bridge is erected. Meadmlle v. Erie Canal Co., 18 Penn. St. 66. See BroomalVs Appeal. 75 id. 173. § 4. Remedies for neglect to repair. In all cases, the parties chargeable with the repair of bridges are under an obligation to constantly keep them in such a state of repair, as renders them safe and convenient for the service required of them {People v. Hillsdale, etc., Tump. R. Co., 23 Wend. 254) ; and for a neglect of this duty, the parties render themselves liable to indictment. People V. Cooper, 6 Hill (N. Y.), 516 ; Commomcealth v. Neiobitry port Bridge, 9 Pick. (Mass.) 142 ; State v. King, 3 Ired. L. (N. C.) 411. See State v. Seawell, 3 Hawks (N. C), 193. So, it has been held that they may be compelled to repair by mandamus. Brander v. Chesterfield Justices, 5 Call (Ya.), 548 ; People v. Supervisors of Dutchess, 1 Hill (N. Y.), 50. See People v. Dutchess & Columbia P. R. Co., 58 N. Y. (13 Sick,) 152. But see Reg. v. Trustees, etc., 12 Ad. & El. 427. And if the duty to repair be imposed by charter upon a corporation, it may be proceeded against for neglect by quo warranto for the forfeiture of its franchise. People v. Hillsdale, etc., Tump. R. Co., 23 Wend. 254. Or damages may be recovered against it in an action in favor of any person sustaining special injury from the neglect {Townsend v. Susquehanna Turnpike, 6 Johns. 90 ; Williams V. Turnpike Corporation, 4 Pick. [Mass.] 341) ; and in many of the States a similar action is given by statute against public bodies chargeable with the repairs. See Farnum v. Concord, 2 N. H. 392 ; Chidsey v. Canton, 17 Conn. 475 ; Kelsey v. Glover, 15 yt. 708 ; Sawyer v. Northfield, 7 Cush. (Mass.) 490. In an action for damages arising from a defect in a bridge, ex- emplary damages may be given, in case the defendants have been guilty of gross negligence. Whipple v. Walpole, 10 I>r. H. 130. Where the owner of land over which a public road passes, BRIDGES. 738 digs a race-way across the road, and builds a bridge over it, lie is liable for damages arising from the imperfection of the bridge. Dygert v. ScTienclc, 23 Wend. 446. But the owner of a private bridge is not liable for injuries to a person crossing it, to whom the owner had given no special right to pass, or to have it kept in repair. Louisville, etc., Canal Co. v. Murphy, 9 Bush (Ky.), 622. A bond given to build a bridge and keep it in rejjair a given time will bind the obligor to rebuild, if the bridge be washed away even by an extraordinary flood in such time. GatJi- %origM V. Callaway Co., 10 Mo. 663. A bridge erected by a volunteer in a highway, where it was needed, becomes the property of the municijDality where it is allowed to remain for years, and should be kept in repair by such municipality. Requea v. City of Rochester, 45 N". Y. (6 Hand) 52; S. C, 6 Am. Kep. 52. And if a traveler is injured, without fault on his part, in consequence of the removal of planks by unknown persons, the city, being bound to keep the bridge in repair, will be liable although no actual notice of the defect is given, sufficient time having elapsed to render the condition of the bridge notorious. lb. § 5. Toll-bridges. A toll-bridge, built in pursuance of an act of the legislature, is a public highway. Thompson v. Matthews^ 2 Edw. (iS". Y.) 212. And a State legislature has authority to grant, b;^ charter, an exclusive right to erect a bridge and take tolls, and such a charter, if granted without reservation or quali- fication, is a contract within the provision of the constitution of the United States, prohibiting State laws to impair the obliga- tion of contracts. Binghamton Bridge, 3 Wall, (U. S.) 51 ; reversing S. C, 27 N. Y. (13 Smith) 87 ; 26 How. (N. Y.) 124. And see cases cited, ante, § 2. It is immaterial whether the instrument by which the public faith is pledged, is in terms a contract or in form a mere legislative enactment ; in either case it is equally a contract within the meaning of tlie constitution. Bridge Co. v. HohoJcen, etc., Co., 13 N. J. Eq. 81. And where one has a grant of a bridge, with the exclusive right of taking toll, the erection of another bridge so near it as to materially affect or take away its custom, is a nuisance ; and the court will grant an injunction to protect the enjoyment of the franchise Newhurgh Turnpike Co. v. Miller, 5 Johns. Ch. 101 ; Mayor^ etc., of N. Y. V. N. Y. & Staten Island Ferry Co., 49 How. (N. Y.) 250 ; Smith v. HaioUns, 3 Ired. Eq. (X. C.) 613. But it is held, that such franchise is not interfered with by a legislative 734 BRIDGES. grant of a right to build a railroad bridge. McLeod\. Sataniiait^ etc., R. R. Co., 25 Ga. 445 ; LaA:e v. Virginia, etc., R. R. Co., 7 !N"ev. 294, And a franchise to erect a bridge and take tolls, being- property, may be taken for public use, like other property, if adequate compensation is made to the proprietor. Piscataqua Bridge Co. v. IS'ew Hampshire Bridge, 7 N. H. 35. And see Jones V. Keith, SI Texas, 394. The payment of tolls can be lawfully enforced only at the gate or toll-house. State v. Dearhorri, 15 Me. 402. And where a charter granting the right to erect a toll-bridge requires that the rates of toll shall constantly be kept exposed to the view of passengers at the place where the tolls are collected, no action can be maintained for the recovery of the penalty, for forcibly passing the bridge without paying toll, unless the corporation has complied with this requirement. Middle Bridge v. Brooks^ 13 Me. 391. And see Bonham v. Taylor, 10 Ohio, 108 ; Worcester v. Essex Merrimac Bridge, 7 Gray (Mass.), 457. A bridge company may bind themselves by a contract to permit certain persons to pass their bridge free of toll. Central Bridge Co. v. Sleeper, 8 Gush. (Mass.) 324; Same v. Bailey, id. 319. And such exemption may exist by a provision of the charter of a bridge company; in which case the exemption is to be liberally construed. Railroad Company v. Jones, 4: Rich. Eq. (S. C.) 459; Wooster v. Van Vechten, 10 Johns. 467 ; Salmon v. Mallett, 2 Murph. (N. C.) 372 ; Cayuga Bridge Co. v. Stout, 7 Cow. 33. In the absence of any special provision in the charters of toll- bridge corporations, there seems to be no essential difference between the obligations and liabilities resting upon them and those of a town charged with the maintenance of a bridge. Orcutt V. Kittery Point Bridge Co., 53 Me. 500. See State v. Turnpike Co., 16 Ohio St. 308 ; Chase v. Bridge Co., 6 Allen (Mass.), 512. They are bound to use at least ordinary care and dili- gence in the construction of the bridge, and in keeping it in proper order. Bridge Co. v. TF/ZZ/am^, 9 Dana (Ky.), 403; Grigshy \, Chappell, 5 Rich. (S. C.) 443. And the mere opinion and belief of the proprietors of the bridge that it is safe will not excuse them from liability for injuries arising from its defects ; they should avail tliemselves of the judgment of such as are disin- terested, skillful, and experienced in such matters. Bridge Go. V. Williams, 9 Dana (Ky.), 403. See Stack v. Banks, 6 Lans. (N. Y.) 262 ; Raplio v. Moore, 68 Penn. St. 404. While the proprietor of a toll-bridge is making needful repairs, BRIDGES. 735 and part of the flooring is ofi", and timbers out of their usual place, but in plain sight, and the collection of toll discontinued, he is not liable to one who, in attempting to cross on planks laid down for the workmen's use, falls through and is injured. Tift v. Jones, 52 Ga. 538 So, toll-bridge corporations are not bound to erect and maintain railings upon their bridges for passengers to lean against or rest upon while they stop to recover from fatigue. And, if a person uses them for such purpose, he does it at his own risk. Orcutt v. Kittery Point Bridge Co., 53 Me. 500. The owners of a steamboat, licensed to run on a navigable river, notified the owners of a railroad bridge, crossing the river, to make a draw in their bridge as required by their charter. Some time afterward, the owners of the boat arriving with it at the bridge, and not being able to pass, no draw having been made, tore down part of the bridge and passed. This was held a lawful abatement of a nuisance. State v. ParroU 71 N. C. 311 ; S. C, 17 Am. R. 5. 736 CAJNALS. CHAPTER XXXII. CANALS. ARTICLE L GENERAL RULES OF LAW RELATIA^G TO CANALS. Section 1. Definition. A canal is defined as " an artificial cut or trench in the earth for conducting and confining water to be used for transportation." 1 Bouv. Diet. 236. The importance of canals, as a means of inland navigation, has attracted attention from the earliest times. They were known in Egypt at a very early period, and modern nations have been prompt in availing themselves of the advantages to be derived from their construc- tion and use. When constructed by public authority, they are, in law, regarded as public highways, with the right of tolls attached. Rogers v. BradsTiaw^ 20 Johns. 735 ; Riddle v. Pro- prietors of Locks ^ etc., 7 Mass. 169 ; Commonwealth v. Fisher., 1 Penn. 462 ; Cooper v. Williams, 4 Ham. (Ohio) 253 ; Rex v. Kent, 13 East, 220; Rex v Chelsea Water Works, 5 B. & Aid. 156. Canal-boats are held not to be within the description of " vessels of the United States," mortgages of which are declared by act of Congress to be void, unless recorded in the office of the collector of customs, where such vessels are registered or en- rolled. And there is no law which requires canal-boats to be registered in the collector's office of the United States. Hicks v. Williams, 17 Barb. 523. § 2. Construction and management of. Public canals are con- structed and managed under the provisions of statutes and chart- ers enacted for the purpose. In this country they are constructed and managed either by the State itself, acting through the agency of commissioners, or they are wholly controlled by incorporated companies. In either case, private property may be taker for the construction of the canals, but a strict compliance with the statute authorizing such taking is required. See Farnum v. Blackstone Canal Corp., 1 Sumn. 46 ; Binney v. Chesapeake & Ohio Canal Co., 8 Pet. 201. And the authority cannot be dele- gated, unless there be special power of substitution. Lyon v. Jerome, 26 Wend. 485 ; St. Peter v. Denison, 58 N. Y. (13 Sick. CANALS. 737 416. So, in general, where lands are thus taken, an easement only in the lands through which the canal is constructed is acquired. The land-owners retain the right to make any use of the land or water which does not interfere with the public pur- poses to which they have been appropriated. Hence, they are not liable to the proprietors of the canal for damages for cutting ice for sale in the canal. Edgerton v. Huff^ 26 Ind. 35. See Brindierhoff v. Wem%>le^ 1 Wend. 474 ; Western Penn. R. R. Co. V. CMlds^ 3 Pittsb. (Penn.) 168. But, although the title remains in the original owner until he is paid therefor, he cannot sustain an action against the party taking the same for an injurj^ thereto. Ligat v. Commonwealth^ 19 Penn. St. 456 ; Turrell v. Norman, 19 Barb. 263. And the legislature have the exclusive power to determine when land may be taken for a canal or other public use, and the courts cannot review their determination in that respect. Hanlcins v. Lawrence^ 8 Blackf. 266 ; Harris v. Thomp- son, 9 Barb. 350. Twenty years' user of an opening in the bank of a canal to supply it with water from a swamp as a reserve, notwithstanding an occasional overflow, was held not sufficient to establish such a prescriptive right in the canal company as to entitle them so to increase, either intentionally or negligently, such outflow, as to cause the water to escape from the swamp and submerge the land of an adjacent proprietor. Savannah, etc., Canal Co. v. Bourquin, 51 Ga. 378. And it is held, that a canal company, having power under their charter to enlarge their canal and to take private property on making compensation, are liable to the owner of lands which are inundated and injured by such enlarge- ment, though it is made with all reasonable care and skill. Sei- dell V. Delaware, etc., Canal Co., 24 Barb. 362. See Chase v. Sutton Manuf. Co., 4 Cush. (Mass.) 152. § 3. Keeping in repair. As it regards the repair of a canal, a canal commissioner has two classes of duties imposed upon him ; the duties of one class are imperative, while those of the other depend on his judgment and discretion. In cases where the duties are imperative and absolute, if he neglects them, he is responsible to any one who suffers from his neglect. Griffith v. Follett, 20 Barb. 620. It is incumbent upon him to examine 6uch portion of the canal as is committed to his care, and to decide, from such examination, the necessity for any particular repair, and act accordingly. His duty to repair is imperative when there is an obstruction to navigation in the canal, or when Vol. L — 93 738 CANALS. there is a breacli in tlie banks rendering passage upon it difficult or impossible. lb. See Follett v. People, 17 Barb. 193 ; S. C, 12 IS". Y. (2 Kern.) 268 ; French v. Donaldson, 57 N. Y. (12 Sick^ 496. If a canal be built across a private road, the owner of the pri- vate road can compel the canal owners to bridge it. HahershaTn V. Savannah, etc., Canal Co., 26 Ga. 665. But where a highway is laid out over a canal after its construction, the owners of the canal are under no obligation at common law, either to construct or maintain a bridge over the canal. Morris Canal Co. v. State, 4 Zabr. (N. J.) 62. See King v. Kerrison, 3 M. & S. 526. § 4. Tolls. As it regards the right of the proprietors of canals to tolls, the rule is that they are entitled to take them, only as authorized by statute ; and any ambiguity in the terms of the statute must operate in favor of the public. Perrine v. CTiesa- peaJce, etc.. Canal Co., 9 How. 172; Myers v. Foster, 6 Cow. 567; Delaware, etc.. Canal Co. v. Pennsylvania Coal Co., 21 Penn. St. 131 ; Canal Co. v. Wlieeley, 2 B. & Aid. 792. Thus, a canal corporation, not having been empowered by its charter to de mand tolls on passengers, or on vessels by reason of their pas- sengers, cannot lawfully exact such tolls. Perrine v. Chesa- peaTce, etc.. Canal Co., 9 How. 172. The term "toll" does not necessarily import an immediate payment. As in other cases, the period of payment depends on the understanding of the parties. Penn. Coal Co. v. Delaioare, etc.. Canal Co., 29 Barb. 589 ; S. C. affirmed, 3 Abb. Ct. App. 470 ; 't. Keyes, 72. In the absence of any thing to indicate a different mtention, tolls are payable at the time the amount is ascer- lainable, without re:terence to the times of passage. lb. § 5. Negligence. A company maintaining for their own profit a canal, open to the public for navigation on payment of tolls, are bound only to take reasonable care that it may be navigated with- out danger, and are not responsible for accidents which do not arise from the want of this reasonable care.* They are not, like common carriers, subjected to the responsibility of insurers. Lancaster Canal Co. v. Parnaby, 11 Ad. & El. 223 ; Exchange Fire Ins. Co. v. Delaware, etc.. Canal Co., 10 Bosw. (N. Y.) 180; Weitner v. Delaware, etc., Canal Co., 4 Rob. (N. Y.) 234. § 6. Liability of officers in charge. The rule of law is well settled, that a contractor employed by the State to put a canal in repair is liable to an individual who sustains special damages by reason of tl>.e contractor's neglect to perform his duty. Ful- CANALS. 739 ton Ins. Co. v. Baldwin, 37 K Y. (10 Tiff.) 648 , Conroy t. Gale, 5 Lans. (N". Y.) 344 ; RoUnson v. Cliamberlln, 34 N. Y. (7 Tiff.) 389. And it is held that in order to render a canal contractor liable for damages resulting from defects in a canal bridge, it is not necessary to establish either that the bridge was so defective as to be apparently so to every body, or that notice of its defect- ive and unsafe condition had been brought to the contractor or his agents. It is sufficient if it appears that the defects were such as the contractor might, by reasonable examination and tests, have discovered. Stack v. BanTcs, 6 Lans. (N. Y.) 262 ; French V. Donaldson, 57 N. Y. (12 Sick.) 496. The superintendent of repairs on a canal, negligently allowing an obstacle to remain in the canal until he receives orders for its removal from the canal commissioners, is liable to parties whose boats are damaged by the obstacle. STiepherd v. Lincoln, 17 Wend. 250 ; Adsit v. Brady, 4 Hill (N. Y.), 630. And the fact that a boat owner was attempting to pass his boat through a canal on Sunday in violation of law will not prevent his recov- ery of damages occasioned by a break in the embankment result- ing from the negligence of the servants of the canal company Uc Arthur v. Oreen Bay, etc., Canal Co., 84 Wis. 139. INDEX TO VOL. L A.BATEMENT: p.ob. Of nuisances 6C Reasons for allowing abatement of nuisances 61 When notice or request to remove a nuisance necessary before . 61 Of nuisances from omission, when allowed 61 Of a private nuisance must merely restore former right 61 Pulling down an inhabited dwelling 61 Removing obstructions from highways 62 Pleas or answers in 158 ABANDONMENT : Of contract to marry 726 ABSCONDING DEBTORS: Who are 416 Intent necessary to constitute 416, 417 Attachments against 416 Meaning of the term as used in relation to attachments 416, 417 When attachment will lie against partners as 417 Presentment of biUs or notes where makers or acceptors are 635 A.BSENT DEBTORS: Attachments against 415 Who are, within the statutes relating to attachments 415, 416 A.CCEPTANCE (See Bills and Notes) : Liability of drawee on acceptance of bill payable in chattels 575 Effect of general acceptance of bills payable in chattels 575, 576 Absolute or conditional .... 576, 625 Order for delivery of goods does not require 576 Holder of order may require 576 Distinction between bills and orders for goods as to 577 Not necessary where an order is given on a particular fund 576, 577 Of a protested bill is valid 592 Of bills after indorsement 592 Of forged bills 600, 601, 643 Of accommodation paper 610, 617 Presentment of bills for 618 Duty of payee of bill as to presentment for 619 Bills must be presented for, within a reasonable time 619 Time of presenting bill for 619, 620, 632 Place of presentment of bill for 620 By destroying or refusing to return bill ^ -^.. 621 742 IT^DEX ACCEPTANCE — Continued. page. Contract created by 621, 622 Who may accept bills 621, 622 By partners 622 Agreements for 622, 623 By parol, valid at common law 622 What constitutes, in New York 623 On separate paper, when binding * 623 Promise to accept, when equivalent to 623 Writing name across the bill, amounts to 623 Of check, not necessary 624 General and conditional 625 Defenses in action against acceptor 626 Proceedings on non-acceptance 626 Notice of non-acceptance 626-629 Accommodation drawer entitled to notice of non-acceptance 629 Of note of third party, how far payment 568, 569 Of individual note for partnership debt 570 ACCEPTOR (See Acceptance ; Bllla and Notes) : Defined 536 Who may become an acceptor 621 What form of acceptance will bind 622, 623 Defense by 626 Liable on acceptance of forged bill 508, 600, 626, 643 Complaint in action against 635, 688 Presentment of bill to, for payment 635 Should ascertain right of holder to receive payment of bill 642 ACCIDENT: Actions at law, founded upon 160 Injuries resulting from unavoidable accident, not actionable 160 arising from negligence, actionable 160 In shooting at butts 160 Accidental injuries caused by glancing ball shot at a mark 160 Accidental discharge of gun 160 Accidental injury in prosecution of lawful act 161 Injuries in burning over fallow ground 161 Accidental injuries from lawful use of fire 161 In driving along highway 161 Deposit of property on lands of others by flood 161 Explosion of steam-boiler 161 Breaking away of dams 161 Promise to make reparation for damages resulting from 162 Actions in equity, founded upon 162 Meaning of the term, as used in equity 162 Equitable jurisdiction, founded on 102 When equitable interposition against, may be invoked 162 Jurisdiction once acquired will be retained 163 Lost instruments under seal .... 163 Foundation of equitable jurisdition in case of lost instruments 163 INDEX 743 • ACCIDENT — Continued. page. Remedies in case of lost instrument at law and equity 163 When equity will relieve against loss of deed 164 When new deed of land will be ordered executed 164 Remedy on lost negotiable notes 165 Statutory remedies of the several States upon lost notes 165 Actions upon lost notes 166 Relief against penalties and forfeitures ] 67 Executors and administrators, errors in payment 168 Recovering back moneys paid under mistake 168, 169 Defective execution of powers resulting from 169 In transfer of bills and notes 171 When no action lies 171 Preventing fulfillment of contract 171 Covenants to repair where building destroyed 171 Law rendering performance of contract more burdensome, does not excuse default 171 Covenants to pay rent where building destroyed 172 Arising from negligence, no ground for relief 172 Where the equities are equal 172 Relief as between hona fide, purchaser of legal title and owner of equitable title ' 172 When an excuse for failure to give notice of dishonor of bill or note 631 ACCOMMODATION PAPER (See BUls and Notes) : Liability of maker or indorser of 610, 611, 612, 617 Drawer of, entitled to notice of non-acceptance 629 ACCORD : Defined 66 Requisites of 66 Effect of accord and satisfaction 66 ACCOUNTING: Actions relating to, oi* founded upon 173 Action of account obsolete at law 173 When the common-law action would lie 173 When the action does not lie 173 Actions of account in equity 174 Jurisdiction of courts of equity over 174, 175 No remedy at law 174 Mutual accounts 175 Equity will entertain jurisdiction where accounts are complicated, though assumpsit would lie 176 Where items are all on one side 175, 176 Appropriation of payments 176 Party paying has the right of appropriation 177 Creditor may make appropriation if debtor does not 177 Law makes appropriation where parties do not 177 Application of payments according to priority of time 177 Effect given to the intention of parties in making appropriation of pay- ments 177 744 inde:^:. ACCOTTSTT^G— Confinued. f4GV. Application of payment to unsecured demand. . . . . . , 177 General payment not applicable to illegal demand - . . 177 Application to debt within the statute of frauds . . 177 Application to debt barred by statute of limitations 177 Application after discharge in bankruptcy 178 Payment by partner, when applied to individual debt , . . 178 Presumption where there are a variety of transactions in one general ac- count 178 Between principal and agent 178, 252 When agent may be compelled to submit to 179 Apportionment ISO Apportionment of entire contracts 180, 181 Apportionment of apprentice fee 181 Apportionment of rent , 181, 182 Contribution . 182 (See Contribution.) Foundation of the doctrine of contribution ,. 182 Xo right of contribution between wroug-doers 183 Contribution between purchasers of mortgaged premises 183 Doctrine of general average 183 Contribution between sureties 184 Liens 186 Accounts pertaining to rents and profits 186 In casps ,of w,aste 187 When no action can be maintained 187 Defenses to action of 188 ACCOUNTS : What is a matter of account 189 What is not a matter of account 189 Books of account, how kept 190 Form of charge immaterial 190 Books, how proved 190 Proof of book account in New York 191 ACCOUNTS STATED: Actions upon, or relating to, an account stated 191 Open account defined ' 191 Stated account defined 191 Eequisites of a stated account .... - 191 Accoujit rendered as an admission 192 Conversion of open account into an account stated 192 Proof of account stated 192 Infant not bound by account stated 192 Need not be signed 192 Need not be mutual or cross demands 193 When an acknowledgment of indebtedness will amount to 193 Effect of admisions of correctness of an account 193 Effect of retaining a statement of an account without objection 193, 194 Couc.uaiveucob of 195 IISTDEX. 745 ACCOTT^TS ST ATIID— Continued. Pagr Not an estoppel 195 May be impeached for mistakes or errors , 195 Is binding on guarantor if binding on original parties 195 Balance struck on l.eai ing before referee 196 Opening an account stated not favored 196 When equity will or will not open 196, 197, 198 Opening settled accounts 197 Effect of delay in detecting errors 197 Mistake in law no ground for opening settled account 197 Not opened after books of one party destroyed 197 Account not opened after sale on execution 197 Opening account examined by both parties 197 Stale accounts not examined 198 Proof of fraud sufiBcient ground to open 198 ACQUIESCENCE : In boundary lines, effect of 717 ACTIONS (See Courts of Latu and Courts of Equity) : Nature and definition of 9 Classification of civil actions 10 Definition of a civil action 10 Requisites to the maintenance of 10 Who may bring 10 Distinctions between actions and suits 10, 12 Real, personal and mixed 11 Ex contractu and ex delicto 11 Local and transitory 11 lyi personam and in rem 11 Legal 12 Defects in legal rules and principles, how supplied 12 Nature of common-law remedies 12 At law relate to some act done 13 Wrongful act must be committed to sustain 13 Remedies obtainable in 13 14 Compensation in damages given in 14 Violation of a right not prevented in 14 15 Relief in, remedial, not preventative 14 Afford no relief outside of general rules 14 Judgments in, uniform, simple and invariable . . 14 Specific performance not compelled in 15 Legal rules not adapted to equitable cases 16 Termination of powers of court in 16 Extension of remedies by common law 16 Exceptions to general legal rules 17 Tries questions of fact by a jury 18 Legal remedies may exist, and yet be insufficient 19 Legal and equitable remedies in specific cases contrasted 19 Eqaitable actions or snits 20 Courts of equity act on the person independently of damage, as a remedy, 2C Vol. I. —94 746 INDEX. ACTIONS — Continued. page. !May be maintained to prevent a violation of a right 20 Advantages of equitable over legal remedies 21, 22, 23 Compelling person to convey lands situate in another State 21 To compel performance of acts specifically 21 To restrain commission of wrongful acts 23 Character of relief obtained in 24, 25, 26 No absolute right to trial by jury in 24 Governed by vt^ell-settled rules and principles 26 Mode of relief in 28 General rules and maxims of equity , 28 The uuiou of legal and equitable remedies 29 Mode of uniting the two systems 29 Principles of law and equity unchanged 30 Powers of the court not enlarged by union of the two systems of practice, 31 Effect of the union on proceedings in Federal courts 31 Joinder of actions, whether legal or equitable 32 The right of action 35 General considerations as to the right to maintain 35* Malice in the doing of a legal act does not give right of action 35 Injuries sustained from acts done by consent 36 Existence of facts sufficient to sustain 36 For injuries to the person, or personal rights 37 Relating to property, real or personal 37 Founded upon contracts 38 What torts are actionable 2, 38 Injuries for which no action lies 38. 39 JDamages too remote to give right of 39 Contributory negligence of the plaintiff 40 Continuing tortious acts , 40 Existence of the right of 40 Matters to be considered before bringing 41 Cumulative or exclusive remedies 42 When statutory remedy only can be followed 42 Illegality of ground of 43 Leave to bring or defend 43 Parties to 43 Pleadings in 44 Evidence in 44 Jurisdiction of 44 (See Jurisdiction.) Remedies without action 52 (See Remedies.) Fonnded upon torts 38, 131 (See TorU.) For violation of a legal right 132 For violation of a public duty 133 For breach of private compact or duty 134 For torts flowing from contriict 135 INDEX. 747 ACTIONS — Continued. page. Privity as an ingredient in actions for tort 136 On false warranties 137 For Iraud and deceit 138 Novelty of 140 Fictitious 141 For damages arising from illegal or wrongful acts 142 Rightful act no ground of 143 Legislative authority for acts done 145 Consent of injured party a bar to 146 Demand or notice before 146 Splitting causes of 146 Damages not caused by wrongs give no right of 146 Wrongs without damage, actionable 147 Damages, when too remote to maintain 148 General principles relating to the defense of 157 Defenses generally , 157 Pleas or answers in 158, 159 Foonded upou accident 160 (See Accident.) On lost bills and notes 165, 166, 602, 603 On lost instruments under seal 163 Helatiug' to or founded upon an accounting 173 (See Accounting.) Relating to accounts^ or accounts stated 189 (See Account.) For adultery ,199 (See AdulteTy.) Upon bonds 695 (See Bonds.) For breach of promise to marry 722 (See Breach of Marriage Promise.) ACTIONABLE WRONGS. (See T(yrts.) ADMINISTRATION. (See Assets, Administration of.) ADMINISTRATORS : Contracts by 78 Equitable relief against errors in payment by 168 Attachments against 421 May indorse note of intestate 587 Transfer of note by one of several, a transfer by all 587 When liable on their mdorsement 588 Bound by bond of their intestate 670 ADMISSION (See Attorneys) : Of attorneys .* 431 By attorneys 440 ADULTERY : Actions for 199 Proof of marriage 19fi 748 INDEX. A.DULTERT - - Continued. paos At common law a mere civil injury 199 Action of, may be maintained after dissolution of marriage „ . . . . 199 Husband must be without fault to maintain action for 199 Consent or connivance of husband defeats action 200 How far separation by agreement affects right of action 200 111 treatment of wife goes to the question of damages, but not to the right of action 200 On the part of the husband aflfects the question of damages only 201 Condonation of offense does not bar action , . 201 Proof of 201 Proof of adultery generally presumptive 201 From what acts and circumstances adultery may be presumed 201 Confessions of wife not evidence against defendant 202 Letters of wife, how far evidence 202 Damages in action for 203 Damages measured by injury sustained 203 What are circumstances of aggravation 203 What may be shown in mitigation of damages 204 Death of wife pending action for 204 ADVANCEMENT : General rules relating to 205 Defined 205 Voluntary transfer of property whether a gift or 205 When conveyance of land by parent to child constitutes 205, 206 What is not 206 Creates no debts to the person making it 206 Trifling gifts not charged as 206 A gift for the purpose of pleasure is not 207 Moneys expended for education of child 207 In what made 207 To whom made 207 Gifts to grandchildren , 207 By whom made 207 Value of, how estimated 208 Presumptions as to 208 Parol evidence to show 209 Presumption of, how rebutted 210 No particular form of words necessary to constitute 210 Hotchpot defined and considered 210 Failure of 212 Interest on, not allowed 212 &.GENCY: General principles relating to principal and agent 213 Nature of an agency 213 Who may be a principal ... 214 Cannot be created by persons under disabilities 214 When married woman may create 214 Who may be an agent 214 INDEX. 749 AGENCY — Continued. PA'Je. Persons under disabilities may be agents 214 Wife may be agent of husband 214 Husband may be agent of wife , 216 Effect of war on 215 To do ar illegal act 215 Cannot be created by partner for performance of partnership duties 215 Agent cannot delegate his authority . . 215 General and special agencies 216 Special agent may have general authority in respect to a particular thing. . 216 Different kinds of agents 217 Authority conferred on two or more agents, how exercised 218 Appointment of agents 218 When the appointment of the agent must be by deed or under seal 218 When appointment may be by parol 219 Appointment by corporations 219 Express or implied authority of agents 219 Ratification of unauthorized acts 219 Nature and extent of agent's authority 220 Acts of agent within the scope of his authority 220 Implied authority of agents 221, 222 Authority, of a cashier of a bank 221 Authority of agent employed to collect a debt 221, 224, 225 Authority of agent employed to make purchases 222 Authority of agent employed to sell lands 222 Authority to sell implies authority to warrant 222 Authority to sell upon credit 223 Authority of merchants' clerk . , 223 Limitation of powers of agents acting under special authority 223 Authority to draw checks, not authority to overdraw 223 Authority of agent, when limited 224 Construction of general terms granting authority 224 Power of attorney to sell effects does not authorize sale of lands 225 Verbal authority to sell lands does not give power to contract 225 Construction of powers of attorney 225 226 General agent cannot employ counsel for servant of his principal 226 Power of agent to bind principal for medical aid 226 Notice of extent of agent's authority 226 Where authority of agent is a matter of record 227 Effect of private instructions to agent 227 Principal bound by acts within apparent authority conferred 228 Ambiguous authority construed against principal 228 Usage or custom as a means of interpreting the authority of agents. . 228, 229 Parol evidence to enlarge authority 229 Written authority not enlarged by evidence of usage 230 Acts to be done in a foreign country or State 230 Extent of authority, how far implied 230 Ajthority must be implied from facts which have occurred 231 Silence may be construed as an authority 231 Knowledge of agent, knowledge of principal 231 750 i:NrDEX. AGENCY — Continued. PAGE. Exercise of extraordinary powers in emergencies 232 Ratification of assumed authority 232 Eatification by principal after full knowledge equivalent to express authority, 232 Katificatioa must be entire 233 Ratification of part of unauthorized transaction is a confirmation of the whole, 233 Ratification of unauthorized act under mistake 233 No ratification possible where there is no assumption of agency 233 Retaining fruits of unauthorized act, a ratification 234 Ratification once made cannot be re-called 234 Notice of dissent must be given within a reasonable time 234 Eatification relates back to original transaction 234 When ratification must be under seal 234 Agent's declarations do not prove authority 234 Duties of agents 235 Agent must act in person 235 Agent cannot delegate power requiring the exercise of judgment and dis- cretion 236 How an agent should exercise his authority ....... 236 Business of the agency should be transacted in name of the principal .... 236 Sealed instrument must be executed in name of principal 237 Execution of instruments not under seal 237 Execution of commercial contracts and paper 238 Personal liability of agent how avoided 238 Parol evidence to charge principal 238, 239 Coupled with an interest 239 Agent must act within the scope of his authority .... 240 What diligence and skill required of an agent 240 Agent contracts for reasonable skill and ordinary'diligence 240 What is reasonable skill 241 What is ordinary diligence 241 Knowledge of principal of incompetency of agent 241 Incidental duties oj" agents 241 Agent should keep his principal informed of his acts 241 Agent should not mix fiinds of his principal with his own 241 Transactions of agents 242 Duty of agent to adhere to instructions 242 Liability of agent for unauthorized acts 242 Unauthorized acceptance of conditional acceptance of bill 625 Duty of priucipal to give clear instruction to agent 242 Intent to benefit piincipal, no excuse for disregarding instructions 242 Agent not bound to do immoral or illegal act 243 Principal responsible for authorized illegal act 243 Effect of usage 243 Conformity to usage, in absence of instructions 243 Sub-agents or substitutes 243 Liability of agent for acts of substitutes 244 Persumed authority of bank to em[)loy sub-agent to collect draft at place of payment 244 Negligence of bank in collectiou of a note 244 INDEX. 76]- AGENCY — Continued. pack Implied authority to employ auctioneer to make sale 244 Losses, by whom borne 244 Principal must bear losses occurring in course of 244 Agent not responsible for insolvency of purchasers 245 Receiving confederate money in payment 245 Loss of money forwarded by letter 245 Liability of agent for moneys deposited to the credit of principal 245 Adverse interest by agent not tolerated 245 Agent cannot act for his principal and himself 246 Agent employed to purchase cannot sell his own property 246 Agent employed to sell cannot purchase 246 Cannot act as agent for two parties having adverse interests 247 "When attorney may act as counsel for adverse parties 247 Agent for purchaser and seller 247 Real estate agent may act for buyer and seller 247 Employment of agent of another, with knowledge of agency , 248 Profits of business belong to employer 248, 249 Principal not entitled to mere gifts to agent 249 Liability of agents to their principals 249 Liability of agent for neglect of duty and want of skill and diligence .... 250 Contracts of sale between principal and agent 250 Cannot be purchaser at sale caused by his fraud or neglect 250 Liability for injuries to goods deposited in improper place 250 Liability of warehousemen for neglect of servants to rescue goods from fire 250 Liability of agent for mistake in satisfaction of a mortgage of his prin- cipal 2o0 Liability of agent for bad faith and mismanagement 251 Receipt of depreciated currency for debt 251 Liability of cashier for neglect by which an indorser of a note is discharged 251 LiabiUty of banks for negligence , 251 Agent not liable unless there be real and not proba'ble loss 252 A ccounting by agents I'' 8, 252 Duty of agent to Wep and render account of 252 Presumption from refusal to account 252 Agent should give notice of collections made 252 Agent chargeable with interest on moneys collected 252 Agent bound to pay over moneys collected 252 Agent cannot set up title in a siranger to moneys collected . 253 Must pay over moneys paid to him on illegal contract 2.53 When demand is necessary to render agent liable 253 When demand necessary to render attorney liable to action 254 Defenses of a??ents against principals 25£ Illegality a defense for refusal to act 255 Illegality of transaction no defense against action to recover moneys received 25o If no damages results from breach of instructions no action lies 255 Breach of instructions from necessity, a defense 255 Katification by principals a defense 256 752 INDEX. AlG'E^CY — Continued. pagk. Liability of agents to third persons on contracts 256 A known agent is not personally responsible 256 Agent may assume personal liability 256 Agent may be liable on his express warranty 257 Liable on note given in his own name 257 Liable on note signed in his own name as agent 257 Liable on contracts for labor made in his own name 257 Agent personally liable for acts in excess of his authority 257 Agent not liable on unauthorized contract which could not be enforced if authorized 258 Liable to third persons for unwarranted assumption of authority 258 Action for fraud and deceit lies for false assumption of authority 258 Action against agent on implied warranty of authority 258 Person inducing agent to exceed his authority cannot enforce unauthor- ized contract ... 258 Personal hability for not disclosing agency 258 Real principal liable when discovered 259 Agent's liability to a foreign principal " 259 Intent to assume personal liability , 259 Liability of agent contracting in his own name 259 Agent not liable where exclusive credit not given him 260 Liability of public agents on contracts made by them 260 Public agent generally not personally liable 260, 261 No presumption that public agent intends to bind himself 260 When a public agent is not liable 261, 262 Liability of public agent for refusing to pay moneys 262 When a public agent is liable upon contracts 262 Liability of government or principal 263 Liability of agent for torts 263 Omissions of duty do not render agent personally liable to third persons . . 263 Principal when liable to third persons for misfeasance of agent 264 Liability of principal for misrepresentations of agent 264 Shipmaster liable for goods stolen by crew 264 Telegraph company liable for negligence of operator 264 Maxim respondeat superior applied . 264 Principal may recover from agent sums paid on account of his negligent acts 264 Liability of agent for unauthorized willful injuries 264 Principal not liable for unauthorized willful trespass of agent 264 Agent liable for unlawful act done under the direction of his principal . . . 265 Liability of agent for acts done by his employees 265 Liability of banks for negligence of other banks 265 Liability of bailee for negligence of servants 266 Liability of persons receiving notes for collection, for neghgence 266 Agent when not liable for torts 266 Principal when not liable for agent's willful torts 266 Liability of public agents for torts 267 Liability of public agents for torts of servants 267 Rights of agents in regard to their principals 2C8 INDEX. 753 AGENCY — Continued. PAor Compensation of agent where there is no expre^ss agreement 268, 269 Cnmpensntion of agent discharged before his term of emplo3rment has expired 268 Salary of agent for services after contract time 268 Right to extra wages for new duties 269 Compensation for gratuitous services of agent 269 Compensation to be made by will 269 Compensation of agent by commission 269 Services must be performed before payment 270 Compensation where the principal has prevented performance 270 Recovery by agent of commissions earned , 270 Faithful discharge of duty before payment 271 Adverse interests, or acting for two parties forfeits compensation 271 Reimbursement and indemnity of agents 271 Agent cannot recover needless advances 272 Loss or damage sustained for principal 272 Loss occasioned agent by deception of principal 272 Damages sustained by following direction of principal 272 What will entitle agent to claim remuneration from principal 273 No indemnity to agent for damages from illegal acts 273 Power of agent to pledge goods 273 Lien of agents 273 Agent's lien in general 273 Particular liens of agents 273 General hens of agents 274 Lien, how acquired 274 Agent cannot pledge principal's goods to secure his own debt 275 No lien on goods in agent's hands without owner's consent 275 Essentials to constitute a valid lien 275 Upon what demands a lien may be had 275 Waiver of hen, or right to it 276 Constructive possession sufficient for the purposes of a lien 276 Enforcing liens 277 Sale of property to satisfy the lien 277 Nature of lien of mechanic 277 Lien of sub-agent 277 Rig'hts of agents as to third persons 278 Right of agent to sue in his own name 278 Action upon note or other instrument made payable to the agent .... 279 Action by collecting agent upon negotiable note indorsed in blank 279 Principal may control action brought in name of agent 280 Principal not allowed to control action to injury of agent 280 Same defenses in action by agent, as if brought by principal 281 Agent may sue for tort of third person 281 Rights of principals against third persons 281 Rights of principals on agent's contracts 282 Enforcement of contract made in name of principal 282 Enforcement of contracts where principal was not disclosed 282 Payments to agents 282 Vol. I. — 96 764 INDEX. AGENCY — Continued. , fagb. When payment to agent is deemed payment to principal 283 Power of agent to receive payment for his principal 283, 284 Payment by agent for principal 284 Injuries to property in agent's hands 285 Wrongful sales or transfers by agent 285 Bights to third persons against principals 285 Rights of third persons on agent's contracts 286 Liability of principal who has clothed agent with apparent power to con- tract 286 Rights of third persons on unauthorized but ratified contracts 286, 287 Liability of telegraph companies for errors of agents 287 Liability of carriers for goods delivered to their agents 287 Principal's liability for torts of agent 287 Principal liable for wrongful acts committed under his direction 287 Principal liable for negligent performance of duty by agent 287 Principal, when liable for fraud of agent 287 Principal liable for ratified wrongful act of agent 288 Principal not liable for willful tort of agent 288 Principal hable for mistakes of ageat 288 Termination of agent's authority 289 Revocation of authority by principal 289 May be terminated at any time 289 Created under seal may be revoked by parol 289 Coupled with an interest irrevocable 289 Mode of revocation 289 When revocation takes effect 290 Renunciation of agent 290 Termination of, by operation of law 290 Insanity of principal, a revocation of 290 Revocation by death of principal 290 Revocation by death of agent 291 Accounting between principal and agent 178 Indorsement by agent 593 AGENT. (See Agency.) AMBIGUITY: In bills and notes 565 In contracts generally 124 ANCIENT LIGHTS: English rule, as to 292 Right by prescription to enjoyment of 292 Statutory rule in England in relation to 29.! Implied grant 29S, 294 Where title of adjoining proprietors springs from jommon source 294 American cases similar to English rule 294 States in which the English rule prevails 295 Implied grant 295 American rule, as to 296 English rule inapplicable to our institutions 296 IIS'DEX. 765 ANIMALS : paok. Ownership of. 298 Definition and general principles 298 What animals are subjects of property 298 Wild animals are not subjects of property 298 May be absolute property in tame animals 29& Wild animals, when captured, become property 298 Wild geese, when tamed, are property 298 Bees, when hived, are property . . 298 Dogs and cats are a species of property 298, 299 Doves, when property 299 Pigeons, partridges, turkeys and peacocks 299 Oysters planted in beds 299 Wild animals tamed or confined, are property 299 What animals are not subjects of property 299 Title to animals, how acquired 300 Property in wild animals is in owner of lands and not in captor 300 Wild bees in bee-trees belong to the owner of the soil 300 Eights of the finder of wild bees 300 Owner of bees retains title so long as he can identify them 301 Title to oysters acquired by planting 301 Ownership of increase of domestic animals 301 Pursuit of wild animals does not confer title 301 Title, how transferred or lost 302 Rig'lits of owners or possessors of 302 Wrongfully taking 302 Detention of escaped horses, by officer 303 Rights of owner of land trespassed upon by 303 Injuriously using a horse estray 303 Wrongful destruction of 303 Action for injuring or killing dog, maintainable 303 Action lies for unlawfully killing a cat 304 Unlawful killing of chicken-eating hog 304 Sale of poisoned hay 304 Wrongful killing of animals generally 304 Injuries to cattle trespassing 305 Wrongful injuries to 305 Setting dogs on horses 305 Killing stock on unf enced railroads 305 Collisions in the highway 305 Over-driving hired horse 305, 306 Wrongful conversion of 306 Hiring horse to go to one place and going to another 306 Rights as to mode or place of keeping 306 Pasturing sheep having infectious disease 306 Communicating disease to cattle of others 307 Hooking cows and kicking horses 307 Duties and liabilities of owners or possessors of 307 Duty of owner to keep cattle from trespassing 307 Owner not liable for trespass of cattle in care of agistor 308 756 INDEX. ANIMALS - Continued. age Injuries caused by frightened horses . , 308 Injuries to persons by domestic animals 308 Injuries by animals known to be vicious _ 308 Injuries from ferocious dogs 309 Injuries from negligent driving 309 Injuries to animals by domestic animals 309 Injuries to horses by being kicked by others through a fence 310 Liability of agistor of cattle for injuries to 310 Injuries by wild 310 Owner of tame bear liable for injuries done 311 Horse frightened by elephant 311 Knowledge by owner of vicious habits 311 When knowledge of vicious habits must be proved 312, 313 Yicious dogs are a nuisance 313 Negligently permitting a horse to run loose in a city street. ... 313 Proof that dog has previously bitten some one, unnecessary 314, 315 Knowledge of the wife is knowledge of the husband 315 Agent's knowledge of viciousness of 316 Possessor of animal liable for injuries committed by him 31G Injuries by stray dogs temporarily on premises 316 Injuries by trespassing animals 316 Injuries to, from neglect to fence 317 Communicating diseases to 317 Injuries by animals of diflferent owners 318 No contribution as between joint owners of 319 Statutory liability of owners of 319 Rights of third persons to kill 320 Right to kill ferocious dog 320 Killing barking and howling dogs 320 Killing animals of others to protect your own 320 Killing dog chasing hens or sheep 320, 321 Killing an ass to save a cow 321 May protect property from, notwithstanding game laws 321 To protect his property from trespass 321 ANNUITIES: General rules relating to 323 Nature and definition of 323 Distinction between annuity and rent charge 323 Distinction between annuity and income 323 How created 324 Consideration for 324 Payment of 325 Enforcement of payment of 325 How determined . 32G When determined by death 326 Given in restraint of marriage 326 May be purchased 326 INDEX. 757 APOTHECARY: page. Liable for injuries resulting from his negligence 136 APPEARANCE (See Attorneys): Attorney's authority presumed 456 Proof of retainer 457 Unauthorized 458 APPLICATION OP PURCHASE-MONBTf: Purchaser, in what cases bound to see to 327 Where trust is specific 327 Where the trust is general and indefinite 328 Collusion or fraud of purchaser 328 Purchaser of personal property has no interest in . . 328 Purchaser of real estate must see to 329 Purchaser under a decree has no interest in ... 329 Where there is a devise of real estate for the payment of debts .... 329, 330 Where discretion is to be exercised by trustee 330 Where the testator reposes the trust of making, in trustee 330 APPORTIONMENT (See Accounting) : Of entire contracts 180 Of apprentice fee 181 Of rent 181 Of rent service 182 APPRENTICE : Homicide in defense of, justifiable 55 Apportionment of fees of , 181 APPROPRIATION (See Accourding) : Of payments 176 Debtor has first right of 177 Creditor may exercise right of, if debtor does not 177 If not made by parties, made by law 177 General rules as to application of payments 177 ARBITRATION : Defined 66 ARREST : Without warrant 56 Resistance to illegal 57 ARSON : Killing of person committing 54 ASSAULT AND BATTERY: What is an assault 332 What is an assault with a gun or pistol 332 Attempting to ride over another person is an assault 332 Throwing missile 333 Threatening or menacing conduct or advances 333 Attack upon a horse driven by another 333 Cutting hair of pauper in the poor-house - 333 758 INDEX - ASSAULT AND BATTEUY — Continued. pao« Striking at one man and hitting another 333 Putting drugs into coffee 333 Indecent hberties with female pupil or patient 333 What is not an assault 333 Mere threats are not assaults , . . . , 333 Words accompanying acts may disprove 333, 334 Mere drawing of a pistol is no assault 334 Acts done in self-defense 334 Preventing a person from passing along the highway, by threats, is an assault 334 Separating persons fighting 334 What is a battery 335 Every battery includes an assault 335 Wounding and mayhem 336 Mayhem defined 336 Defenses, excuses and justification of 337 Accident, when a defense to action for 337 In self-defense, justifiable 337 Firing pistol in self-defense and wounding bystander 338 When self-defense may be urged in justification for 338 In defense of another 338 In defense of land, house, etc 339 Resistance of owner of house against forcible expulsion 339 Person entering house by force may be expelled by force 339 Ejecting ticket-holder from tlieater by force 340 Wrongfully ejecting person from clerk's office 340 Defense of personal property as an excuse in actions for 340 Preserving the peace, etc 341 Interfering to prevent or stop an affray is not 341 Punishing misconduct on shipboard is not 341 The beating of a servant by his master is 342 Wife cannot maintain action for, against her husband 342 Right of schoolmaster to chastise pupil 342 Provocation as a defense to - 342 An assault will justify a blow 342 Mere words of provocation will not justify 342 Provocation may be shown in mitigation of damages 343 Expulsion of guest by innkeeper 343 Removing person disturbing religious meeting 343 Expelling passenger for non-payment of fare 344 Consent of party assaulted as a defease 345 Damages in actions for 345 Damages discretionary with jury 345 What damages recoverable where special damages are not pleaded 345 What should be considered in estimating damages in '. 345 Aggravation of damages 345 When and where exemplary damages may be given 346 Mitigation of damages 346 What may be shown in mitigation of 346, 347 INDEX. 7^ ASSENT (See Contracts): page. Of parties to contracts 82 Of the capacity to 82 Essential to validity of contract 83 What constitutes a valid 83 Three requisites of a valid assent 83 Proposal without assent does not amount to a contract 83 Modified acceptance of offer . . , 83 Offer may be w^ithdrawn before it is assented to 84 Procured by fraud, renders contract voidable 84 How affected by a mistake as to law . , 84 How affected b)' mistake as to fact 85 Obtained by duress 85 G-iven by letter 86 Given by telegraph 8T To bill or note 537 ASSESSMENT : When equity will interfere against, as a cloud on title 665 ASSETS, ADMINISTRATION OF: General rules relating to 348 What are to be deemed assets 348 What are legal assets 348 What are equitable assets 349 Origin of the doctrine of equitable assets 349 Principles of distribution 350 Distribution of legal assets in courts of equity 350 Distribution of equitable assets 350 Creditors preferred to legatees in 351 Where the assets are partly legal and partly equitable 351 Order of distribution of, in equity 351 Marshaling assets , 352 Principle upon which the court proceeds to marshal assets 352 Illustrations of the principle upon which the court acts 352, 353 ASSIGNEE (See Assignment) : Title of assignee for benefit of creditors 592 May maintain action in his own name 81 ASSIGNMENTS : Term " assignment " defined i 355 What is assignable ... 98, 99, 355 Subject of assignment at law must have an actual existence 355 Of things not in existence 351 Of chose in action prohibited at common law 356 Of lands and interests in lands 356 Every estate and interest in lands assignable 356 Laws in the several States as to assignments of estates in land 357 Pre-emption right not assignable 357 Of contracts to convey interest in lands upon performance of certain con- ditions 357 760 INDEX. A^SSTGNMENTS — Continued. page. Of son's interest in his father's estate, the father living 357 Contract, when assignable 357 Examples of assignable contracts 358 Of money due or to become due 359 Creditor may assign debt and securities for its payment 359 Unliquidated balance of account is assignable 359 Of fees or salaries 359 Of judgment and execution 359 Of cause of action 98, 359 Of right of action for conversion of property 360 Of claim for money obtained by fraud 360 Of rights of action for torts generally 360 Of mechan ics' lien 360 Of part of a note 361 What is not assignable 361 Mere personal torts are not assignable 361 Void as against public policy 361 Contracts for the performance of personal services 362 Note payable in personal services 362 Parol license to be exercised on land of another. . , 362 License to keep a grocery ... 362 Form and mode of assigning 362 Of contracts by mere transfer, valid 362 Promise to pay debt out of a fund not an assignment of the fund 363 Of fund by order drawn upon it 363 Of mortgage need not be under seal 363 Judgment may be assigned by parol 363 Of notes, bills, executions and covenants 363 Of contracts to convey land, or book debts 363 No particular form necessary to constitute 363 Validity of assignment as to assignor's creditors 364 Eights of assignee 364 AVhat passes to assignee of chose in action 364 Assignee acquires the rights of the assignor 364 Assignee of a demand may release it 364 Assignment of a debt carries with it collateral securities held by creditor. . 365 Of bill of lading 524, 529 On assignment of mortgage, guaranty of collection passes with it 365 Assignment of judgment and execution does not convey moneys collected under it 365 Liability of assignee 366 Assignee of demands not negotiable takes them subject to all equities, bur- dens and offsets ... 366 Rights of assignor 366 Liability of assignor 367 Assignor not liable to assignee on account of offset to assigned demand. . . 367 Vendee of chose in action warrants title 367 Implied contract of assignor as to validity of obligation assigned 367 Eights of assignee to recover back moneys paid on assignment 367 INDEX. 761 ASSIGNMENTS — Continued. ?4Ge. False representations of assignor of mortgage 367 Vendor of bill or note warrants its genuineness 367 Action at law by assignee 368 Eight of assignee to sue in his own name .... 81, 3G8 Same equities may be set up against assignee as against assignor 308 Right of assignee to sue in name of assignor 369 Action in equity by assignee 369 When assignee may sue in equity 369, 370 Made in good faith, upheld in equity 369 Assent of debtor not necessary to give validity to 369 Notice to debtor of assignment 370 Not defeated by death of assignor ... 370 Of policy of insurance 371 Fraudulent assignments 371 Voluntary assignments 372 ASSUMPSIT : Action of, and when it may or may not be maintained 373 Nature and definition of 373 Express assumpsit defined 373 Implied assumpsit defined 373 Distinguished from covenant and debt 374 A promise, express or implied, necessary to maintain 374 Consideration for promise necessary to sustain 374 Agreements without consideration void 374 Special or general , 375 Special assumpsit founded on express promise 376 Plaintiff must show full performance 376 Defense of fraud in action of 376 General 376 General assumpsit rests upon an implied promise or contract 376 What may be shown in defense to action of 376 When the action lies 377 On breach of contract under seal 377 For money accruing due under a statute 377 For goods and chattels 378 To recover money belonging to one legatee and received by another 378 To recover the fees of a justice of the peace 378 For a breach of warranty in the sale or exchange of chattels 378 For breach of contract of bailment 378 For labor of servants 378 To recover the whole of an account 378 To recover the amount of a bill of exchange 378 To recover the purchase-price of lands 378 On promise of devisee to pay specific sum charged on lands 378 On a promise to pay a debt barred by the statute 378 For unpaid installments of subscriptions for stock 378 To recover the value of goods converted by bailee . 378 Against husband or father for necessaries. ... . . 378 Vol. I. — 96 762 INDEX. ASSUMPSIT — Continued. page. Against executor for taxes due from testator 379 Against common carrier 379 Against collector for taxes collected by him 379 Against attorney for negligence 379 Against bailiiF of goods on promise to account 379 Against company for goods furnished 379 Against corporation refusing to permit a transfer of its stock 379 Against administrator for distributive shares 379 On bonds of city in aid of railroad 379 To recover back money paid assignor of pretended demand 379 By partner on dissolution of copartnership 379 By purchaser against vendor of stolen property 379 By tenant in common against co-tenant 379 For tolls 380 Against innkeeper 380 On express agreement to pay rent 380 For purchase-price of lands 380 By creditor of copartnership against partner assuming liabilities of the firm 381 For subscription for stock of corporation 381 By heirs at law against administrator 381 General indebitatus assumpsit, w^hen proper 382 Promise must be alleged to support 382 To recover for work done under executory contract , 382 On an implied agreement 383 Cases in which indebitatus assumpsit has been maintained 383, 384 When special assumpsit lies 385 When the action does not lie 386 When there is an express promise, there can be no implied promise 386 Will not lie upon a contract under seal 386 Will not lie to recover a fixed salary 386 Cases in which assumpsit will not lie 387 When indebitatus assumpsit does not lie 388, 389 Who may bring the action 390 Plaintiff" must be party from whom, or for whose benefit consideration moves, or is paid 390 By corporation 392 On quantum meruit 392 Pleadings in the action 392 Declaration in 392 Averments in declaration 393 Facts showing consideration must be alleged 393 How the consideration should be pleaded 393 Promise of defendant must be pleaded 394 Abnegations of performance of conditions precedent 394 Averments of demand or notice 395 Averments of breach of defendant's promise 395 What may be pleaded m defense 396 INDEX. 7t>3 ASSUMPSIT — Continued. page. What may be shown under the general issue , 397 400 Special pleas in 397 Eyidence in the action 398 Proofs necessary under the common counts , 398 What writings may be put in evidence under the common counts 398 What must be proven under special counts 399 What evidence may be given under the general issue 400 What evidence may be given under the plea of payment 401 Evidence held incompetent in 401 Variance 402, 403 Damages in 404 Actual damages generally recovered 40i When agreed price will be the measure of damages 404 Election between assumpsit and other actions 405 Plaintiff may waive tort and bring 405 Principle upon which the right of waiver rests 405 Waiver of conversion of goods . . 406 Waiver of fraud in purchase of property 406 Entire tort must be waived if any part be waived 407 Illustrations of the doctrine of waiver 407 Where tort cannot be waived and assumpsit maintained 407 408 409 Election in other cases 409 ATTACHMENT : Of the remedy by, in general 410 Nature of the remedy 410 411 Origin of 410 Names given to the process in the several States 410 Remedy in the United States 4] 1 Statute authorizing, must be strictly construed , 411 Distinction between foreign and domestic 411 In the New England States 411 In States other than New E-ngland 412 In what actions allowed 412 Generally issues on contract indebtedness 412 Degree of certainty required in the claim of the attaching creditor 412 May issue on a debt not yet due in certain States 413 In what actions not allowed 4l3 Remedy not given in actions for tort 413 Where penalty has been fixed for breach of contract 413 414 Remedy in certain States 414 Does not lie in an equitable action 4I4 In whose favor issued 415 In favor of creditors, non-residents and assignees 415 Against whom issued 415 Lies against corporations , 415 Lies against absent debtors 415 Does not lie against persons temporarily absent 415 What is and what is not such absence as gives right to remedy 416 764 INDEX. ATTACHMENT— Continued. pag». Lies against absconding debtors 416 "Abscond " defined 416 Who are absconding debtors 416 Act or' absconding a personal act 417 What " concealment " will authorize 417 Removal or fraudulent disposition of property by debtors 417 What removal of property will authorize 417 AflBdavits founded on belief 417 Threat of debtor that he will assign his property 418 Lies against non-resident debtors 418 Who are non-residents within the statute 419, 420 Transient presence of non-resident does not defeat remedy 419 Where one of two partners is a non-resident 419 Word '' citizen " in the Maryland statute construed .... 420 Residence not lost by soldier on duty 420 Escaped convicts are non-residents 420 Residence of wife follows that of husband 420 Lies against corporations 421 Persons in representative character 421 When administrators may or may not be proceeded against by 421 What property may be taken 422 Whatever may be sold under execution may be attached 422 Real estate subject to 422 Against interest of mortgagee 422 Interest of land under contract of purchase 423 Personal property liable to execution, liable to 423 What property exempt from 423 Property exempt from execution 423 Chattels pawned or mortgaged 424 Property held under a lien 424 Goods subject to right of stoppage in transitu. . 424 Goods held under conditional sale 424 Goods loaned 424 Goods acquired by fraud 424 Property in the custody of the law 425 Private papers and books of account 425 Perishable property 425 Hides in vats or charcoal in the pit 425 Mail coaches ■ 425 Remedies for illeg^al 426 Remedy for illegal attachment by action on the attachment bond 426 No action lies for irregular suing out 426 No action lies for failure to prosecute 426 What constitutes a breach of the condition of the bond 426 When action maintainable, though the plaintiff succeeded 427 Only defendant in attachment can maintain action on the bond 427 Where the bond is given to several a joint action may be brought 427 Must be discharged before an action lies on the bond 427 INDEX. 765 ATTACHMENT— Co«fan«ed page. What damages may be recovered for the wrongful issuing of 427 Action lies for malicious attachment 428 What constitutes a malicious attachment 428 Suit must be terminated before action for malicious attachment lies 429 Damages in action for malicious 429 ATTESTATION : Of contracts 113 Of bonds 676 ATTORNEY, POWER OF. (See Power of Attorney.) ATTORNEYS: Powers, rights, duties and liabilities of. 430 Nature of the office and qualifications for 430 Definition of word " attorney " 430 Officers of the court -^vhere they practice 430 How far public officers 430 Distinction between attorneys and counsel abolished 431 Office of, not known in justice court 431 Who may be admitted as 43 1 Right to practice in State courts regulated by State laws 431 Qualifications of 432 Qualifications of, in Federal courts prescribed by Congress 431 How admitted to practice 432 Court may look behind certificate of moral character 432 Oath of 432 Admission of, a judicial act 433 Admission of, cannot be compelled by mandamus 433 Power of the court to suspend 433 License cannot be summarily suspended 434 Striking oflF the roll 434 Authority or powers of 434 General authority of 434 Acts of, binding on clients 434 Authority of, will not be questioned in the absence of suspicious circum- stances 434 Unauthorized acts of, become binding by ratification of client. ........ 435 May receive client's money 435 Cannot receive any thing but lawful money in payment of client's claim. . 435 May receive partial payment of client's claim 435 Power to receive moneys on execution 435, 436 Have no power to sell their client's demand 436 Have no general authority to compromise claims 436 When compromise by, will be binding 43f May submit the cause to arbitration 437 Agreements by, relating to the conduct of the suit 437 Power of, to control proceedmgs in court 437 Stipulations by client are of no effect 437 May release property attached 438 May indemnify officer making a levy 438 766 INDEX. ATTORNEYS — Continued. paqb. What an attorney may do under his general authority 438 What an attorney may not do under his general authority 439 May sue out -writ of error 439 May discontinue sui l 439 Authority of, to make admissions, stipulations, etc 440 Cannot waive a jury trial in a criminal case 440 Cannot stipulate not to appeal or seek a new trial 440 When agreement of counsel will not be enforced 440 Stipulations in open court are binding 440 Power to control judgment, execution, etc 441 Power of, to confess judgment 441 Power of, to take out an execution 441 Power of, to stay an execution . 441 May discharge defendant from arrest 441 Power of, to acknowledge satisfaction of judgment 441 Cannot release real estate from the lien of judgment 442 Have no implied authority to release property levied on 442 Payment to an attorney is payment to his client 442 Authority to prosecute auxiliary proceedings 443 Termination of authority of 443 . Client may terminate attorney's authority at his pleasure 443 May sever their connection with a case on reasonable notice 443 - Authority terminated by death of client 444 G-eneral authority of, ceases with the recovery of judgment 444 Duties, liabilities and disabilities of. 444 Relation between attorney and client 444 Liability of attorney for want of skill 445 Not liable for every mistake in practice 445 Disqualified to act as bail 445 May give evidence for his client 446 Cannot act in any other capacity 447 Cannot act on opposite sides 448 Cannot change sides in the same cause at diflferent trials 448 May draw contracts between parties having adverse interests 448 Liable to persons injured by unauthorized appearance 448 Mav render themselves hable for malicious arrest 448 Liability of, for damages resulting from an execution illegally issued 448 Liability of, on their promises and representations 449 Liability for costs, fees, etc 449 Liability of, for costs in the various States 449 Power of court to order costs to be paid by 45C Liability of, for fees of officers 450 Bights and privileges of 450 Right of, to compensation 451 May recover their fees by action 451 Compensation of, fixed by agreement 451 Value of services of, how proved 451 Special agreements for pay scrutinized, when oppressive to client 452 INDEX. 767 A.TTORNETS— Continued. page. An agreement to accept a portion of the recovery is valid 452 Void agreements as to fees 453 Duty to defend persons charged with crime 453 Cannot recover for services negligently rendered 453 Lien for costs 453 To what an attorney's lien extends 454 Privileges of 455 Exemption from arrest 455 When the privilege of, ceases 456 Eight to enter prison to advise with client 456 Actions by, against clients 456 Must prove retainer to maintain action against clients 456 Retainer of 456 Appearance by an attorney raises the presumption of a retainer 456 Proof of retainer 457 Parol retainer sufficient authority to commence an action 457 Authority to appear may be inferred 457 Unauthorized appearance 458 Party may be bound by unauthorized appearance 458 Remedy against unauthorized appearance 458 Actions and proceedings by clients against 459 Actions against, for negligence 45f> What constitutes actionable negligence 459 Actions against attorneys for accounting and payment , 461 Not Uable for moneys collected before demand 461 When demand unnecessary 4(;1 When action for money had and received will lie against 461 Summary proceedings against 462 Client may have relief against negligent acts of 462 Change of 462 Party may discharge his attorney at any time 462 Party cannot substitute, without payment of fees 463 Proceedings on death of. . 463 Cannot withdraw without leave of court 463 Cannot employ substitutes 46S Has no implied power to employ counsel 464 Liable for collections made by assistant 464 Cannot substitute another attorney on being elected judge 464 Law partnerships recognized 464 Liability of the members of a law firm 464 How far bound by the acts of their clerks 465 Dealings between attorney and client 465 Jealousy of the law as to dealings between attorney and client 465 Presumptions against transactions too favorable to 466 Relief granted client against hard bargains with 466 Protection to 467 Not allowed to make purchases adverse to client 467 Cases in which attorneys will be deemed trustees for their clients 467 7t58 INDEX. ATTORNEYS — Continued. page. Privileged communications 468 What communications are privileged, and between what persons, 468, 469, 472 How only the privilege may be waived 469, 471 Exceptions and limits to the rule 469 What communications are not privileged 469, 472 Communications in the presence of both parties are not privileged 470 Are not compelled to produce papers intrusted to them 471 Termination of privilege 471 Disbarring 473 Power of the court to disbar 473 What is a ground for disbarring 473, 474 May be disbarred for contempt or unfitness 473 Threats of personal violence to judge out of court 474 Subornation of perjury a ground for disbarring 474 What is not sufficient cause for disbarring 474 Are entitled to notica of proceedings to disbar 474 Decision of proceedings for disbarring 475 Effe-.t of disbarring 475 Restoration of, may be compelled by mandamus 475 AUCTIONEERS : Wlio may be an auctioneer 476 Auction defined 476 And brokers distinguished 476 Are the agents of the sellers of the goods 476 Statutes relating to 476 Bonds required of 476 Verbal authority suQicient to authorize agent to act as 477, 478 Rights and powers of 477 Have a right to prescribe rules and terms of sale 477 What is a notice to purchasers of terms of sale 477 May receive payment for goods sold 477 Must sell for cash 477 Has no implied right to warrant goods sold 478 Cannot delegate their powers 478 May employ all necessary clerks and assistants 478 Cease to be agents when the sale is perfected . 478 May bring actions for the purchase-price of goods 478 Cannot sell at private sale 479 Cannot bid or buy for another 479 Duties and liabilities of 479 Required to use ordinary diligence and skill in the care of goods. . , 479 Are liable to indictment for placing goods in a public street 479 Must obey the instructions of his principal at his peril 480 In the absence of instructions must follow custom 480 Personally liable on sales for undiscovered principal 480 Purchaser may repudiate sale for undiscovered principal 480 Are responsible for gross negligence or ignorance 480 Degree of care and skill required of 480 INDEX. 769 A.UCTIONEERS — Continued. ?aOe. Are liable to the owner for sale of stolen goods 480 When third person may maintain trover against , 480 Liable on an express warranty of title 481 When liable as stakeholders 481 tffect of puffing aud combinations 482 Increasing price by fictitious bids avoids the sale 482 Combinations to prevent bidding are fraudulent 482 Agreements not to bid are void i 482 Void agreements respecting public sales 483 Liability of bidder for undisclosed principal 483 When illusory bids will not avoid a sale 483 Effect of employment of puffer in sales " without reserve" 484 Sale, when binding ... 485 When bid may be withdrawn 485 ElTect of statute of frauds 485 Are agents of vendor and purchaser 485 Sales at auction are within the statute of frauds 485 What will be a sufficient compliance with the statute 486 Form of memorandum of sale by 486 Compensation of , 487 Loss by negligence or fraud defeats right to compensation 487 Lien of 487 Actions founded upon auction sales 488 May maintain action against a purchaser 488 Vendor liable for statements of 488 AUDITA QUERELA: Nature of the remedy 489 Origin of 489 When it lies 489, 490 Will he though another remedy exist 490 As a relief against executions or judgments 490 When it does not lie . ... 491 Does not lie upon erroneous acts of courts 491 Does not lie for matter which may be corrected by writ of error 491 Does not lie where a party has had an opportunity of defense 491 Does not lie to correct taxation of costs 491 Against what judgments and execution not a proper remedy ... 491 Procedure by '. 492 Writ must be allowed on motion in open court 492 Effect of allowance of writ 492 Parties and pleas in 492 Relief upon motion in place of . . 492 AVERAGE : Doctrine of general average 183 Right of contribution in case of loss at sea ... j€3, 184 BAILMENTS : Nature and definition 494 Parties to . , , , 494 Vol. L — 97. 770 INDEX. BATLMEN'TS — Continued. vawl Tarions kinds of 495 Deposit 495 Mandate 495 Loan for use or commodatum 4:95 Pledge or pawn 495 Hiring 495 G-eneral rules relating to 495 Consideration necessary to sustain 496 What care and diligence is required 496 Efifeet of custom or usage . . 496 Kinds and degrees of negligence 497 Different degrees of negligence explained 497 Fraud by bailee 497 BANKS AND BANKING: General principles relating to 498 Nature of the dealings of bankers 498 Principal attributes of banks 498 Banks of deposit, discount and circulation 498 Bank may select its dealers 498 Effect of usage upon contracts and dealings with 499 Knowledge of a usage must be brought home to party affected by it 499 Custom of banks as to correcting mistakes 499 Custom of, to pay only half of a half note 499 Custom of making demand without presentation 499 By-laws of a bank do not affect third persons 500 Liens of 500 Lien of banker for advances on securities 500 Deposits, general and special 501 Liability of banks for the loss of special deposits 502 Liability of, for refusal to pay check 148 Relation between bank and depositor 502 Bank liable for loss of general deposit 503 Bank must exhibit its books to depositors 503 Repayment of deposits 503 Trust-money deposited in the name of the trustee retains its character. . . . 503 Who may withdraw deposits .... 504 Payment to person presenting pass-book of a savings bank 504 Demand of deposit, when necessary before action 254, 504 Checks, nature and requisites of 505 (See Checks.) Certified checks 507 Paying forged checks 508 Over-drafts not favored in law 509 Bank may maintain an action to recover the amount of over-draft 509 Property in bills obtained by fraudulently overdrawing an account ..... 309 Effect of drawing a check without funds to meet it 510 By-laws of savings banks in regard to pass-books 510 Certificates of deposit, nature of 511 Nature of bank notes or bills 511 INDEX. 771 Ba ^ HOLDER : Rights of bona fide holder of bond 689 Rights of bona fide holders of billfl 590, 600, 611 Of bills of lading 527 BONDS : Nature and definition of 670 As contracts to do the things mentioned in the condition 670 Omission of words " heirs, executors and administrators " 670 Parties to 671 Who may become obligors 671 Griven under duress of imprisonment, void 671 Of married women 671 Of infants 671 Of persons intoxicated 671 Of person under disability, with one who is not 672 Who may be obligee 672 To aheas 672 To married women 672 Form and contents of 672 No precise form of words necessary to create 672 Consideration of 673 Bond carries evidence of good consideration 67^ Illegal consideration vitiates 673 Examples of bonds void for illegality of consideration 673 Seal 67 1 At common law must be sealed 674 Laws of several States as to seal 675 Several obligors may adopt one seal 675 Signing and sealing binds one not named in body of 67^ Signing and sealing between the penal part, and the condition 670 Sealed instruments in form of note given by corporation 676 Execution, mode of 676 ^lay be executed by attorney 676 Authority of attorney to execute must be under seal 67C Ratification of bond by agent must be under seal 676 Signing and acknowledging signature 676, 877 Will not bind one whose signature was procured by fraud 677 Of drunken man, void 677 Purporting to be by principal and surety, but signed by surety only 677 By principal and surety 677 Fraud in co-obligors will not vitiate 67S Alteration of 678 Filling up blanks in 67?:^ With blanks left for names of obligees, nullities 678 Delivery and acceptance of , 679 Delivery es^eiit iul to validity of 679 782 INDEX. BONDS — Continued. pagr. What is a sufficient delivery of 679 Cannot be delivered to obligees in escrow 679, 680 Delivery to one obligee delivery to all 679 Acceptance of 680 Take effect from delivery 680 Construction and effect of 680 Eecitals in 680 General rules of construction of 680 Joint and several, but signed by one only 681 Particular words and phrases in, construed 682 Validity of 683 Examples of invalid bonds 683 Validity of statutory bonds 684 Void in part, and valid in part 684 Eules as to validity of 685 Place of performance of 685 Death of obligor 685 Breach of, 686 What constitutes a breach of 686 Release and discharge 687 One of two several obligors may be released 687 Release of one of several joint obligors 687 Release of one of several sureties 687 Bankruptcy of principal does not discharge surety 687 What amounts to a discharge 687 Negotiable 688 What bonds are negotiable 688 Rights of bona fide holders of negotiable 689 Title of bona fide purchasers of stolen bonds 689 Grovernment bonds, when taken subject to all equities 689 Offlcial bonds 689 Construction and effect of , 689 Validity of 690 Rights and liabihties under 691 Duration of obligation 691 Person first obtaining judgment on, entitled to full amount of his demand 691 Breach of official bonds 691 Discharge of official bonds . 691 Discharge of surety, discharges co-sureties 692 Cancellation of, by unauthorized officer 692 Of United States officers 692 Of postmasters ■; 692 Of sheriffs, constables, etc 693 Indemnity bonds 693 [n particular cases 694 To pay money 694 Where no time of payment is specified, due immediately 694 Payable on demand, payable on day of date 694 Payable on or before a certain day, saved by payment before action 69t> INDEX. 78r BONDS — Continued. page. Acceptance of principal only will not save forfeiture of penalty. . j 694 Tender of payment of principal before day of payment will not stop interest 694 Action on bonds for the purchase of real estate 69A To perform services 69EX. 785 BREACH OF MAERTAGE 'P'ROMIS'E— Continue. paos Time of performance ''24- When there is a breach of the promise . . . , f 24 Yahdity of 725 Made when both parties were married 725 Made when the defendant only was married 723 Made in consideration of illicit intercourse 725 When void under statute of frauds 725 Excuse for 725 Brutality of party as an excuse for 725 Previous insanity as an excuse for 726 Previous marriage or unchastity 726 Abandonment of contract to marry 726 Who may maintain 726 Personal representatives cannot bring 727 Damages in action for, a question for the jury 727 Excessive damages ; 727 Matters in aggravation of damages 727 Failure to prove unchastity 728 Proof of seduction in aggravation of damages 728 What may be considered by the jury in assessing damages 728 BRl OGE : deneral rules of law relating to . 729 Definition of; 729 Is either public or private 729 Private bridge defined 729 Public bridge defined 729 How established 730 Congress has power to legalize 730 When legislative authority necessary to erect .... 730 Authority to erect toll-bridge connecting two States 730 Liability for unnecessary interruption of navigation 730 Legislature may authorize new bridge near old one 731 When a nuisance 731 Acceptance of dedication of 731 Reparation of ; 731 English common law as to repair of 731 Who must repair, in this country 731 Pennsylvania decision as to duty to repair 732 Remedies for neglect to repair 732 Duty to keep bridges in repair 732 Indictment for failure to repair 732 Mandamus to compel repair 732 Quo ivarranio to compel repairs imposed by charter of corporation 732 Damages for injuries sustained by failure to repair 732 Action for damages against public bodies chargeable with duty to repair, 732 Exemplary damages for injuries received from defects of 732 Defects in bridges over public road 733 Toll-bridges are public highways ... . . 733 Vol. I.— 99 786 INDEX. BRIDGE — Continued. ?aoe. Power to erect toll-bridge . . .... . . 733 Protection of franchise by injunction 733 Payment of tolls can be enforced only at gate or toll-house 734 Corporation must comply with terms of its charter before suforcing pay- ment of toll 734 Contracts to permit persons to pass toll free, valid 734 Exemption by charter from payment of toll 734 Liabilities of owners of toll-bridge 734 Abatement of bridge as a nuisance for failure to put in a draw 735 BROKERS : Contracts by 79 Distinction between auctioneers and brokers 476 BULL: Injuries by ferocious bull 313 BURGLARY : Killing of person attempting to commit, lawful 54 CANALS: General rules of law relating to 736 Definition of term " canal " 736 Are highways 736 Canal boats are not vessels of the United States 736 Canal boats need not be registered 736 Construction and management of 736 By whom constructed and managed 736 Taking private property for 736 Damages to individuals for enlargement of , 737 Keeping in repair 737 Duties to keep bridges over 738 Tolls 738 Right to collect tolls on 738 Negligence of companies 738 Liability of officers in charge of 738 CANCELLATION: Terms upon which a court of equity will decree the cancellation of usuri- ous agreement 156 CARRIERS : Liable for goods delivered to their agents 287 CASHIER: Liability of, to bank, for negligence 251, 520 Powers and duties of 518 Is the managing agent of the bank 518 Ordinary duties of. 518 When acts of, binding on the bank 518, 519 What acts and declarations of, will not bind the bank 519 Is bound to use reasonable diligence and skill 520 OAT: Wrongful killing of, actionable 304 IISTDEX, , 787 CATTLE (See Animals) : pass. Wrongful injuries to ■ . . 305 Injuries to, while trespassing 305 Killing of, on unfenced railways 805 Communicating disease to 307, 317 Duty of owner to keep cattle from trespassing , 307 Owner not liable for trespass of, while in care of agistor 308 Liability of agistor for injuries to 310 Injuries to, from neglect to fence 317 Distress and seizure of 62, 63 CERTIFICATES OF DEPOSIT: Nature of 511 When void 511 CERTIFIED CHECKS. (See Checks.) CHATTEL NOTE (See Bills and Notes) : Payable on demand, when no time specified 119, 579 Where payable when no place is specified 119, 579, 581 Not negotiable 574 Consideration for, when presumed 574 When negotiable 575 Are valid 575 Demand of payment of 579, 580 Notice of delivery under 580 CHECK (See Bills and Notes) : Refusal of bank to cash, when actionable 148, 505 Nature and requisites of 505 Effect of giving, upon funds in bank 505 Holder cannot sue bank for refusing to pay 505 In form and effect like inland bill of exchange 505 Distinction between check and bill 505, 506 When holder of, can recover against indorser 506 Delay in presenting check for payment 506 Drawn without funds to meet it 506 Stopping payment of 506, 507, 643 Post-dated checks payable on day of date 507 Certified 507 Effect of certifying checks 507, 624 Certified raised checks 507, 508 No recovery on check showing that it was improperly certified 624 Forged 508 Drawee cannot recover back money paid on a forged check 508, 643 Bank not liable for forged indorsements on 508 Adopting forged certification binds the bank 508 Defined 534 Should be presented for payment within a reasonable time 624 Need not be accepted .• 624 CHOSE IN ACTION : Assignment of, prohibited at common law 81, 356, 359, "S"^ Assignment of .^ . . . J80 788 . INDEX CHOSE IN ACTIO'S — Co7itinued. Paok. Rights of assignee of 364 Assignor entitled to indemnity against costs of sui\ brought on 366 Action at law by assignee of 368 CITIZENS : Who are, in contemplation of attachment laws 420 CLERK : Not authorized to sign employer's name to notes 223 Authority to sign notes may be implied from formar acts 223 CLOUD ON TITLE, BILL TO REMOVE: What constitutes cloud on title 662 Jurisdiction to remove, in equity 663 Oround of exercise of jurisdiction to remove 663 Bill lies to prevent as well as remove 663 Equity will remove, where remedy at law exists 663 Who may maintain bill to remove 663 Persons out of possession may maintain action to remove 663 When vendee of lands may maintain bill against vendor in possession. . . . 664 Grantor in warranty deed may maintain bill 664 Where title rests on statute of limitations 664 111 what cases maintainable 664 Unsatisfied mortgage, or unauthorized deed 664 Forged deed . . 664 Deed executed, but not delivered 664 Threatened sale of land 664 Claim which cannot be enforced at law or equity 665 Lunatic vendor 665 Bond for a deed 665 Tax or assessment 665 When the remedy will not lie 666 When party is out of possession 666 When complainant's title is doubtful 666 Instrument void on its face 666 Other cases where the remedy will not lie 667, 668 Mode of granting relief 668 COLLECTOR: Illegality of bonds, no excuse for not paying over tax collected to meet them 102 COLLECTION : Attorney not liable for moneys collected before den and 461 Attorney liable for collections made by assistant 464 Indorsement of bills for 595 COMMODATUM (See Bailment) : Defined 495 COMMON : Bill of peace will lie to establiflh right of 65 INDEX. 785 CONCEALMENT: PAOi Of debtor a ground for issuing an attachment , . . . . 417 Meaning of the term as used in attachment bonds 417 CONDITION: Conditional contracts 76 Conditions precedent and subsequent 76 CONFIDENCE : Trust and confidence as a consideration 101 CONSENT : To an act is a bar to an action for injury resulting therefrom 3G, 146 CONSCIENCE : Obligations embraced in the term as used in equity. . . 25 CONSIDERATION (See Contracts; Bills and Notes; Bonds, etc.): Of contracts 90 A consideration necessary 90, 495, 496 Kinds of 90 Benefit or injury as a consideration 91 Adequacy of 93 Prevention of litigation as 95 Forbearance as 96 Assignment of debt or right of action 98 Assignment or sale of property 99 Services rendered, rewards offered 99 Trust and confidence as 102 Moving from third persons or strangers 103 Gratuitous promises, subscriptions and contributions 104 Illegality of 106 Impossible 106 Void in part 107 Moral 107 . Executed , 109 Executory 110 Concurrent 110 Continuing 110 Failure of Ill Impeaching Ill Eff'ect of seal upon Ill For the grant of an annuity 324 Promise to sustain assumpsit must be founded on 374 To support contract of bailment 495, 496 Of bills and notes 563, 607 Implied for negotiable bills and notes 563 Burden of impeaching consideration of negotiable note rests upon defend- ant 563, 609 Words " for value received," prima facie proof of 563 SuflSciency, validity, or legality of^ open as a defense between original par- ties 608 When consideration of note must be proved 008 Presumption of 608, 609 790 INDEX. CONSIDERATION — Continued. vaqx When consideration may be inquired into 608 Total want of consideration of note 615 Inadequacy of consideration of note, no defense 616 Accommodation paper 617 Of bonds 673 Illegality of, vitiates bond G73 Examples of illegal consideration ..... 673 Defense of illegality of, in actions on bonds 699, 700 Impeaching consideration of bonds 701 CONSTRUCTION : Of contracts 114 Is for the court Ill When for the jury 115 Is the same in law or in equity 116 Intention of the parties controls 116 Situation of parties and evidence of surrounding circumstances 118 To be reasonable 119 To be liberal 120 To be favorable 120 Words construed according to their popular sense 121 Technical words, how construed 121 To be upon the whole contract 122 Of inconsistent clauses 123 When against grantor, promisor, etc , 121 Of general words 125 Grammatical rules, how applied in 125 Transposition of words or clauses 126 Presumptions in relation to 127 Of contracts partly printed, partly written 127 Effect of custom or usage 127 Of the law of place ... 129 Of time of contract 130 Of parol evidence to explain or contradict contracts 131 Of statutes authorizing proceedings by attachment 411 Of bonds 680 Recitals in bonds 080 General rules for construction of bonds 680 Of particular words and phrases in bonds 682 Illegality of consideration of bonds 683 Of official bonds 689 Of grants in respect to boundary 714 CONTEMPT : Bringing action in the name of a fictitious person is 142 CONTRACTS : General principles of 70 Importance of a knowledge of the laws of. 3 Definition of the term " contract " 70, 71 Requisites of 7(? INDEX. '^1 CONTRACTS — Continued. jags. Mutuality of obligation 'i Classification of 71 Different kinds of 72 Contracts of record 72 Requisites of a deed 72 Simple or unsealed 72 All contracts not under seal are contracts by parol 72 Express or implied 72, 73 Nature of implied contracts 73 Promise not implied where there is an express agreement 74 Illustrations of implied promises 74 Executed and executory 74 May be executed as to one party and executory as to the other 74 Entire and divisible ' 75 Full performance, when a condition precedent to right of action on 75 An entire contract cannot be rescinded in part and enforced in part. 76 Entire contract may be apportioned by consent 76 Waiver of performance 76 Absolute or conditional 76 Conditions precedent or subsequent , 76 Time for performance of, where no time is fixed 76 Joint and several and joint or several 76 Mode of determining whether contracts are joint or several 76, 77 Parties to 77 Must be at least two parties to 77 By agents 77 Whatever a person may himself do, he may do by his agent 77 Who may be agents • 78 By partners 78 By executors and administrators 78 By trustees 78 Duties and liabilities of trustees 78 By guardian for ward 79 By or with corporations 79 By joint-stock companies 79 By auctioneers 79 By brokers 79 By factors 80 Distinction between factors and brokers, and their powers 80 When a factor is entitled to a del credere commission 80 By shipmasters 80 Authority of shipmasters to make 80 Change of parties to, by novation or substitution. . 30 Novation defined , , , . 80 Character of the contract of novation 8X Requisites of a strict novation at civil law , 61 Change of parties to, by assignment 81 Nature of a chose in action , , 81 Chose in action not assignable at common law ^ 81 792 INDEX. CONTRACTS ~ Continued. pagb, Assignment of chose in action recognized in equity 81 Assent of parties to 82 Must be assent of parties to every valid contract 82 Assenting parties must be competent to contract 82 What constitutes a valid assent 83 Three requisites of a vahd assent 83 A proposal not assented to does not constitute a contract 83 Modified acceptance of a proposition must be itself accepted 83 An offer not accepted is not binding and may be retracted before accept- ance 84 Assent procured by fraud renders contract voidable 84 Assent how affected by a mistake as to the law 84 Every person presumed to know the law 84 Maker of contract presumed to act with full knowledge of its legal inci- dents and consequences 84 Mistake as to the law relating to a contract does not impair its validity. . , 84 Person not presumed to know foreign laws 85 Mistake as to foreign laws deemed a mistake in fact 85 Assent, how affected by a mistake in fact 85 Entered into under mistake in fact, are voidable 85 No presumption of knowledge of facts 85 Assent obtained by duress will not create a valid contract 85 Assent may be given and contracts made by letter 86 Offer made by letter may be retracted before acceptance mailed 86 Made by letter are complete when acceptance mailed , 86 Eetraction of offer- must be received before acceptance mailed 86 Retraction takes effect from time of receipt 86 Offer by letter not answered in reasonable time creates no contract 86 Effect of delay or miscarriage of letter 86 Verbal rejection of offer by letter reheves person offering from liability. . . 86 Proposition for a contract 87 Offer limiting the time or manner of acceptance 87 Statement of price of lands, not a proposal to sell ; 87 Assent given or contracts made by telegraph . . 87 Offer and acceptance by telegram a valid contract. . , 87 Offer by letter and acceptance by telegram 88 Time of sending acceptance fixes time of completion of contract 88 Parties using telegraph not bound by errors of operator 88 When telegram not sufficient to take contract out of Statute of Frauds. . . 89 Telegrams competent evidence 89 Contract by telegraph must be proved by original message, if to be found, 89 When copy telegram is admissible as evidence 89 Consideration of 90 Without consideration void 90 Consideration for contracts under seal presumed. 90 Consideration of notes and bills 90 Consideration of simple contract need not be expressed 90 Kinds of consideration 90 Valuable considerations, how classified •• 90 INDEX. 793 ClyNTRACTS — Continued. page. Consideration may be a benefit to the promisor or an injury to the prom- isee 9^ Need not be concurrence of benefit to one and injury to the other 92 Wnere there is no deti imeut or benefit to either party there is no consider- ation 92 Examples of sufficient consideration S2. 93 Benefit need not be direct or certain 92 Slight advantage to one and trifling inconvenience to the other sufficient consideration £2. 94 Adequacy of consideration 93 Law does not inquire as to value of consideration 93 Slight consideration sufficient to support 94 Promise to pay if claimant vi^ill make affidavit to his claim 94 Promise to pay such sum as third person shall name 94 Promise to be satisfied if other party will swear that nothing is due 94 Additional security as a consideration 94 Worthless consideration will not support 94 Receipt in full for part payment of a demand 95 Examples of inadequate consideration 95 Gross inadequacy of consideration creates presumption of fraud 95 Prevention of litigation as a consideration 95 Promises to withdraw or withhold legal proceedings )'^ Action will not lie upon tlie compromise of an untenable claim 30 Forbearance as a consideration 9G Promise to give further time a good consideration 97 Promise to pay debt of another on condition of forbearance 97 Adjournment of a trial, a consideration for a promise 97 Forbearance to prosecute unfounded claim 97 Benefit by the delay to the promisor not necessary 98 Waiver of a legal right on request of another a good consideration for promise by him 98 Assignment of a debt arising upon contract 98 Rights of assignee at common law and under the Code 98 Guaranty for payment of a note is assignable 99 Balance due on unsettled account assignable 99 Assignment of claim of sheriff for services rendered and to be rendered. . 99 Assignment by public officer of unearned salary 99 Assignment or sale of property 99 Services rendered and rewards offered 99 Liability of sheriff on public offer of a reward 100 Offer of reward by person having no interest in the subject-matter 100 Rewards for apprehension of criminal and recovery, etc 100 Rewards for information leading to detection, etc 100 Enforcement of offer of reward to public officer 100 Construction of offer of reward as to time 101 Evidence to sustain action on offer of reward 101 Tr ist and confidence as a consideration 101 Acceptance of a trust creates an obligation to fully perform it 101 Vol. L — 100 784 INDEX CONTRACTS— C(m Suffers not a right without a remedy 29 When equities are equal, the vigilant preferred 29, 155 The fund receiving the benefit should make satisfaction 29 Terms of canceling usurious contract , 15* Eegards as done what ought to have been done 29, 15» Belief against accident in 16i (See Accident.) Lost instruments under seal 163 Lost negotiable notes .... 165 Penalties and forfeitures 167 Errors in payments by executors 168 Defective execution of powers 169 Mistakes in transfer of bills and notes 171 Will not relieve against neghgence 172 Actions of account in 174 (See Accouniing.) Jurisdiction in cases of account ^ 174 Appropriation of payments 176 Accounting between principal and agent 178 Contribution in 182 Jurisdiction over accounts pertaining to rents and profits 186 In actions of waste 187 ESCROW : Delivery of notes in 565 Delivery of deeds in 679 ESTOPPEL: Doctrine of, applied to contract of indorsement 600 In actions on official bonds. 690 Doctrine of, as applied to boundaries 719 EVIDENCE : In actions generally 44 Parol evidence, to contradict or explain a bill of lading 630, 531 Parol evidence to contradict bill or note 609, 610 EXECUTION: Assignment of 359, 363 Of powers 169 Of bonds 676 ilXECUTORS: CortractfJ by 78 Errors in payments by 168 Attachments against. < 42] INDEX. ^<}^ EXECUTORS — Continued. taot Indorsement by ... ,....., ,. 6o7 Management of assets by 660 Appointment of receiver against - S60 BXEMPTIOX : Of attorneys from arrest 45t' EXPRESS COMPANIES: Liability of, for negligence ia collecting note 251 EXPLOSIONS: Liability for damages by 161 FACTORS : Contracts by factors 80 FARE : Refusal to pay, on public conveyance , 344 FEES: Of attorneys 461 FELONY: Killing of person committing, justifiable 53 FENCE : Across a highway, a nuisance , 62 As a boundary 716 FERRY : Infringement of franchise, how remedied 651 FIRE: When person kindling fire not liable for injury occasioned by it 144, 161 FICTITIOUS : Suits 141 Payee of bill or note 540 FISHERY : Bill of peace to establish^right of 650 FORFEITURES : Relief in equity against 167 FORCED PAPER : Payment in, a nullity 572 Forged indorsements 589, 642 Acceptance of . . 600, 643 Payment of 589, 601 Forged signature of surety to bond . . 701 FRAUD : And damage give right of action 138 Legal and moral 139 Of agent 139 "When principal liable for fraud of agent 139 287 Defense of, in assumpsit 376 By bailee 497 In procuring execution of bUl or note 566, 615 804 INDBX. FRAUD — Continued PAcm As a defense in an action on. a bond 699 Averments of 701 FRAUDULENT ASSIGNMENTS: What are 371, 372 GARNISHMENT: Remedy by 410 GATES: Across highways, a nuisance 62 GRACE: Days of 640 641 GRANTS : Construction of, as to boundaries 714 GUARANTY (See Bills and Notes): Of bills and notes 582 Essentials of contract of 582 Nature of the contract of 582 Contract of, when and when not negotiable 582, 583 Notice of protest not necessary in case of 583 When guarantor becomes liable on his 584 When principal and guarantor may be sued jointly 583 Form of 584 Consideration for 585 GUARDIAN: Contracts of 79 HIGHWAYS : Abatement of nuisances in 62 Unlawful cutting and takii;g away of grass growing along 148 Are regarded as easements 708 Right of public in 708 Right of owner of the soil in 708 Sale of adjoining lands, reserving lands in 708 Right of owners of land bounded " on, upon or along ". 708 Construction of deeds conveying lands bounded on 709, 716, 717 HIRING (See Bailments): Classification of contracts of 495 HOLDER (See Bills and Notes) : Of bill or note 536 Must connect himself with the note to maintain action thereon 590 HOMICIDE : In defense of the person, or ot property, when justifiable 53, 54 In defense of others, when justifiable 55 HORSES (See Animals): Running at large, detention of. . . 303 Liability for injuring horse running at large . . . . 303 Unlawful killing of . . „ . 304 Chasing, with dogg 305, 322 INDJSX 805 HORSES — Continued. page. Collisions in highways 305 Hiring horse to go to one place, and going to another 305 Liabihty of hirer of horses for injuries to them 306 Pasturing glandered horses on lands of others 307 Injuries by, turned loose in the highway , 307 Injuries done by vicious 303 Injuries caused by runaway 309 Injuries to, by others in adjoining lot 310 Liability of owner of vicious horses for injuries to persons . 313 HOTCHPOT (See Advancement) : Defined 210 Statutes of various States relating to 210 Doctrine of bringing advancements into, limited 211 HUNTER: Title of, to game kiUed or pursued 301 HUSBAND AND WIFE: Homicide by either, in defense of the other 55 Husband may "be agent for his wife 214 Wife may be agent for her husband 214 Husband has no authority to beat his wife 342 Husband may defend himself against his wife 342 Feme covert cannot maintain assault and battery against her husband ..... 342 ILLEGALITY : Of consideration of a bond vitiates it 673 Examples of considerations adjudged to be illegal. 673 Of bonds in restraint of trade 699 Created by statute, fatal to validity of a bond 699 Must be clearly pleaded 699 Of consideration of contracts generally 106 IMPOUNDING: Cattle 63 INCOME : How distinguished from annuities 323 INDICTMENT : Of parties chargeable with repairs of bridges, for neglect of duty 732 INDEMNITY BONDS: By plaintiff in action on lost notes 603, 605 When right of action accrues on 693 Actions on 693 INDORSEMENT (See BUU and Notes) : Of bills and notes 585 When note passes by delivery and when by 585, 586 Effect of assigning a negotiable note without , 586 By president of a corporation, proof of authority 586 Of notes payable to bearer unnecessary ; 593 Of notes payable to bearer renders indorser liable 586 In pencil, valid 586 806 INDEX. INDORSEMENT — Continued. paqi By infant will transfer title 586 Bv married woman 587 by executor or administrator of deceased payee 587 By officer of corporation in his official name 588 B}^ assignee of insolvent estate " as assignor " , . . , . 588 Who may transfer title by 589 Payment of note or bill bearing forged 589 May be made in pencil or by initials. 590 Special indorsements 591 Of notes payable to several persons 591 Of notes payable to a firm 591 By partners after dissolution 592 Of note after dishonor 592 Of a bill before it is drawn 593 Presumed to be before bill is due 593 Law of place of, regulates rights of parties 593 Form of 593, 594 Without recourse 594, 598 In blank or in full passes title of indorsee 594 Contract of 594, 599, 600 On the face of a note is valid 594 In blank or in full 594 Effect of indorsement in blank 595 Form and effect of a full or special 595 To be restrictive must contain words of restriction 595 Effect of, cannot be changed by parol agreement 596 By stranger makes him an original promisor 596 Of non-negotiable paper renders indorser liable as guarantor or maker . . . 597 Right of holder to strike out 597 Right of payee or indorsee to make restrictive , 597 By officer or agent to avoid liability 598 Does not become operative before delivery of the note 599 Of notes after maturity 599 As an admission of the validity of each prior 599 Of usurious notes 600 Effect of receiving or releasing security on 602 INFANCY : In a personal defense 158 INFANT : Is not bound by account stated 192 Note of, voidable 537 May indorse bill or note so as to transfer title . . .' 586 Bond of, void at law 671 Ratification of bond of, must be ot as high authority as the bond 671 INJUNCTION : Defined 68 To compel performance of decree in bill of quia timet 661 To protect enjoyment of toll-bridge 733 IKDEX. 807 nTNKEEPERS : fagk. Must entertain, whom -^ Right of, to eject a traveler 34-5 INSURANCE : What passes on assignment of policy of 37i Assignment of policy after loss, passes what 371 Policy may be assigned after loss without the consent of the company . . . 37i flSrSANITY : Of principal may operate as a revocation of his agent's authority , 290 INSTALLMENTS : Notes may be made payable in . ■ 547 INTERPLEADER: Nature of the remedy 69 Between captain of trading vessel and persons claiming cargo 533 JUDGE: Disqualification of 61 JUDGMENT: A ssignment of 359 May be assigned by parol 363 What passes on assignment of # 365 JURISDICTION : Definition and incidents of 44 Original and appellate 44 Concurrent, exclusive and assistant 44, 45, 48 Taking cognizance of action, a decision in favor of 45 Incidents carried with grant of 45 Acts without jurisdiction null and void 45 Practice where the court has no jurisdiction 45 Common-law jurisdiction 46 Constitutional and statutory 46 Of State courts 47 Of courts of equity 26 Of superior and inferior courts 48 Exclusive or concurrent 26, 48 Of subject-matter 49 Of subject-matter cannot be conferred by consent. . . 50 Want of jurisdiction of subject-matter cannot be waived by agreement. . . 50 Objection to want of, may be raised at any time 51 Courts cannot be deprived of, by agreement of parties 50 Of the person 50 How acquired 50 May be given by consent 50 In special cases 51 Raising or waiving objection to want of 51 KNOWLEDGE: Of agent, knowledge of principal 231, 316 Of vicious habits of animals 311, 31(> 808 INDEX. XiAEJjS : PAOK Title to lands bounded or ,. 711 LANDC : Assignment of, and interest in 356 LAWS: Their nature and object . . 5 Necessity for enactment of 5 Merits and advantages of the common law 6 Origin of common-law rules and equitable principles 7 Judicial precedents 8 Province of the judge and legislature 8, 27 Every person presumed to know _ 85 LEASE : Contract for, must show length of term 113 LETTEK : Contracts by 86 LEGAL ACTIONS (See Actions) : Eelief granted in „ 12 LIENS: Defined 65 General and particular 65 Possession essential to creation and continuance of 65 Equitable jurisdiction over 186 Of agents 273 Particular liens of agents 273 General liens of agents 274 How acquired 274 Upon what demands a lien may be had 275 Waiver of lien, or of right to it , 276 Enforcing , 277 Of sub-agent ^ 277 Of attorneys, for costs 453, 454 Of auctioneer , 487 Of banks and bankers 500 Of shipping agent 530 LIGHT. (See Ancient Lights.) LOAN: Defined 495 LOST INSTRUMENTS: Jurisdiction in equity in case of lost bonds . . . . 163 Deeds 164 Mortgage 164 Negotiable notes 166, 639 Bonds 705 MAIL: Liability for moneys lost, by those intrusted with ... 26? LNDEX. 809 MALICIOUS ATTACHMENT: page. When action for, lies 143, 428 What malice must be shown to sustain action for 428 Obtained in a court within a foreign jurisdiction 428 Cannot be brought belbre the termination of the attachment suit 429 Damages in actions for 429 MALICIOUS PROSECUTION. (See Malicious Attachment.) MANDATE (See Bailment) : Defined 1 j£ MANDAMUS: Office of the writ 68 Admission of attorney cannot be compelled by -^3 To compel repair of bridge "32 MARSHALING ASSETS (See Assets, Administration of): Nature of the proceeding 662 Principle upon which the court proceeds 352 Application of the principles governing 352 MARSHALING BOUNDARIES: Order observed in 713 MARRIAGE (See Breach of Marriage Promise) : Promise of, by infant, a consideration for a promise by an adult 102 MARRIED WOMAN: Note of, void at common law , 537 Indorsements by 587 Action against indorser of note made by 600 Cannot make obligatory contract at common law 671 Bond of, void at common law 671 MAXIMS : " Uhijus ihi remedium " 4 " Yoid in part, void in toto " 107 General rules and maxims of equity 28, 29 MEETINGS: Removing persons from religious 343 MISTAKE : As to law does not excuse non-performance of contract 84 As to foreign law regarded as a mistake of fact 85 Effect of mistake of fact on a contract 85 Liability of principal for mistake of agent 288 MONUMENTS : Control in determining boundaries 714 Parol evidence as to monuments mentioned in deeds 715 MORTGAGE : May be assigned by instrument not under seal 363 Passes with assignment of the debt secured 36.5 Guaranty of collection passes with assignment of 365 Vol. I. —102 SIO •:.ts:dex. MORTG A GB — Continued. pack Liabilities of assignee of . . 366 False representations on the sak ot\ 367 Equity will not set up a pno- unsealed mortgage against a judgment creditor 154 MOTIVE . With which au act is done as a test of whether the act is actionable, 2, 35, 36 KAVIGATION: Interruption of, by bridges, may be restrained 730 xNEGLIGENCB: In putting up drugs, renders druggist liable for resulting damage 136 Of party seeking relief from accident 172 Kinds and degrees of 497 NEGOTIABLE PAPER (See Bills and Notes) : Term " negotiable instrument " defined 535 Negotiability of bills and notes 546, 561 Presumptions in favor of • 609 Negotiable bonds 688 Lost 165 NOTES (See Bills and Notes) : What passes by assignment of note secured by mortgage 365 NOTICE (See Knowledge) : Before suit 146 To attorney, of complaint against him professionally 474 Of non-acceptance of bills 626 Of non-payment of bills and notes 644 To remove nuisance 61 NOVATION: Change of parties by 8t NUISANCE : Abatement of 60 May be public or private 60 Reasons for allowing the abatement of 61 Notice to remove, before abating 61 Abatement of private 61 Of omission 61 Of house on a common as a 61 Abatement of public nuisances . 62 Gate or wall across highway is a 62 Fence encroaching on a highway is a 62 Removal of a fence as a 62 When a bridge is a 730 OFFICER : Assignment of future salary of, void , 361 OFFICIAL BONDS (See Bonds): Construction and efiect of • 689 , Validity of 690 Rights and liabilities under 691 INDEX. 811 OFFICIAL BONDS — Continued. pags Breach of 691 Discharge of 69i Of Uiited States officers 692 Of sheriffs, constables, etc 693 ORDER: For goods in form of bill of exchange 574, 575 Acceptance of 576 Distinction between, and negotiable biU 577 OYSTERS : Planted in beds are the property of the planter 299, 301 PARENT AND CHILD: Defense of, justifiable 55 Recaption of child 58 Consideration arising from the relation of 108 PARTY WALLS: Right to rebuild or repair 144 PARTIES : To actions 43 To contracts 77 To bills and notes 535 PARTNERS : Contracts by 78 Indorsement by 591 Notice of protest to 634 Notice to one partner, notice to alL 648 Of attorneys 464 PAWN. (See Bailment.) PAYMENT : Errors in payments by executors, etc 16S To agents 282 By agents for principals 284 Auctioneers may receive . • 477 By bill or note - . 568 Presentment of bills and notes for 635 Of bills and notes, by whom made - . 641 Proceedings on non-payment of bills and notes 644 Discharge of bonds by 704 PEACE. (See Bills of Peace.) PENALTIES : Relief in equity against penalties and forfeitures. 167 PERFORMANCE : Of conditions of bonds 68.:; PERSON : Rights of i Jurisdiction of M Defense of .^^ . ^»*^ 53 812 INDEX. PLACE, LAW OF: page. Contract valid by law of place where made, valid everywhere 129 Exception to rule 130 Construction of contracts in regard to 130 Of indorsement controls rights of parties , 593 PLEDGE (See Bailment) : Power of agent to pledge goods. 273 PLEADINQ-S: In actions 44 In assumpsit 392 PLEAS : In abatement 158 In bar 158 In assumpsit 392 POSTMASTER: Liability of, for torts of assistants 267 Bonds of 693 POSSESSION : Of notes, when prima facie proof of ownership 567 PRESUMPTION : Of consideration for negotiable notes 90, 608 That every person knows the law 84, 85 Of fraud or mistake from inadequacy of consideration 95 That the parties acted legally in making a contract 127 Where one purchases land in name of another and pays the considera- tion 208 Where land is conveyed voluntarily by parent to child 208 Where husband voluntarily conveys land to wife 208 Where securities are taken in the name of a child 209 Against agent on refusal to account 252 Where bill or check is taken on precedent debt 568 Where bill or note was taken eotemporaneously with contracting a debt. . 568 That a bill was indorsed before due 593 In favor of negotiable paper 609 That drawer or indorser have been injured by want of notice of dis- honor 627, 628 Of payment from lapse of time 704 Of ratification of acts of agent 234 PRINCIPAL AND AGENT. (See Agency. PRIVITY : Between wrong-doer and injured party 136 PROHIBITION: Nature of the remedy 68 PROMISE (See Breach of Marriage Promise) : Of marriage 723 Mutual promises as a consideratioD 102 INDEX. KLS PROTEST, NOTICE OF: faqz. Form and essentials of , 633, 644 Service of , 645 PROPERTY : Rights of i Defense of 53, 54 PUBLIC OFFICER: When liable on his contracts 262 Liability of, for torts 267 Bonds of 689 Assignment of salary of, against public policy 361 PUBLIC POLICY: Assignments void as against 361 Bonds void as against 699 PUNCTUATION : As an aid in the construction of statutes 126 QUIA TIMET. (See BOl of Quia Timet.) QUO WARRANTO: Nature of the writ 69 RAILWAYS: Expulsion of passengers, by employees of 344 RAISED CHECK: Bank paying, must bear the loss 643 RATIFICATION : Of act of agent binds principal 219, 232 To be binding must be virith fuU knowledge 233 Must be entire or not at all 233 When presumed 234 Once made cannot be recalled 234 Relates back to the time of the original transaction 234 When to be under seal 234 REAL PROPERTY: Defense of 54 RECAPTION : Of person or property 58 Nature of the remedy , 58 Of the person of a relative 58 Of personal property 58 Of real property 59 RECOUPMENT : Of damages in an action on a note 615 RECOURSE • Indorsements without recourse 598 RELEASE : Of one of two several obligors on a bond 687 Of surety on a bond 687 814 INDEX. REifEDIES. '^See Adic,.) PAOB. REMEDIES WITHOUT ACTION: Preventive measures 52 Defense by resistance 52 Defense of the person, how far justifiable 53 Homicide justifiable in the prevention of felonies 53, 54 ■ Self-defense always justifiable 53 Eepelling force by force in defense of personal property 53 Owner may lawfully use force to prevent wrong-doer from carrying away goods 53 Killing of pick-pocket not justifiable 53 Degree of force justifiable in defense of property 54 Defense of real property 54 Defense of possession of lands 54 Force not justifiable for the purpose of reducing right of possession to possession .... 54, 55 What force may be used in making entry upon lands 55 Trespass upon lands does not justify use of deadly weapon 55 Defense of others 55 Homicide, where justifiable in defense of others 55 Apprehending criminals and wrong-doers I 56 Arrest of criminals without warrant 56 Arrest of persons committing misdemeanor , 56 Eesistance of process, escapes, rescues, etc 57 Illegal arrest may be lawfully resisted 57 Recaption of person or property 58 Recaption of the person of a relative 58 Recaption of personal property . . , 58 Retaking property by force from wrongful taker 59 Retaking goods wrongfully detained 59 Re-entry on real property 59 Effect of an entry by force by the owner of lands 60 Abatement of nuisances 60 (See Nuisance.) Abatement of private nuisances. 61 Abatement of public nuisances 62 Distress and seizure of cattle 62 Seizure of cattle, damage feasant 62 Remedy by distress and action of trespass. 63 In what cases the remedy by distress may be resorted to 63 Cattle cannot be impounded after tender of amends 63 Cattle distrained must not be beaten, wounded or used 63 Retainer 64 Remitter 64 Lien 65 Redress by joint act of the parties 66 Accord 66 Arbi tration 66 Redress by operation of law 66 INDEX. 815 REMEDIES WITHOUT ACTION — Continued. page. Set-off of demands 66 Marriage of debtor and creditor 67 Caution in relation to resorting to 87 REMITTER: Takes place, when 64 RENT: Apportionment of 181 Jurisdiction of equity over rents and profits 186 RENT-CHARGE : How differing from an annuity 323 REPAIR : Of bridges ,7ai Remedies for neglect to repair bridges 732 RETAINER: Defined 64 When the right of, may be exercised 64 Of attorneys 456 When presumed 456 Proof of 457 REVOCATION: Of authority of agent by principal 289 Mode of 289 Renunciation of agent 290 By operation of law 290 By death of principal 290 By death of agent , 291 REWARD: Action on advertisement offering 99, 100 When right of action to recover, accrues 100 RIGHTS : Of person 1 Of natural persons 1 Of artificial persons 1 How far inalienable 1 How declared, defined and secured 2 Violation of, when actionable 2 Of property 2 How declared, defined and secured 2 Invasion of, how redressed 4 Distinction between legal and equitable 8 Of action 35 RIVERS: As boundaries 711 ROBBERY: Killing of person attempting to commit, justifiable 53 816 INDEX. SALE: PAGE. By auctioneers 477 Powers and duties of auctioneers in making 477 Auctioneer may prescribe conditions of , 477 May receive payment 477 Auctioneer cannot warrant goods sold 477 Auctioneer cannot (^legate his powers 478 Auctioneer cannot sell at private sale 478 SCHOOLMASTER: What force may be lawfully exercised by 342 Eight of, to inflict corporal punishment 34? Cannot compel pupil to disobey parents' instructions as to studies to be pursued 342 SEA SHORE: What constitutes, at common law 710 Title to 710 Massachusetts statute as to 710 SEAL: Raises a presumption of consideration 90 What is a 574, 675 Sealed notes are not negotiable 574 Can be no common-law bond without 674 Bond may be valid in some States without 675 Several obligors may adopt one 675 SEDUCTION : Of pauper by keeper of a poor-house 150 SELF-DEFENSE: Right of 52, 53 As a defense to an action for assault and battery 337 Firing at an assailant in, and killing a by-stander 338 How much force may be used in 338 SET-OFF : Right of 66 Against assignee of non-negotiable note 701 SEWER: Liability for obstruction of , 142 SHIPMASTERS : Contracts 80 Responsibility of, for goods stolen by the crew 264 Right of, to inflict corporal punishment on crew 341 SIGNATURE : To contracts 114 SKILL: Liability of attorneys for injuries from want of 445 SLANDER: Damages too remote to sustain < , , «« , ^,., , »^, 149 INDEX. 817 SPECIFIC PERFORMANCE: paqk. Net decreed by courts of law 15 STOPPAGE JiY TRANSITU: Right of vendor or consignor to 528 STREAMS : Construction of grants bounded on 711 STREET: Right to the soil in 708 Grants of lands bounded on 708, 709, 714 SUBJECT-MATTER: Jurisdiction of the supreme court over 49 Consent cannot give or deprive courts of jurisdiction over 50 SUBSCRIPTIONS: How far binding 104, 105 SUBSTITUTES : Right of agent to employ 243, 244 SUBSTITUTION: Change oi parties to contracts by 80 SUMMARY PROCEEDINGS: To compel payment of moneys collected by attorneys 462 SURETIES : Action by, against principal to recover back moneys paid for him 109 Right of accounting between 184 Sflec:. of adding word " surety " to a signature in a note 545 Protection of, by bills quia timet 656 Release of sureties to a bond 687 On bonds may set up same defenses as their principals 7C0 Fraud in procuring persons to act as 702 Failure to procure co-surety according to agreement, a valid defense . ... 567 SURGEON ; JjiabJe for unskillful treatment of patient 136 :i'ELEGRAPH : Assent gi\ eu or contracts made by 87 Offer and acceptance by telegram, makes a valid contract 87, 88 Offer by letter and acceptance by telegram 88 Parties using, not bound by errors of operator 88 Contracts by, when within the statute of frauds 89 Telegrams as evidence 89, 90 Company liable for negligence of its operatives 264 Company liable tor the errors of its agent 287 TENDER: Of performance of condition of bond 694 TBIE : Of payment need not be specified in notes 658 How computed in contracts 559 When a note takes effect 567 Prior in time, prior in right 155 ~'\oL. I. — 103 818 INDEX. TITLE: p^o^ Parties having legal title are regarded as the owners 154 Equitable title protected in proper cases ISfj TOLL BRIDGE: When authorized by statute is a public highway 733 Right of State to grant exclusive right to erect 733 Injunction to restrain another 733 Franchise may be taken for public use 734 Payment of tolls, where legally enforced ., 734 Duty to maintain 734 Injuries received in crossing 734, 735 TORTS : May or may not arise on contract 4 No wrong without a remedy 4 When actionable 3, 4, 5, 38, 132 Actions founded upon 131 Defined and illustrated 131, 132 Arising from the invasion of a right 132 Founded upon a violation of a public duty 133 Founded upon the infraction of a private compact or duty 134, 135 Privity of contract between wrong-doer and party injured 136 Founded on negligence 136 On a false warranty or deceit 137, 136 Moral and legal fraud distinguished 139 Novelty of actions 140 Fictitious or wager suits not permitted 141 Illegal or wrongful acts 142 Injuries arising from the exercise of a legal right 143 Rightful acts no ground of action , , 143 Explosions of steam boilers 143, 144 Removing lateral support to lands 144 Taking down or altering party walls 144 Burning over fallow ground 144 Cutting oflF supplies of wells 144 Obstructing ancient lights 145 Acts done under legislative authority 145 Injuries done in construction of canals 145 Consent of injured party bars action 146 Demand or notice before suit brought 146 Sphtting demands 146 Damages not caused by wrongs, not actionable 146 Damnum sine injuria 147 Judicial acts do not give right of action 147 Wrong without actual damage, is actionable 147 Malicious refusal to receive a vote actionable 148 Continuing tortious acts 148 Abusive language in the street 148 Bringing an action in the name of another 148 Refusal of banker to cash a check 148 INDEX. 819 TORTS — Continued. Page. Trespass on lands without damage 148 Diversion of water-course without damage 148 Cutting and taking away grass in highway 148 Damages when too remote, and when not 148 Damages in actions of slander 149 Refusal of teacher to instruct children 149 Preventing collection of demands 150 Seduction of pauper by keeper of poor-house 150 False swearing 150 Liability of agents for 263 Liability of agents to third persons for 264 Agent, when not liable for 266 Principal not hable for willful torts of agent 266 Liability of public agents for 267 Liability of public agents for torts of servants 267 Liability of principal for torts of agent 287 Principal liable for wrongs which he directs 2i^7 Principal liable for negligent performance of duty by agent 287 Principal, when liable for fraud of agent 287 Principal liable for tortious act ratified by him _ 288 Principal not liable for willful torts of agent 288 Liability of principal for mistakes of agent 288 Waiving tort and bringing assumpsit , 405 Attachment will not lie in action of 413 TRANSFER: Of bills and notes 585 TRESPASS: Liability of agent for malicious 264 Principal not liable for willful trespass of agent 266 TRUST : And confidence as a consideration 101 TRUSTEES: Contracts by 78 Effect of depositing trust fund in name of , 503 TRUSTEE PROCESS: Name applied to attachments in New England 410 aSAGE: Not the same thing as custom 127 Office or object of custom or 128 When permitted to control contract 128 Illegal custom or .,..,... . 129 Influence of, in construction of contracts 223 Proof of, in relation to agency 229 Effect of, on agency 243 Effect of, on bailments , 496 820 INDKX. USURY. PAoit Who may set up defense of 158 When a defense against a bank 515 Who piay not set up defense of 600 WAGERS: When an action will or will not lie upon 142 WATER: Cutting off underground current, when not actionable 144 WAR: Influence of, on agency 215 WARRANTY: When agent may give 222 ^ uctioneer cannot bind his principal by 478 When auctioneer liable on 481 Recouping damages for breach of, in action on a note 615 WASTE: Jurisdiction in equity for an account in cases of 187 WAY: Unauthorized use of right of, actionable .... 142 WELL: Injury to others from digging of^ when not actionable 144 WILL: Breach of agreement to compensate services by 269 J